FSM SUPREME COURT APPELLATE DIVISION
Cite as Edmund v. Joseph, 24 FSM R. 555 (App. 2024)
WELFRED EDMUND,
Appellant,
vs.
STEVENSON JOSEPH, in his official capacity as
Governor of Pohnpei Government, MALPHINA
NELPER, in her official capacity as the Chief of
Personnel, Labor and Manpower Development,
and the STATE OF POHNPEI,
Appellees.
APPEAL CASE NO. P8-2020
(Civil Action No. 2017-039)
OPINION
Argued: June 21, 2024
Decided: August 6, 2024
BEFORE:
Hon. Dennis L. Belcourt, Temporary Justice, Presiding*
Hon. Cyprian J. Manmaw, Temporary Justice**
Hon. Jayson Robert, Temporary Justice***
*Retired Justice, FSM Supreme Court
**Chief Justice, Yap State Court, Colonia, Yap
***Chief Justice, Chuuk State Supreme Court, Weno, Chuuk
APPEARANCES:
For the Appellant:
Vincent Kallop, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941
For the Appellee:
Monalisa Abello-Pangelinan, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia Pohnpei FM 96941
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An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). Thus, the review is de novo because issues of law are reviewed de novo on appeal. Edmund v. Joseph, 24 FSM R. 555, 558 (App. 2024).
The standard of review of a summary judgment on appeal is a de novo determination that there was no genuine issue of material fact and that the prevailing party was entitled to judgment as a matter of law. Edmund v. Joseph, 24 FSM R. 555, 558 (App. 2024).
A trial court's factual findings are reviewed using an abuse of discretion standard. An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. Such abuses must be unusual and exceptional; an appeals court will not merely substitute its judgment for that of the trial judge. In making this determination, the appellate court must view the evidence in the light most favorable to the appellee. Edmund v. Joseph, 24 FSM R. 555, 558 (App. 2024).
State law claims do not reduce or affect the FSM Supreme Court's jurisdiction to address the claims which arise under the national constitution or national law. Edmund v. Joseph, 24 FSM R. 555, 558 (App. 2024).
No dismissal or demotion of a permanent Pohnpei state employee is effective for any purpose until the management official transmits to the employee, by the most practical means, a written notice setting forth the specific reasons for the dismissal or demotion and the employee's rights of appeal. Edmund v. Joseph, 24 FSM R. 555, 558-59 (App. 2024).
The Pohnpei Personnel Review Board, which is nominated by the Governor with the legislature's advice and consent, is to hear suspended, demoted, or dismissed Pohnpei state employees' appeals 15 days after the Director receives the employee's appeal. The 15-day time limitation is directory and not mandatory as it does not prescribe what happens if the prescribed time period is not adhered to. Edmund v. Joseph, 24 FSM R. 555, 559 (App. 2024).
The Declaration of Rights has two equal protection guarantees. Section 3 provides that a person may not be denied the equal protection of the laws, while Section 4 provides that equal protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status. Section 4 is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination. Edmund v. Joseph, 24 FSM R. 555, 559 (App. 2024).
Someone asserting that he was subject to invidious discrimination based on sex, race, ancestry, national origin, language, or social status in violation of the FSM and Pohnpei Constitutions must establish a factual basis for the assertion that he was being discriminated against under any such classification. Edmund v. Joseph, 24 FSM R. 555, 559 (App. 2024).
The court has the discretion to grant an extension, after the deadline has been passed, upon showing of excusable neglect. The determination of what sorts of neglect that can be considered "excusable" is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include the danger of prejudice to the nonmovant, the length of delay and its potential impact on judicial proceedings, the reason for the delay including whether it was in the movant's reasonable control, and whether the movant acted in good faith. Edmund v. Joseph, 24 FSM R. 555, 560 (App. 2024).
The trial court did not abuse its discretion in granting the defendants' motion for leave to file an answer and opposition to the appellant's motion for entry of default after the deadlines had passed because the late filings were due to an arson incident, damaging the equipment and files of the Pohnpei Attorney General's Office. Edmund v. Joseph, 24 FSM R. 555, 560 (App. 2024).
