Phillip v Pohnpei [2018] FMSC 3; 21 FSM R. 439 (Pon. 2018) (26 February 2018)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2013-020

RONALD PHILLIP, )
)
Plaintiff, )
)
vs. )
)
POHNPEI STATE GOVERNMENT, )
)
Defendant. )
___________________________________ )

ORDER GRANTING JUDGMENT

Larry Wentworth
Associate Justice

Hearing: August 8, 2017
Submitted: September 22, 2017
Decided: February 26, 2018

APPEARANCES:

For the Plaintiff: Salomon M. Saimon, Esq.
Directing Attorney
Micronesia Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant: Monaliza Abello-Pangelinan, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Rights; Jurisdiction Arising Under
The FSM Supreme Court has held it may exercise jurisdiction over appeals from state administrative agencies when those appeals have included due process violation and civil rights claims arising under the FSM Constitution. Phillip v. Pohnpei, 21 FSM R. 439, 442 (Pon. 2018).

Civil Procedure Dismissal Before Responsive Pleading; Civil Procedure Summary Judgment
If, on a motion to dismiss, matters outside the pleading are presented to and not excluded by the court, the motion will then be treated as one for summary judgment. Phillip v. Pohnpei, 21 FSM R. 439, 442 (Pon. 2018).

Public Officers and Employees Pohnpei
Section 2-114(1), by its terms, only applies to persons who have completed their sentence and are applying for a Pohnpei public service position. It does not apply to persons already holding public service positions. Phillip v. Pohnpei, 21 FSM R. 439, 442 (Pon. 2018).

Public Officers and Employees Pohnpei Termination
The removal or termination of a public service system employee is a disciplinary action, and the applicable Pohnpei state statute provides that a management official may, for disciplinary reasons, dismiss an employee for such causes that will promote the public service’s efficiency. Phillip v. Pohnpei, 21 FSM R. 439, 443 (Pon. 2018).

Administrative Law Exhaustion of Remedies; Public Officers and Employees Pohnpei
Personnel disciplinary actions are in no case subject to review in the courts until the statutory administrative remedies have been exhausted. Phillip v. Pohnpei, 21 FSM R. 439, 443 (Pon. 2018).

Public Officers and Employees Pohnpei
A court’s review of a Pohnpei Personnel Review Board decision is governed by statute. Phillip v. Pohnpei, 21 FSM R. 439, 443 (Pon. 2018).

Administrative Law Judicial Review
A court, deciding all relevant legal questions, will set aside and hold unlawful a Pohnpei administrative agency decision if the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or contrary to constitutional right, power, privilege or immunity; or in excess of statutory jurisdiction, authority or limitations, or short of statutory right; or without observance of procedure required by law. Phillip v. Pohnpei, 21 FSM R. 439, 443 (Pon. 2018).

Public Officers and Employees Pohnpei Termination
When the court cannot say that the Personnel Review Board’s decision was arbitrary, capricious, or an abuse of discretion since Pohnpei had a rational basis for its decision that the plaintiff, because of his cheating conviction, was an inappropriate role model or mentor for the children he had been employed to instruct, the plaintiff’s termination was thus in compliance with Section 2-139 since his disciplinary dismissal was for such cause that would promote the public service’s efficiency. Phillip v. Pohnpei, 21 FSM R. 439, 443 (Pon. 2018).

Constitutional Law Due Process Notice and Hearing; Public Officers and Employees Pohnpei Termination
Due process requires that a non-probationary government employee be given some opportunity to respond to the charges against him before his dismissal may be implemented; including 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. Phillip v. Pohnpei, 21 FSM R. 439, 444 (Pon. 2018).

Civil Procedure Dismissal Before Responsive Pleading
When there are no facts alleged in the complaint that, if proven, would constitute a procedural due process violation, the defendant is thus entitled to dismissal of the due process claims for failure to state a claim. Phillip v. Pohnpei, 21 FSM R. 439, 444 (Pon. 2018).

Constitutional Law Due Process Substantive Due Process
Substantive due process protects individual liberty interests against certain governmental actions regardless of the fairness of the procedure used to implement them. Phillip v. Pohnpei, 21 FSM R. 439, 444 (Pon. 2018).

