Federated States of Micronesia v Moroni [1994] FMSC 43; 6 FSM Intrm. 575 (App. 1994) (22 November 1994)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as FSM v Moroni, [1994] FMSC 43; 6 FSM Intrm. 575 (App. 1994)

FEDERATED STATES OF MICRONESIA,
Appellant,

vs.

RONALD MORONI,
Appellee.

APPEAL CASE NO. P10-1993

OPINION

Argued: February 7, 1994
Decided: November 22, 1994

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court*
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court**

* Associate Justice, Chuuk State Supreme Court, Weno, Chuuk
** Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellant:
Susan Bussey, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Appellee:
Ronald Moroni, Esq. (in pro per)
P.O. Box 1618
Kolonia, Pohnpei FM 96941

* * *

HEADNOTES

Appeal and Certiorari ─ Standard of Review
The standard of review for an appeal from the trial division's determination of an administrative agency appeal is whether the finding of the trial division was justified by substantial evidence of record. FSM v. Moroni, [1994] FMSC 43; 6 FSM Intrm. 575, 577 (App. 1994).

Public Officers and Employees
The Title 51 provision barring nonresident workers from gainful employment for other than the employer who has contracted for him does not apply to national government employees because the national government is not an employer for the purposes of Title 51 of the FSM Code and does not contract with the Chief of the Division of Labor for employment of nonresident workers. FSM v. Moroni, [1994] FMSC 43; 6 FSM Intrm. 575, 578 (App. 1994).

Public Officers and Employees
Title 51 does not preclude nonresident national government employees from engaging in off-hours, secondary, private sector employment, but simply means that nonresident national government employees must comply with its statutory provisions covering the private sector employment of nonresidents in order to engage in secondary employment. FSM v. Moroni, [1994] FMSC 43; 6 FSM Intrm. 575, 579 (App. 1994).

Statutes ─ Construction
Courts prefer to read different sections of the same statute in a manner that permits them to be consistent with each other rather than to be inconsistent or at cross purposes. FSM v. Moroni, [1994] FMSC 43; 6 FSM Intrm. 575, 579 (App. 1994).

Appeal and Certiorari ─ Standard of Review
An issue not presented to and ruled upon by the trial court cannot properly come before the appellate division for review. FSM v. Moroni, [1994] FMSC 43; 6 FSM Intrm. 575, 579 (App. 1994).

* * *

COURT'S OPINION

MARTIN YINUG, Associate Justice:

This case comes before us on a direct appeal by the FSM from the judgment of the Trial Division entered August 17, 1993, reversing the decision of the FSM Secretary of Resources and Development which denied Ronald Moroni's application for a foreign investment permit. The sole issue on appeal is whether the judgment of the Trial Division was justified by substantial evidence of record. We conclude that it was and affirm the judgment below.

BACKGROUND

In January, 1993, Mr. Ronald Moroni, a U.S. citizen employed by the FSM National Government as an attorney in Pohnpei for the FSM Congress, applied for and obtained a Pohnpei State foreign investment permit to engage in business planning and consulting and to provide related legal services.

In February, 1993, Moroni filed a similar application with the Secretary of Resources and Development of the FSM National Government.

In April, 1993, the Secretary denied Moroni's application on the ground that as an employee of the FSM National Government Moroni was ineligible for a permit. The Secretary's decision relied upon an opinion signed by the Attorney General and based upon an analysis of Sections 141 and 122 of Title 51, the Protection of Resident Workers Act.

In May, 1993, Moroni appealed the Secretary's decision to the Appellate Division of the FSM Supreme Court. The Appellate Division remanded the matter to the Trial Division of the FSM Supreme Court reasoning "that an appeal from an adverse administrative decision should properly be filed first in the trial division." Moroni v. Secretary of Resources & Dev., [1993] FMSC 26; 6 FSM Intrm. 137, 138 (App. 1993).

As there was no factual dispute, the parties stipulated upon remand that the only question to be resolved by the Trial Division was whether Title 51 provided a valid legal basis for the Secretary's action. With no further evidence required and the record being adequate to reach the legal issue, the Trial Division heard oral argument in August, 1993.