An appellate court can find reversible error only: 1) if the trial court findings were not supported by substantial evidence in the record; or 2) if the trial court's factual finding was the result of an erroneous conception of the applicable law; or 3) if, after reviewing the entire body of the evidence and construing it in the light most favorable to the appellee, it is left with a definite and firm conviction that a mistake has been made. Thus, regardless of whether the defendants' apparent failure to timely comply with discovery requests was excusable, it is relevant on the appeal of the summary judgment only to the extent the discovery could defeat summary judgment. Edmund v. Joseph, 24 FSM R. 555, 561 (App. 2024).
An appellant's claim that the initial dismissal of his case was error is moot when the trial judge that issued the dismissal recused herself from further handling the case and the dismissal was reconsidered and set aside by the successor trial justice. Edmund v. Joseph, 24 FSM R. 555, 561 (App. 2024).
Constitutional due process requires that before a nonprobationary employee's dismissal may be implemented, the employee must be given some opportunity to respond, either in person or in writing, to the charges against him, stating why the proposed action should not be taken. This is a fundamental due process requirement. Once these conditions are fulfilled, a tenured government employee's dismissal may be implemented before termination of the employee's appeal rights. Thus, when the Pohnpei Public Service Director sent a letter notifying a Pohnpei employee of the intention to terminate him, and he had the opportunity to respond, and he did so, he was properly terminated. Edmund v. Joseph, 24 FSM R. 555, 561 (App. 2024).
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DENNIS L. BELCOURT, Temporary Justice:
Appellant Welfred Edmund appeals from the decision of the trial court on November 6, 2020, [Edmund v. Oliver, 23 FSM R. 79 (Pon. 2022)], granting summary judgment in favor of appellees Stevenson Joseph, in his official capacity as Governor of Pohnpei Government, Malphina Nelper, in her official capacity as the Chief of Personnel, Labor and Manpower Development, and the State of Pohnpei.
The appellant, Welfred Edmund, was a Pohnpei State Police Lieutenant who was terminated on March 27, 2017, from the Department of Public Safety. On June 30, 2017, Appellant Edmund filed a complaint in the trial court, alleging that his rights to due process, equal protection, and overall civil rights have been violated because he had been unlawfully terminated and his appeal had not been heard.
The trial court, granting the appellee's motion for summary judgment, issued a judgment on November 6, 2020 dismissing the appellant's action without merits, and that the appellant take nothing. The appellee, the Pohnpei State Government was to recover its costs of action.
Appellant Welfred raises the following on appeal:
• The Trial Court abused its discretion in its issuance of judgment derived from its partially granting the appellees' motion for summary judgment, denial of the appellant's motion for reconsideration, as well as his brief for back pay.
• The Trial Court erred in law and fact in its issuance of judgment against the appellant in light of the appellees' violations of deadlines, failure to respond as required by the Court's Rules of Discoveries and denial of appellant's filings, as well as not giving weight to material evidence by the appellant.
Issues of law are reviewed de novo on appeal. George v. Nena, 12 FSM Intrm. 310, 313 (App. 2004). An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). Thus, the review is de novo. Chuuk v. Secretary of Finance, 9 FSM R. 424, 430 (App. 2000); Taulung v. Kosrae, 8 FSM R. 270, 272 (App. 1998); Nahnken of Nett v. United States, 7 FSM R. 581, 585-86 (App. 1996).
The standard of review of a summary judgment on appeal is a de novo determination that there was no genuine issue of material fact and that the prevailing party was entitled to judgment as a matter of law. Kosrae v. Skilling, 11 FSM R. 311, 315 (App. 2003); Department of Treasury v. FSM Telecomm. Corp., 9 FSM R. 353, 355 (App. 2000).
A trial court's factual findings are reviewed using an abuse of discretion standard of review. An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. Such abuses must be unusual and exceptional; an appeals court will not merely substitute its judgment for that of the trial judge. Panuelo v. Amayo, 12 FSM R. 365, 372 (App. 2004). In making this determination the appellate court must view the evidence in the light most favorable to the appellee.
This matter arises from the actions of the Pohnpei State Government. The appellant did not pursue this case at the Pohnpei State Supreme Court. Nevertheless, this Court has pendent jurisdiction as "state claims do not reduce or affect the jurisdiction of the Court to address the claims which arise under the national constitution or national law . . . ." Ponape Chamber of Commerce v. Nett Mun. Gov't, 1 FSM R. 389, 392 (Pon. 1984).