Constitutional Law Due Process Substantive Due Process
While procedural due process requires governmental decision-making to conform with the concept of what is fair and just, substantive due process, on the other hand, addresses the rationality of the legislature. With substantive due process, the court basically looks at the rationale or legitimacy of the governmental interest. Phillip v. Pohnpei, 21 FSM R. 439, 444 (Pon. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

The court, on August 8, 2017, heard the defendants’ Motion to Dismiss, or in the Alternative, for a More Definite Statement, filed June 21, 2013; the plaintiff’s Opposition to Motion to Dismiss; Opposition to in the Alternative Motion for More Definite Statements, filed June 28, 2013; and the defendant’s Reply in Support of Motion to Dismiss, or in the Alternative, for a More Definite Statement, filed July 1, 2013. The motion to dismiss is granted. The reasons follow.

I. BACKGROUND

Plaintiff Ronald Phillip was employed by the defendant Pohnpei state government as a classroom teacher, and was thus a member of the Pohnpei Public Service System. On October 9, 2012, Phillip was convicted in the Pohnpei Supreme Court (PKD Nos. 58-12 and 74-12) of the felony of cheating. Based on that conviction, Pohnpei, on January 30, 2013, proposed to terminate Phillip’s employment. Phillip’s counsel replied. Then, by a February 21, 2013 letter, Phillip was informed that his termination was final.

On February 25, 2013, Phillip filed a notice of appeal with the Pohnpei Personnel Review Board. The Board heard his appeal on March 20, 2013. After the hearing, Phillip’s counsel filed closing arguments. Pohnpei did not. On April 3, 2013, the Pohnpei Personnel Review Board issued its decision affirming Phillip’s termination.

On June 4, 2013, Phillip filed a complaint in the FSM Supreme Court, as an appeal of the Pohnpei Personnel Review Board decision and further alleging claims arising from Pohnpei’s violations of the Public Service System Act and regulations, from its due process violations, and from its civil rights violations. Phillip seeks reinstatement to his teaching position, back pay, and statutory damages for the civil rights violations.

II. PENDING MOTION TO DISMISS

Pohnpei moves for dismissal. It contends that the court lacks subject-matter jurisdiction to hear an appeal from a Pohnpei administrative agency; that Phillip cannot show that the Board lacked a rational basis to terminate him; and that Phillip did not plead, or allege, any facts that would, if proven, constitute violations of the Public Service System Act or its regulations, or a denial of due process, or an abridgement of Phillip’s civil rights. Pohnpei also moves that, if the court does not dismiss Phillip’s civil rights, due process, and Public Service System violations claims, it should order that Phillip provide a more definite statement of those claims because, as Phillip’s pleading stands, it is so vague that Pohnpei cannot reasonably be expected to frame a responsive pleading. Pohnpei further contends that Phillip’s complaint fails to state a claim for which the court can grant relief because Phillip fails to show that the Personnel Review Board did not have a rational basis for its decision.

Phillip opposes the motion and supports his opposition with copies of the January 30, 2013 proposed adverse action, his counsel’s February 6, 2013 response, the February 21, 2013 termination letter, his February 25, 2013 appeal to the Personnel Review Board, and the Personnel Review Board’s April 3, 2013 decision. Phillip asserts that his felony conviction for cheating cannot be used to terminate his classroom teacher position because the applicable statute was amended after the Pohnpei Supreme Court decided Paulus v. Pohnpei, 3 FSM R. 208 (Pon. S. Ct. Tr. 1987) (statute providing that any person who has been convicted of a felony and is currently under sentence must be terminated from public employment, is an unconstitutional deprivation of procedural due process by allowing for the affected individual’s termination without a hearing, and is thus struck down).

That statute now reads: "Conviction of a felony after completion of sentence as specified in Subsection (1) of this section hereof shall not be a bar to employment in the public service unless the Director determines that the nature of the felony renders the candidate clearly unsuitable for the position applied for." 9 Pon. C. § 2-114(1)illip contends that that since he held his teaching position in good standing and since his cheating conviction was unrelated tojob, Pohnpei cannot use the statute to terminate him because he is not "applying for" the tthe teaching position. He already holds (or held) it.