The Trial Division found that Title 51 was not applicable to Moroni, reversed the Secretary's decision, and ordered the issuance of a foreign investment permit to Moroni.

The FSM, appellant in this action, contends that Moroni's application was lawfully denied, that the Trial Division's finding was erroneous, and that its order should be vacated and the permit revoked.

STANDARD OF REVIEW

We must first determine which standard of review is to be applied in this case. The proper standard is governed by Title 17 of the FSM Code, which establishes the procedures to be followed in an appeal from an agency action. The standard is not, as the FSM contends in its brief, "whether the action was lawful." The FSM incorrectly points to 17 F.S.M.C. 111 as providing the standard of review to be applied by this Court. That section establishes the standard of review to be applied by the Trial Division of the Supreme Court of the FSM in reviewing agency action. This case is no longer before the Trial Division, as the FSM surely realizes. The review this Court must undertake is to "consider the finding of the Trial Division in light of whether it was justified by substantial evidence of record." 17 F.S.M.C. 112. We are not reviewing the lawfulness of the Secretary's denial of Moroni's Foreign Investment Permit; we are reviewing the finding of the trial court in accordance with 17 F.S.M.C. 112.

LEGAL ANALYSIS

The trial judge in reversing the Secretary and ordering that Moroni be issued a Foreign Investment Permit, took a different view than the Attorney General of Sections 141 and 122 of Title 51. He specifically found that the text of Section 141 rendered Title 51 inapplicable to Moroni, and that Section 122 served only to govern the potential employability in the private sector of a nonresident employee of the FSM National Government. After reviewing the text of the pertinent provisions of Title 51 we hold that the trial court's finding was justified by substantial evidence of record.

51 F.S.M.C. Section 141 provides:

(1) It shall be unlawful for any nonresident worker admitted into the Trust Territory under the provisions of this title to engage in any other employment for compensation or for profit other than from the employer who has contracted with the chief [of the Division of Labor] for the employment of such nonresident worker in the Trust Territory.

The FSM argues unconvincingly that the language of Section 141 precludes Moroni's permit. It reasons that Moroni is a nonresident worker attempting to engage in employment for profit by working for an employer other than the FSM National Government and that therefore, on the basis of Section 141, he must be denied a foreign investment permit. This analysis results from an incomplete reading of the statute.

Section 141 is not applicable to Moroni. First, the term "employer," contained in Section 141, is expressly defined so as to exclude the National Government. Section 112(4) of Title 51 states that for purposes of Title 51 the term "Employer" "does not include any branch or agency of the Trust Territory Government ...." Since the term "employer" used in the text of Section 141 does not mean Moroni's employer, the FSM National Government (successor to the Trust Territory Government), the section cannot be read to apply to Moroni. Section 141 applies only to nonresident workers employed in the private sector, not those employed by the FSM government.

In particular, Section 141 is addressed to nonresident workers employed by an "employer who has contracted with the chief for the employment of such nonresident worker in the Trust Territory." Not only does the term "employer" not include Moroni's employer, but Moroni's employer was not one that "contracted with the chief" for the employment of Moroni in the FSM. In recruiting Moroni to work as an attorney for the FSM Congress, the FSM National Government, because it does not fall under Title 51's definition of "Employer," was not required to contract with the Chief of the Division of Labor over Moroni's employment as otherwise required by 51 F.S.M.C. Section 135. Sections 131 through 139 of Title 51 establish the proper procedures whereby an employer (meaning a private sector employer) may hire nonresident workers. However, since the FSM National Government is not an employer as that term is defined for purposes of Title 51, it need not comply with Title 51's procedures for hiring nonresident workers and thus did not "contract with the chief" over Moroni's employment.

Finally, section 141 applies only to nonresident workers admitted to the FSM under the provisions of Title 51. Due to the FSM National Government's exclusion from Title 51's definition of employer, as we have explained, the FSM National Government did not have to comply with the Title's nonresident hiring procedures in recruiting Moroni. It did not, and, accordingly, Moroni was not admitted to the FSM under the provisions of Title 51.