The Court will address the Appellant's claims on due process and equal protection. Appellant Edmund was employed by the Pohnpei State Department of Public Safety. His termination was a result of Edmund allegedly interfering with the execution of an arrest warrant. Title 9 of the Pohnpei State Code provides the following provision for dismissal of employees:
§ 2-139. Disciplinary action: dismissal; demotion. A management official may, for disciplinary reasons, dismiss or demote an employee for such causes that will promote the efficiency of the public service. Demotions may also be made for reasons other than disciplinary ones. The personnel regulations shall specify the circumstances in which such demotions may be authorized. No dismissal or demotion of a permanent employee shall be effective for any purpose until the management official transmits to the employee, by the most practical means, a written notice setting forth the specific reasons for the dismissal or demotion and the employee's rights of appeal. A copy of the notice shall be filed with the Director without delay.
(italics added).
On March 14, 2017, the DPS Director's Office sent a letter to Mr. Edmund informing him of their intentions to terminate him as a result of his actions on November 7, 2016. The letter also stated their reasons which included his past actions which had led to his prior suspensions. On the letter, Edmund was informed of his right to appeal. The provision provides for "a written notice setting forth the specific reasons for the dismissal or demotion and the employee's rights of appeal" as required by 9 Pon. C. § 2-139. On March 16, 2017, Edmund responded, explaining why he should not be terminated. The Director then terminated him on March 27, 2017. Edmund appealed his termination to the Pohnpei Personnel Review Board on March 28, 2017. Counsel for Edmund on two occasions requested for an administrative hearing of his appeal pursuant to the Pohnpei State PSSR. On May 02, 2017, Edmund was informed by the Office of the Attorney General that there is no quorum of the Personnel Review Board present to conduct the administrative hearing. The administrative hearing was eventually held on August 8, 2018, with a decision issued on August 20, 2018, upholding Edmund's termination.
Due Process
Appellant contends that his due process rights were violated as a result of the administrative hearing taking place a year after his appeal to the Pohnpei Personnel Review Board. 9 Pon. C. § 2-140 provides for appeals from suspensions, demotions, or dismissal. The Personnel Review Board, nominated by the Governor with the advice and consent of the legislature, shall hold a hearing 15 days after the Director receives an appeal from an employee suspended, demoted, or dismissed.
This Court has not been provided with any decisions of the Pohnpei Supreme Court determining what the Pohnpei State Legislature intended to be the effect of noncompliance with the 15-day time limitation in 9 Pon. C. § 2-140. In Poll v. Victor, 18 FSM R. 235 (Pon. 2012), the trial division noted that the 15-day time limitation provision in 9 Pon. C. § 2-140 is directory and not mandatory as it does not "prescribe what happens if the prescribed time period is not adhered to." Finding the time limitation to be directory, the trial division gave no effect to its violation on the outcome of the hearing that was held.
Equal Protection
The Constitution's Declaration of Rights has two equal protection guarantees. Section 3 provides that "[a] person may not . . . be denied the equal protection of the laws." FSM Const. art. IV, § 3. Section 4 provides that "[e]qual protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status." FSM Const. art. IV, § 4. Berman v. College of the FSM, 15 FSM R. 582, 591 (App. 2008).
Article IV, section 4 of the FSM Constitution provides that equal protection under the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language or social status. This provision of the Constitution is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination.
Appellant Edmund asserts Appellees violated his FSM Constitutional rights under section 4, i.e., that he was subject to discrimination based on sex, race, ancestry, national origin, language, or social status. Pl.'s Suppl. Compl. ¶ 28 (Jan. 30, 2019). He also invokes a similar right to be free from invidious discrimination under the protections of the Pohnpei State Constitution, Article 4, section 3. However, he does not establish a factual basis for an assertion that he was being discriminated against under any such classification.
Appellant's Motion for Summary Judgment
Appellant Edmund claims the trial court abused its discretion in granting the appellee's partial summary judgment as the court did not address the appellant's motions that were filed or the attachments. In the court order dated November 6, 2020, the trial judge acknowledged that the court was unaware of the appellant's motions for summary judgment as it did not make it into the judge's file. The trial judge then vacated the August 25, 2020 partial summary judgment and proceeded to address the appellant's motion for summary judgment with the appellee's motion for summary judgment as cross-motions for summary judgment. In its consideration, the trial judge denied the appellant's motion for summary judgment and granted the appellee's summary judgment motion. Furthermore, the trial court did acknowledge the appellant's motion and entered a judgment against the appellant. The trial court did not abuse its discretion.
