Silbanuz v Leon [2017] FMSC 35; 21 FSM R. 336 (App. 2017) (13 September 2017)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P1-2013

ROSHINA R. SILBANUZ, )
)
Appellant, )
)
vs. )
)
PETE SAIMON PANUELO LEON, PEHERES )
PERDUS, PERSON JOSEPH, in their capacities )
as a constituted PERSONNEL REVIEW BOARD, )
DEPARTMENT OF TREASURY AND )
ADMINISTRATION, THOMAS S. PABLO, )
Director of Department of Treasury and )
Administration in official and personal capacity, )
MARCELO PETERSON, in his official and )
personal capacity, and POHNPEI GOVERNMENT, )
)
Appellees. )
_____________________________________________ )

OPINION

Argued: August 10, 2017
Decided: September 13, 2017

BEFORE:

Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Specially Assigned Justice, FSM Supreme Court*
Hon. Chang B. William, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, Chuuk State Supreme Court, Weno, Chuuk
**Chief Justice, Kosrae State Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellant: Salomon M. Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Appellees: Dana W. Smith, Esq. (argued)
Attorney General
Monaliza Abello-Pangelinan, Esq. (motion)
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review Decisions Reviewable
When the appellant has raised the issue that her due process rights were violated by the manner of the Pohnpei appellate division’s dismissal of her appeal and when, if the case ever came properly before the FSM Supreme Court appellate division, it would have appellate jurisdiction over at least part of the underlying case’s merits, because the appellant, in her trial court complaint, raised her due process and equal protection claims under both the FSM and Pohnpei Constitutions and pled her civil rights claim under the national civil rights statute, the FSM Supreme Court appellate division has jurisdiction to consider the one FSM Constitution due process issue she raises in this appeal. Silbanuz v. Leon, 21 FSM R. 336, 340 (App. 2017).

Appellate Review Motions
Generally, an appellate court has broad discretion to grant an enlargement of time upon a showing of good cause, but enlargement is not automatic. Silbanuz v. Leon, 21 FSM R. 336, 340 (App. 2017).

Appellate Review Standard Civil Cases Abuse of Discretion
A court abuses its discretion when its decision is clearly unreasonable, arbitrary, or fanciful; or it is based on an erroneous conclusion of law; or the record contains no evidence on which the court could rationally have based its decision. Silbanuz v. Leon, 21 FSM R. 336, 340 (App. 2017).

Appellate Review Motions; Appellate Review Standard Civil Cases Abuse of Discretion
The Pohnpei appellate division’s failure to rule on a motion to enlarge time by four days is a failure to exercise discretion (to grant or deny a motion), and is itself an abuse of discretion. Silbanuz v. Leon, 21 FSM R. 336, 341 (App. 2017).

Appellate Review
The computation of time in the Pohnpei Supreme Court appellate division is governed by Pohnpei Civil Procedure Rule 6, and under that rule, when a period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and holidays are excluded in the computation. Silbanuz v. Leon, 21 FSM R. 336, 341 (App. 2017).

Appellate Review Standard Civil Cases Abuse of Discretion; Constitutional Law Due Process
When the Pohnpei Supreme Court appellate division granted the appellant’s requests for 124 days of enlargement to file her brief and when, a month after the brief had actually been filed, that court effectively denied her timely request for the four days of enlargement by concluding that she "chose to remain silent in the end" and then dismissed her appeal, under these circumstances, this denial of the appellant’s timely request to file her brief three or four days late was so arbitrary and capricious as to be an abuse of discretion that violated the appellant’s right to due process under the FSM Constitution, and which would require reversal. Silbanuz v. Leon, 21 FSM R. 336, 341 (App. 2017).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

Roshina R. Silbanuz appeals from the Pohnpei Supreme Court appellate division’s denial of her motion to reconsider that court’s dismissal of her appeal from the Pohnpei Supreme Court trial division’s dismissal of her complaint. For the following reasons, we hereby order her appeal reinstated in the Pohnpei Supreme Court appellate division for a decision on its merits.