III. ANALYSIS

A. Subject-Matter Jurisdiction

The FSM Supreme Court has held it may exercise jurisdiction over appeals from state administrative agencies when those appeals have included due process violation and civil rights claims arising under the FSM Constitution. See Smith v. Nimea, 17 FSM R. 333, 337 (Pon. 2011); Carlos Etscheit Soap Co. v. Do It Best Hardware, 14 FSM R. 152, 156-57 (Pon. 2006); cf. Sandy v. Mori, 17 FSM R. 92 (Chk. 2010); Kimeuo v. Simina, 15 FSM R. 664 (Chk. 2008), aff’d, 16 FSM R. 616 (App. 2009); Robert v. Simina, 14 FSM R. 438 (Chk. 2006); Reg v. Falan, 14 FSM R. 426 (Yap 2006); Hauk v. Terravecchia, 8 FSM R. 394 (Chk. 1998). Phillip has pled due process and civil rights claims arising under the FSM Constitution. Accordingly, the court rejects Pohnpei’s lack of jurisdiction argument.

B. Motion to Dismiss or for Summary Judgment?

If, on a motion to dismiss, matters outside the pleading are presented to and not excluded by the court, the motion shall then be treated as one for summary judgment. Gilmete v. Peckalibe, 20 FSM R. 444, 447 (Pon. 2016). In his opposition, Phillip has presented matters outside the pleadings the January 30, 2013 proposed adverse action, his counsel’s February 6, 2013 response, the February 21, 2013 termination letter, his February 25, 2013 appeal to the Personnel Review Board, and the Personnel Review Board’s April 3, 2013 decision. The court sees no reason to exclude these matters and neither party has suggested that it do so. The court will therefore treat the pending motion to dismiss as a summary judgment motion.

C. Causes of Action

1. Review of Personnel Board Decision

The court must reject Phillip’s contention that Section 2-114(1) is the applicable statute. By its terms, that statute only applies to persons who have completed their sentence and are applying for a Pohnpei public service position. Phillip, at the time he was terminated, had not completed his sentence (three years’ house arrest) and was not applying for a public service position. He was terminated from the public service position he held. If Phillip were correct about Section 2-114(1)’s application, then no one holding a public service position could ever be terminated for a felony conviction. That would be an absurd result.

The removal or termination of a public service system employee is a disciplinary action. See Simina v. Kimeuo, 16 FSM R. 616, 622 (App. 2009). The applicable Pohnpei state statute, in pertinent part, provides that: "A management official may, for disciplinary reasons, dismiss . . .mployr such cach causes thes that will promote the efficiency of the public service. . . ." 9 P. &#1160 2-139.-139. Since Phillip was being dismissed terminated from the pubervicition he held, thd, this isis is the applicable statute.

Pohnpei contends that Phillip’s dismissal was necessary because the e of the felony cheating ing involves dishonesty or fraud, making Phillip an unsuitable role model or mentor for the students he was instructing in his classroom. Pohnpei thus asserts that it had a rational basis for its termination decision.

Phillip, relying on the text of (the inapplicable) Section 2-114(1), argues that there must be a determination "that the nature of the felony renders the candidate clearly unsuitable for the position applied for." He further argues that since his cheating crime was not directly related to his teaching duties, his conviction cannot make him clearly unsuitable for the classroom teacher position.

"Disciplinary actions . . . shn no be sube subject toct to review in the courts until the administrative remedies prescribed herein have been exhausted." 9 Pon. C. § 2-140(6). Phillip&#821dminadministrative rem wereusted when the Pehe Personnrsonnel Review Board made its final decision. A court’s review of the Personnel Review Board’ssion is governed by statute. While the court will all rele relevant legal questions, it will set aside and hold unlawful a Pohnpei administrative agency decision if it is "(a) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (b) Contrary to constitutional right, power, privilege or immunity; (c) In excess of statutory jurisdiction, authority or limitations, or short of statutory right; (d) Without observance of procedure required by law; . . . ." 8 Pon. C. §&#1604(-104(2).^[1]

The court cannot say that the Personnel Review Boa217;ssion rbitrary, capricious, or an abuse of discretion since Pohnpei had a rata rationalional basi basis for its decision that Phillip, because of his cheating conviction, was an inappropriate role model or mentor for the children he had been employed to instruct. Phillip’s termination was thus in compliance with Section 2-139 since his disciplinary dismissal was for such cause that would promote the public service’s efficiency. As such, it was neither contrary to any constitutional right nor in excess of statutory jurisdiction. And, as discussed below, was not without observance of procedure required by law.