In sum, the text of Section 141 leaves room for no interpretation other than that it does not cover Moroni. The FSM National Government is not covered by Title 51's definition of employer. The FSM National Government did not contract with the "chief" over Moroni's employment. And Moroni was not admitted to the FSM under the provisions of Title 51. Section 141 does not therefore apply to Moroni or make secondary employment unlawful for him. This was the position taken by the trial judge and our independent review of the text he considered leaves us with no viable interpretation other than the one he reached.

The trial judge's determination that Title 51 did not provide a lawful basis for the Secretary's action was also based on an interpretation of Section 122 of Title 51.

51 F.S.M.C. Section 122 states:

Nothing in chapter 1 of this title ... shall be construed to exempt employees of the [government] in seeking employment during hours not engaged in the performance of Government employment, and employers other than the [government] in hiring such employees or prospective employees, from complying fully with the provisions of such chapter ....

The trial judge ruled that the meaning of this problematic section of the statute was not, as the FSM argues, that nonresident National Government employees were precluded from secondary employment, but rather that as far as secondary, private sector employment of nonresident National Government employees was concerned, the provisions of Title 51 governing the private sector hiring of nonresident workers must be followed.

We agree with the trial judge's interpretation of Section 122. The FSM argued in the Trial Division that the meaning of Section 122 is that National Government employees are not exempted, via Section 112's definition of "Employer," by Section 141 from the prohibition of secondary employment applied to private sector workers. This view at best ignores Section 112's explicit exclusion of the FSM National Government from the definition of "Employer," and at worst implies that it simply does not mean what it says. In any event, it requires that Sections 112, 122, and 141 be viewed as confused and conflicting, with Section 122 trumping the others in final analysis. "Unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result." Michelsen v. FSM, [1988] FMSC 25; 3 FSM Intrm. 416, 426 (Pon. 1988).

After reviewing the text of Section 122, we arrive at the same interpretation as the trial judge. Section 122 does not mean that nonresident FSM National Government employees cannot be secondarily employed in the private sector. It simply means that the secondary employment of nonresident FSM National Government employees is governed by the provisions of Title 51 covering the private sector employment of nonresident workers. This interpretation is especially compelling in light of the fact that it allows Sections 112, 122, and 141 of Title 51 to be read and to exist in harmony with each other. We prefer to read different sections of the same statute in a manner that permits them to be consistent with each other rather than to be inconsistent or at cross purposes.

In making our ruling, we are not required to consider the argument contained in the FSM's brief that Section 142 of Title 52 provides a lawful ground for the Secretary's action. No such argument was raised below and, as the Attorney General well knows, nor can it be raised now. An issue not presented to and ruled upon by the trial court cannot properly come before the Appellate Division for review. Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151, 154 (App. 1987); Loch v. FSM, [1986] FMSC 12; 2 FSM Intrm. 234, 236 (App. 1986).

Nor do we rule upon Moroni's argument that Section 142 of the Compact of Free Association guarantees him the right to reside and work in the FSM. Since the parties stipulated before the Trial Division that the only issue for determination was whether Title 51 provided lawful grounds for the Secretary's denial of a foreign investment permit to Moroni, and since we are only reviewing the Trial Division's decision on that issue, Moroni's argument based on the Compact of Free Association is not properly before us. Even if it were, we would decline to answer at this present time the question of an individual's right to enforce a treaty as we can decide this case on other grounds.

After oral argument the FSM pursuant to Rule 28(j) of the Appellate Rules amended its brief to include an argument based upon 32 F.S.M.C. section 217 claiming that the trial judge had exceeded his authority in ordering the issuance of Moroni's permit. Again, given the parties' stipulation before the trial court, and the precise review we are performing, this argument is not properly before us. We decline accordingly to consider it. Even if we did consider it we would not accept it as all Section 217 does is to permit the President 20 days to reverse, on the grounds of adversity to a compelling national interest, a permit action taken by the Secretary. Under the statute the President's power to act had elapsed by the time of the trial judge's ruling. The trial judge was well within the scope of his proper authority.

CONCLUSION

We hold that the findings of the trial judge with regard to the meanings of Sections 141 and 122 of Title 51 are supported by substantial evidence of record. The judgment of the trial court is affirmed.