I. BACKGROUND

Roshina R. Silbanuz was a long-term permanent employee of the Pohnpei Department Treasury and Administration. In 2008, she was allowed to occupy a state government housing unit across the street from the Pohnpei gym. In November 2009, she was told to leave. She did not. On January 21, 2011, Silbanuz was served a Notice of Proposed Termination from her public employment for her failure to vacate the government house. She contested the termination.

On February 21, 2011, her counsel received a management official’s letter representing the decision to terminate her. Silbanuz appealed that decision to the Pohnpei Personnel Review Board. The Board, after hearing, upheld her termination for insubordination refusing to comply with her direct superior’s order that she vacate the government housing unit but ordered her reinstated, without retroactive pay, if she vacated the housing unit by June 1, 2011. She did not.

Instead, on July 15, 2011, she filed suit in the Pohnpei Supreme Court trial division against the state and various state officials. She sought judicial review of an administrative action (her termination) and also pled due process, equal protection, civil rights, infliction of emotional distress, and declaratory relief claims. The defendants answered and counterclaimed for trespass and ejectment and moved to dismiss Silbanuz’s complaint.

On January 6, 2012, the trial court dismissed her case. It ruled that there was "nothing in the complaint that created any reason for th[e] Court to overturn the decision for being unlawful." Silbanuz v. Leon, Order Granting Motion to Dismiss at 3 (Pon. S. Ct. Tr. PCA No. 160-11 Jan. 6, 2012). It held that "no set of facts could be proven based on the allegations in the complaint that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. It further held that no set of facts could be proven to support Silbanuz’s due process claim; that her equal protection claim failed because she was not a member of a suspect class; and that the civil rights claim failed because it was based on the failed due process and equal protection claims. Id. at 3-4. Additionally, it dismissed the emotional distress claim because no physical harm was alleged and the declaratory judgment claim because it was not the court’s place to rule on every controversy over a statute’s meaning when it did not create a case for the court. Id. at 4.

On February 6, 2012, Silbanuz appealed to the Pohnpei Supreme Court appellate division. The trial court record was evidently certified sometime in February, 2012. The Pohnpei Supreme Court appellate division held a hearing on August 2, 2012, at which Silbanuz’s counsel learned, apparently for the first time, that the record had been certified.

Silbanuz’s counsel then orally moved for an enlargement of time to file her brief. The appellees orally moved to dismiss the appeal. That motion was denied, and the appellate division granted Silbanuz’s motion and gave her until September 3, 2012, to file her opening brief. Instead of filing her brief on that date, Silbanuz moved to enlarge until November 5, 2012, the time for her to file an opening brief. On that date, Silbanuz’s counsel filed another motion to enlarge time this time to December 5, 2012. Both of these requested enlargements were granted. Thus, a brief filed on December 5, 2012, would have been timely.

On December 5, 2012, Silbanuz filed another motion to enlarge time to file her opening brief, this time asking for only four more days. The Pohnpei appellate division did not act on this motion. On December 7, 2012, the appellees filed a motion opposing enlargement and asking for dismissal. Silbanuz filed her opening brief on December 10, 2012. The Pohnpei appellate division set oral argument for December 17, 2012. Counsel for Silbanuz did not appear then because, according to her counsel, a call from the Pohnpei court ended with the statement that the December 17, 2012 hearing had been canceled and the court would make a decision on the motions.

On January 9, 2013, the Pohnpei Supreme Court appellate division granted the appellees’ motion to dismiss Silbanuz’s appeal. It ruled that:

it becomes the true sense and belief of the appellate panel that the appellant was given several opportunities to pursue her appeal and chose to remain silent in the end. The Appellate Court believes that further deliberation of this appellate case is no longer necessary and, therefore, granted the appellees’ opposition to the appellant’s last motion for enlargement of time which include their motion to dismiss the appeal.

