Andrew v Federated States of Micronesia Social Security Administration [2003] FMSC 46; 12 FSM Intrm. 101 (Kos. 2003) (22 September 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101 (Kos. 2003)

[2003] FMSC 46; [12 FSM Intrm. 101]

TADASY ANDREW,
Petitioner,

vs.

FSM SOCIAL SECURITY ADMINISTRATION,
Respondent.

CIVIL ACTION NO. 2003-2003

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: September 10, 2003
Amended: September 22, 2003

APPEARANCES:

For the Petitioner:
Sasaki L. George, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

For the Respondent:
Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

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HEADNOTES

Social Security
While section 204 of Title 53 provides that the Social Security Board shall receive and maintain files and records of all employers and all employees subject to this Title, no specific Social Security rule or regulation requires that the Board’s final decision take the form of an "order," or that it be "entered" in some specifically defined way. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 103 (Kos. 2003).

Social Security
Section 203(2) of Title 53 provides that the Social Security Board may hold hearings or make decisions upon hearings delegated to others for the purpose of determining any question involving any right, benefit, or obligations of any person subject to Title 53. Thus Social Security has in part a quasi-judicial function. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 103 (Kos. 2003).

Civil Procedure
An "order" is the direction of a court or judge made or entered in writing, and not included in

[12 FSM Intrm. 102]

a judgment, which determines some point or directs some step in the proceedings. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 103 (Kos. 2003).

Social Security; Statutes - Construction
Since "enter" means to place anything before a court, or upon or among the records, in a formal and regular manner, and usually in writing, and since common sense must play a part in the way that an agency’s statutorily mandated procedures are interpreted, a letter from the Social Security Board stating that it is a final decision by the Board, and that the petitioner has the option of appealing to the FSM Supreme Court, is a final, entered order within the meaning of 53 F.S.M.C. 208. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 103-04 (Kos. 2003).

Judgments
Every judgment shall be set forth in a separate document and a judgment is not effective until it is entered chronologically in the civil docket on the page assigned to the action and is marked with its file number. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 104 (Kos. 2003).

Administrative Law; Civil Procedure
The FSM Rules of Civil Procedure do not apply to proceedings before administrative agencies. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 104 (Kos. 2003).

Administrative Law - Statutory Construction; Statutes - Construction
When there is an apparent, or even putative, conflict between a statute of general application like the Administrative Procedures Act, and a statute directed toward a particular agency, the more specific provisions will apply. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 104 (Kos. 2003).

Social Security
Since the Social Security Board has the power to delegate duties and responsibilities to such employees as it deems feasible and desirable to carry out the provisions of Title 53, a letter that begins with "[o]n behalf of the FSMSSA Board of Trustees . . .&#" andinues wues with "thh "the Board has denied your client’s appeal," and which is signed by the Administrator, is properly signed. Andrew v. FSM Social Sec. Admin., 12 FSM Intrm, 104. 2003).

<

Administrative Law - Judicial Review; Social Security
The court will not add additional time for a petitioner to seek judicial review when the social security statute gives 60 days and this is a considerable amount of time, and when even given the exigencies of mail service in Micronesia, equitable considerations do not require that additional time be given. Andrew v. FSM Social Sec. Admin., [2003] FMSC 46; 12 FSM Intrm. 101, 104 (Kos. 2003).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The respondent FSM Social Security Administration ("the SSA") has moved for judgment on the pleadings on the basis that the petition for judicial review in this case is time barred. 53 F.S.M.C. 208(1) provides that "[a]ny person aggrieved by a final order of the [SSA] Board may obtain a review of the order in the Trial Division of the High Court by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part." The SSA’s motion is granted. The complaint for judicial review, styled "complaint for judicial review," is

[12 FSM Intrm. 103]

dismissed with prejudice.

This case is an appeal to this court from a final decision by the SSA. That decision was in the form of a May 6, 2003 letter to counsel for the petitioner Tadasy Andrew ("Andrew"). The May 6, 2003 letter was itself a decision on an intra-SSA appeal from the SSA’s initial administrative determination. It appears that the sole substantive question presented is the date of Andrew’s birth for purposes of determining SSA benefits. Originally the SSA had determined that Andrew’s date of birth was February 20, 1944, but later found his date of birth to be February 20, 1943. Andrew contends that his date of birth is actually one year earlier, February 20, 1942. The May 6, 2003 letter, a copy of which is attached as an exhibit to Andrew’s response to defendant’s August 12, 2003 motion to dismiss, states in pertinent part as follows:

Regrettably, the Board has denied your client’s appeal to correct the Date of Birth to February 20, 1942. The Board has granted Mr. Andrew’s retirement benefit based on the birth date of February 20, 1943 as provided by the Kosrae State Personnel office.

This course of action is the final decision by the Board, therefore should your client agree otherwise, you may appeal the final order in the Trial Division of the Supreme Court of the Federated States of Micronesia by filing in court, within 60 days of this order.

(bold in original, emphasis added). On July 14, 2003, or sixty-nine days after May 6, 2003, Andrew filed his petition for judicial review with this court.

The SSA has moved for judgment on the pleadings on the basis that 53 F.S.M.C. 208(1) requires that a petition for review be filed within sixty days of the SSA’s final decision. In response, Andrew urges that the May 6, 2003 letter is not a "final order" that was "entered" as required by 53 F.S.M.C. 208(1). He also looks to various sections of the Administrative Procedures Act, 17 F.S.M.C. 101 et seq., in asserting that the Board chairman must sign any final order. He points out that Mr. Charles Chieng is chairman of the Board, and that the May 6, 2003 letter was not signed by him, but by Mr. Alex Narruhn, who is shown on the letter as an "administrator." Andrew’s third point is that although the letter was dated May 6, 2003, it was not mailed until May 14, 2003. He urges that the 60 day period does not begin to run until the date of mailing, and that in addition 6 additional days should be added for mail service. Calculated in this way, he urges that the complaint was filed in a timely fashion.