Trial Court's acceptance of appellee's violations of court deadlines
Appellant Edmund claims that the trial court abused its discretion in its acceptance of the appellees' many violations of court deadlines. On July 19, 2019, the appellee filed its answer and affirmative defenses. In the answer, the appellees moved for leave of the court to allow the submission of the answer, considering the deadline is passed. The appellant also claims that on the same day the appellees filed an opposition to the appellant's motion for entry of default eleven days after the service of the appellant's motion for entry of default. However, pursuant to the FSM Rules of Civil Procedure, the Court has the discretion to grant an extension, after the deadline has been filed, upon showing of excusable neglect.1 Medabalmi v. Island Imports Co., 10 FSM R. 217, 219 (Chk. 2001).
The determination of what sorts of neglect that can be considered "excusable" is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [nonmovant], the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was in the reasonable control of the movant, and whether the movant acted in good faith.
Id. (citation omitted).
The appellees stated that the late filings were due to the arson incident, damaging the equipment and files of the Attorney General's Office. This resulted in the appellees having to relocate to a new office. The trial court, considering the arson causing the appellee to fail to meet the deadline, granted the appellee's motion for leave to file its answer through its order dated July 29, 2019. This implicitly denied the appellant's motion for entry of default. Furthermore, the trial court did not abuse its discretion in granting the appellee's motion for leave to file answer and opposition to the appellant's motion for entry of default.
Discovery
The appellant also stated that the appellees "have failed or refused to file or serve answers to the plaintiff's first set of discoveries," and "did not file any brief on back pay, as ordered by the trial court." However, "an appellate court can find reversible error only: 1) if the trial court findings were not supported by substantial evidence in the record; or 2) if the trial court's factual finding was the result of an erroneous conception of the applicable law; or 3) if, after reviewing the entire body of the evidence and construing it in the light most favorable to the appellee, it is left with a definite and firm conviction that a mistake has been made. Smith v. Nimea, 19 FSM R. 163, 169 (App. 2013)."
However, regardless of whether appellees' apparent failure to timely comply with discovery requests was excusable, it is relevant on the appeal of the summary judgment only to the extent the discovery could defeat summary judgment. Joe v. Kosrae, 13 FSM R. 45, 46-47 (Kos. 2004).
Initial dismissal
On September 20, 2017, the trial court issued an order of dismissal in this matter. Appellant Edmund asserts in his appeal that the trial court abused its discretion in issuing this order, as the management official issuing the notice of proposed adverse action is the brother-in-law of the trial judge. However, on the Court Order dated October 27, 2017, the trial judge recused herself from further handling the case. The dismissal was reconsidered and set aside by the successor trial justice, rendering the appellant's claim moot.
Back pay
Appellant Edmund relies on Poll v. Victor, 18 FSM R. 235, 245 (Pon. 2012) in his brief of back pay, stating that his termination was effected on August 08, 2018, when the administrative hearing took place. The trial court made a distinction between the case of Poll v Victor and this case. In Poll v Victor, Poll was awarded his back pay from the date he received his termination letter to the date the Ad Hoc Committee issued its decision as he was not afforded an opportunity to respond to the reasons he was terminated until the hearing was conducted. In the case of Edmund, Edmund was sent a letter by the DPS notifying him of their intention to terminate him. He had the opportunity to respond (and did so on March 16, 2017), and was terminated on March 27, 2017. This is discussed in Semes v. FSM, 4 FSM R. 66, 76-77 (App. 1989) which states the following:
Based upon the balancing of these interests . . . we conclude that constitutional due process requires that a nonprobationary employee . . . be given some opportunity to respond to the charges against him before his dismissal may be implemented. We adopt the conclusion of the Lourdermill court: "The opportunity to present reasons, either in person or in writing, why propose action should not be taken is a fundamental due process requirement. . . . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. Only when these conditions are fulfilled may dismissal of a tenured employee of the national government be implemented before termination of the employee's appeal rights.
Semes, 4 FSM R. at 76-77 (emphasis added).
The trial court did not abuse its discretion in its determination and issuance of its judgment dated November 6, 2020. Accordingly, we affirm the judgment of the trial court.
_______________________________Footnotes:
1 When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specific time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.
FSM Civ. R. 6(b).
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