Silbanuz v. Leon, Dismissal Order at 2 (Pon. S. Ct. App. No. 01-12 Jan. 9, 2013).

On January 9, 2013, Silbanuz filed a Petition for Rehearing (Motion to Reconsider Dismissal) Rule 19. She asked that her appeal be reinstated because she could not have filed her brief in the four days she had requested, since December 9, 2012 was a Sunday, and so her December 10, 2012 brief was filed within the additional time she had sought. The Pohnpei appellate division denied that petition-motion on February 4, 2013. It held:

Despite all of these allegations, the Panel opined that ample time, through several motions for enlargement, which were granted against the wishes of the appellees; the fact that motions for enlargement and not briefs were filed; the fact that the Appellate Rules or the standard for rehearing is not available to the parties; and that the Panel did not overlook or misapprehend a point of law or fact leaves the panel with no choice but to deny the motion for rehearing.

Silbanuz v. Leon, Order Denying Reh’g & Reconsideration at 2-3 (Pon. S. Ct. App. No. 01-12 Feb. 4, 2013).

On February 22, 2013, Silbanuz appealed to the FSM Supreme Court appellate division.

II. JURISDICTION AND THE APPELLEES’ MOTION TO DISMISS

On August 8, 2017, the appellees filed a motion to dismiss this appeal on the ground that we lack jurisdiction. Silbanuz, at the regularly-scheduled August 10, 2017 oral argument, waived her right to file a written opposition and stated that she would oppose the motion orally. We then heard argument on the motion and took the motion under submission. We hereby deny that motion.

The appellees contend that we lack jurisdiction because, under the FSM Constitution, unless the state’s constitution permits otherwise (and Pohnpei’s Constitution does not), we may only "review . .&. cases heard in state orte or local courts if they require interpretation of th[e FSM] Constitution, national law, or a treaty.M Const. art. XI, § 7.y aseert that, since the the Pohnpei Supreme Court aprt appellate division dismissed Silbanuz’s appeal based on its interpretation of its own appellate procedure rules, no interpretation of the FSM Constitution, national law, or a treaty is required and that therefore we lack jurisdiction.

In Damarlane v. Pohnpei Legislature, 8 FSM R. 23 (App. 1997), we held that we had jurisdiction to consider a claim that the inclusion of a Pohnpei state justice on a Pohnpei Supreme Court appellate panel and his failure to recuse himself for bias against the appellant’s counsel raised an FSM Constitution due process issue over which we could exercise jurisdiction since that issue had been raised below. Id. at 27-28 (relying on Etscheit v. Santos, 5 FSM R. 35 (App. 1991)). We also noted that, since the plaintiff’s complaint in that case raised claims under the FSM Constitution (that the Pohnpei Supreme Court had not addressed), we would have appellate jurisdiction over at least part of the merits of the underlying case if and when the appeal and its merits came properly before us. Damarlane, 8 FSM R. at 26-27.

Similarly, in this appeal, Silbanuz raised the issue that her due process rights were violated by the manner of the Pohnpei appellate division’s dismissal of her appeal. We also note that we would, if it ever came properly before us, have appellate jurisdiction over at least part of the merits of the underlying case. This is because Silbanuz, in her trial court complaint, raised her due process and equal protection claims under both the FSM and Pohnpei Constitutions and pled her civil rights claim under the national civil rights statute, 11 F.S.M.C. 701(3).

Accordingly, we have jurisdiction to consider the one FSM Constitution due process issue Silbanuz raises in this appeal. We deny the appellees’ motion to dismiss.

III. ISSUE PRESENTED

The narrow question before us is whether the Pohnpei Supreme Court appellate division abused its discretion in denying reconsideration of its dismissal of Roshina R. Silbanuz’s appeal and thereby deprived her of her right, under the FSM Constitution, to due process of law.