2. Other Causes of Action

Phillip’s other causes of action allege civil rights claims that arise from Pohnpei’s violations of the Public Service System Act and regulations, by its due process violations, and by its civil rights violations.

Phillip’s claim that Pohnpei violated the Public Service System Act and regulations is based on his conclusion that his termination was legal error. Since, as stated above, it was not, Pohnpei is entitled to summary judgment on these claims. Furthermore, to the extent that Phillip’s civil rights claim is based on Pohnpei’s purported legal error in terminating him for his cheating conviction, Pohnpei is entitled to summary judgment on that claim as well.

Due process requires that a non-probationary government employee be given some opportunity to respond to the charges against him before his dismissal may be implemented; including 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. Semes v. FSM, 4 FSM R. 66, 76 (App. 1989). From Phillip’s recitation of the events leading up to his filing this case, it is evident that he received all these opportunities and took advantage of them. There are no facts alleged in Phillip’s complaint that, if proven, would constitute a procedural due process violation. Pohnpei is thus also entitled to dismissal of Phillip’s due process claims for failure to state a claim. And, to the extent that Phillip’s civil rights claim is based on alleged due process violations, Pohnpei is also entitled to a dismissal of his civil rights claims for failure to state a claim.

At the hearing, Phillip conceded that he did receive procedural due process, but contended that he was denied substantive due process. At best, this is a tenuous argument or a misunderstanding of what substantive due process entails. Phillip is correct that "[s]ubstantive due process protects individual liberty interests against certain governmental actions regardless of the fairness of the procedure used to implement them." FSM Dev. Bank v. Adams, 14 FSM R. 234, 248 n.6 (App. 2006).

While procedural due process requires governmental decision-making to conform with the concept of what is fair and just, substantive due process, on the other hand, addresses the rationality of the legislature. With substantive due process, the court basically looks at the rationale or legitimacy of the governmental interest. In subjecting a statute [or court rule] to the requirement of substantive due process, the court asks: (1) Does the government have power to regulate the subject matter? If the statute [or rule] is not within the power of the government, such statute [or rule] will be struck down. . . . (f thernment ment has thes the power to regulate, the court next asks if what the statute [or rule] proposes to do bears a rational relationship to the implement of tgislative goal. . . . (3) ly, wher where thre thre the statute [or rule] involved arguably infringes upon individuals’ fundamental rights, the court must ask how important is the legislative objective. . . . The mustif t if there isre is a compelling governmental interest to justify holding the statute [or rule] valid, even though the statute might limit fundamental ri

Id. (alteration and ellipses in originaiginal) (ql) (quoting Samuel v. Pryor, 5 FSM R. 91, 100-01 (Pon. 1991) (quoting SCREP No. 23, II J. of Micro. Con. Con. 793, 796)). As should be apparent from the previous discussion, Section 2-139, Title 9, does not infringe upon Phillip’s right to substantive due process, and there was a rational basis for the Personnel Review Board to affirm Phillip’s termination. There is thus no substantive due process violation.

IV. CONCLUSION

Accordingly, Pohnpei is granted summary judgment on Ronald Phillip’s claim he was wrongfully terminated and on all causes of action arising from that termination. Furthermore, his due process violation claims fail to allege any facts which would state a claim upon which the court could grant relief. The clerk shall enter judgment accordingly.

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^[1] Subsections (e) and (f) concern whether there was substantial evidence in the case or unwarranted by facts determined in a trial de novo. The facts in this case are undisputed Phillip’s felony conviction for cheating. Phillip disputes the (possible) legal effect of that fact.