Andrew’s first contention is that the SSA’s decision is not final until that decision has taken the form of an "order," and until that "order" has then been "entered." While section 204 of Title 53 provides that "[t]he Board shall receive and maintain files and records of all employers and all employees subject to this Title," neither party points to any specific SSA rule or regulation (nor has the court been successful in locating any) which would require that the SSA Board’s final decision take the form of an "order," or that it be "entered" in some specifically defined way. In the absence of any such requirement, the court is left with the words of 53 F.S.M.C. 208(1) alone.

Section 203(2) of Title 53 provides that the SSA Board "may hold hearings or make decisions upon hearings delegated to others for the purpose of determining any question involving any right, benefit, or obligations of any person subject to this Title." Thus the SSA has in part a quasi-judicial function. At the same time, it seems fair to say that terms like "order" and "entered" when employed in the context of legal proceedings are generally associated with the functions of a formally constituted court. For example, Black’s Law Dictionary defines "order" as the "[d]irection of a court or judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings," Black’s Law Dictionary 1096 (6th ed. 1990), while "enter" means "to place anything before a court, or upon or among the records, in a formal and regular manner, and usually in

[12 FSM Intrm. 104]

writing," id. at 531. Here, in a the context of the administrative proceeding before the SSA where no rule or regulation provides specific determinative criteria, the question is whether the May 6, letter meets the spirit, if not the letter, of these definitions. In such a case, the court must be especially mindful that in reviewing the SSA’s decision, "[c]ommon sense, after all, must play a part" in the way that an agency’s - here the SSA’s - statutorily mandated procedures are interpreted. Sierra Club v. Costle, [1981] USCADC 262; 657 F.2d 298, 398 (D.C. Cir. 1981).

The May 6, 2003 letter states that "[t]his course of action is the final decision by the Board," and that Andrew had the option of appealing to this court. By its stated terms, the letter was the final decision by the Board, and as such is properly viewed as being both "final" and an "order." Although it was not "entered" in any specified way, it was placed of record in the sense that Andrew was given notice of the SSA’s determination by letter to his legal counsel. Thus, the court concludes that the May 6, 2003 letter was a final, entered order within the meaning of 53 F.S.M.C. 208.

Although Andrew does not cite the FSM Rules of Civil Procedure, he appears to be making an argument analogous to one that might be made under FSM Rules of Civil Procedure 58 and 79(a), both of which pertain to judgments entered in the course of a judicial proceeding. Rule 58 provides that "[e]very judgment shall be set forth in a separate document," and further provides that a judgment is not effective until entered as provided in Rule 79(a). Rule 79(a) in turn provides that all "judgments shall be entered chronologically in the civil docket on the page assigned to the action and shall be marked with its file number." The problem with this is that the FSM Rules of Civil Procedure to not apply to proceedings before administrative agencies. FSM Civ. R. 1 (providing that the rules govern in cases before the FSM trial division). Further, "judgment" is more a legal term of art than "order," or "enter," and no contention is made that the May 6, 2003 letter constitutes a "judgment."

Andrew also looks to various sections of the Administrative Procedures Act, 17 F.S.M.C. 101 et seq. in urging that the board chairman must sign any such final order. Mr. Charles Chieng is chairman of the board; the May 6, 2003 letter was signed by Mr. Alex Narruhn. However, where there is an apparent, or even putative, conflict between a statute of general application like the Administrative Procedures Act, and a statute directed toward a particular agency - in this case the applicable provisions of Title 53 of the FSM Code - the more specific provisions will apply. Olter v. National Election Comm’r[1987] FMSC 16; , 3 FSM Intrm. 123, 129 (App. 1987). Section 202(3) of Title 53 provides that the SSA Board "shall have the power to delegate duties and responsibilities to such employees as it deems feasible and desirable to carry out the provisions of this Title." The May 6, 2003 letter begins with "[o]n behalf of the FSMSSA Board of Trustees ...." and continues with "the Board has denied your client’s appeal." The letter is signed by Mr. Alexander Narruhn, and under his signature appears the notation "Administrator." Andrew does not contend that the letter is anything other than what it appears to be. The record is devoid of anything to suggest that Mr. Narruhn lacked delegated authority under 53 F.S.M.C. 202(3) to sign the letter on the Board’s behalf. Hence, the fact that the letter is signed by Mr. Narruhn, and not by Mr. Chieng, is not determinative. Mr. Narruhn properly signed the letter.

Lastly, Andrew asserts that although the letter was dated May 6, 2003, it was not mailed until May 14, 2003 (Andrew’s counsel received the letter on May 19, 2003), and that the 60 day period under 53 F.S.M.C. 208(1) should be calculated from this time. He also asserts that 6 additional days should be added for mail service. However, this 6 day additional requirement for mail service is contained in FSM Civil Rule 6(e), and the civil rules do not apply to administrative proceedings. Since the statute is silent, the court will not add additional time. A factor the court considers is that 60 days is the time given in which a claimant may decide to appeal. This is a considerable amount of time, and even given the exigencies of mail service in Micronesia, equitable considerations do not require that additional time be given. Sixty calendar days from the date of the letter was adequate.

[2003] FMSC 64; [12 FSM Intrm. 105]

Accordingly, the SSA’s motion for judgment on the pleadings is granted. The petition for judicial review is dismissed with prejudice.

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