IV. STANDARD OF REVIEW

Generally, an appellate court has broad discretion to grant an enlargement of time upon a showing of good cause, but enlargement is not automatic. See Christopher Corp. v. FSM Dev. Bank, 20 FSM R. 384, 387 (App. 2016). A court abuses its discretion when its decision is clearly unreasonable, arbitrary, or fanciful; or it is based on an erroneous conclusion of law; or the record contains no evidence on which the court could rationally have based its decision. Jano v. King, 5 FSM R. 326, 330 (App. 1992).

V. ANALYSIS

Silbanuz did not object to oral argument by the appellees although the appellees had not filed a response brief even though the appellees were given an extended opportunity to so. We then granted the appellees permission to argue, FSM App. R. 31(c) ("An appellee who fails to file a brief will not be heard at oral argument except by permission of the court."), and heard argument on the merits from all parties. We now turn to those merits.

Silbanuz contends that she filed her brief within the extra time she requested because, on December 5, 2012, she asked for a further four days and, since the fourth day fell on a Sunday, her Monday, December 10, 2012 filing was within the time requested. The appellees contend that the December 10, 2012 brief was filed late because the Pohnpei Supreme Court appellate division never ruled on the motion to enlarge time, and therefore, since no enlargement had been granted, that court properly dismissed her appeal, and thus properly denied reconsideration of its dismissal.

We note two things here. First, the Pohnpei appellate division’s failure to rule on the motion to enlarge time by four days cannot support the appellees’ position. This is because the failure to exercise discretion (for instance, to grant or deny a motion) is itself an abuse of discretion. Damarlane v. Damarlane, 19 FSM R. 97, 105 (App. 2013) (citing In re Certification of Belgrove, 8 FSM R. 74, 78 (App. 1997)).

Second, the computation of time in the Pohnpei Supreme Court appellate division is governed by Rule 6 of the Pohnpei Civil Procedure Rules, Pon. App. R. 5(a), and under that rule, "[w]hen a period of time prescribed or allowed is less than 7 days intermediate Saturdays, Sundays and holidays shall be excluded in the computation," Pon. Civ. R. 6(a). Thus, if Silbanuz’s December 5, 2012 motion to enlarge time by four days had been granted and the requested (four days) time allowed, not only would the December 10, 2012 filing have been timely, but a December 11, 2012 filing would have been timely as well as it would have been within the four days allowed.

The heart of the question before us is whether the Pohnpei Supreme Court appellate division should have reconsidered and vacated its dismissal of Silbanuz’s appeal and granted her the four days she requested to file her opening brief. The Pohnpei appellate division’s dismissal was based on Silbanuz’s failure to timely file her opening brief and on that court’s inference that Silbanuz had abandoned her appeal, even though her brief had been filed (on December 10, 2012) a month before the Pohnpei Supreme court appellate division dismissed her appeal (on January 9, 2013).

Even if we do not count the five to six months between certification of the February 2012 trial court record and the August 2, 2012 hearing when the Pohnpei Supreme court appellate division set a September date for Silbanuz to file her opening brief, the Pohnpei Supreme Court appellate division granted Silbanuz’s requests for 124 days of enlargement (August 2 to December 5, 2012) to file her brief. But, once the brief had actually been filed for about a month, that court effectively denied her timely request for the four days of enlargement by concluding that she "chose to remain silent in the end" and then dismissed her appeal. In light of these circumstances, we consider this refusal to Silbanuz’s timely request to file her brief three or four days late to be so arbitrary and capricious as to be an abuse of discretion that violated Silbanuz’s right to due process under the FSM Constitution.

VI. CONCLUSION

We therefore conclude that the Pohnpei Supreme Court appellate division’s dismissal of Silbanuz’s appeal and its denial of reconsideration of that dismissal must be reversed, that the Pohnpei Supreme court appellate division shall restore her appeal to its docket, and that that court shall consider Silbanuz’s December 10, 2012 brief to be timely filed. Accordingly, this matter is remanded to the Pohnpei Supreme Court appellate division for it to decide Roshina R. Silbanuz’s appeal on its merits.

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