Macayon v FSM [2020] FMSC 12; 22 FSM R. 544 (Chk. 2020) (25 May 2020)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2019-1001

LUISITO H. MACAYON,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA through its Division of Immigration and Labor,Department of Justice of the Federated States of Micronesia,
Defendant.
_____________________________________________

ORDER GRANTING SUMMARY JUDGMENT

Larry Wentworth
Associate Justice

Hearing: March 10, 2020
Submitted: March 27, 2020
Decided: May 25, 2020

APPEARANCES:

For the Plaintiff: Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant: Bulou Alitiana S. Esther Kuridrani, Esq. (briefs and argued)
Abigail J. Avoryie, Esq. (briefs only)
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Pleadings - Affirmative Defenses
A statement in an answer that the defendant reserves the right to amend its affirmative defenses upon further investigation, is a nullity. Macayon v. FSM, 22 FSM R. 544, 550 n.4 (Chk. 2020).

Immigration
Congress has the sole authority to regulate immigration, and it exercised this power by enacting Title 50, chapter 1 of the FSM Code. Macayon v. FSM, 22 FSM R. 544, 551 (Chk. 2020).

Immigration
The Immigration Act authorizes the President to issue immigration regulations that are consistent with the immigration statute. Macayon v. FSM, 22 FSM R. 544, 551 (Chk. 2020).

Immigration
The court only becomes involved with an immigration matter when it has to determine if a challenged executive action or omission is consistent with immigration law, procedure, and the Constitution. Macayon v. FSM, 22 FSM R. 544, 551 (Chk. 2020).

Immigration
A person aggrieved by a decision of the Division of Immigration and Labor is entitled, first to an informal hearing before the officer in charge of the local immigration office, and then, if still aggrieved by that officer’s decision, to appeal to a hearing before a committee consisting of the Chief of Immigration, or, in the event of a conflict of interest on the Chief’s part, his designee, the Secretary of the Department of Justice or his designee, and a representative of the Department of Foreign Affairs. Macayon v. FSM, 22 FSM R. 544, 551 (Chk. 2020).

Administrative Law - Judicial Review; Immigration
An immigration appeal committee’s decision constitutes the final agency action for the purposes of title 17 of the FSM Code, and under Title 17, a person adversely affected or aggrieved by agency action is entitled to judicial review thereof in the FSM Supreme Court, except to the extent that statutes explicitly limit judicial review, but no statute explicitly limits judicial review of a 50 F.S.M.C. 116(2) final action. Macayon v. FSM, 22 FSM R. 544, 551 (Chk. 2020).

Administrative Law - Judicial Review; Immigration
Once a final immigration agency action is properly before the court, the court can conduct a de novo trial of the matter and receive in evidence any or all of the record from the administrative hearing that is stipulated to by the parties, and to the extent necessary for the decision and when presented, the court can decide all relevant questions of law and fact, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Macayon v. FSM, 22 FSM R. 544, 551 (Chk. 2020).

Civil Procedure - Summary Judgment - Grounds
Under Rule 56, unless a court, viewing the facts and inferences in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the court must deny a motion for summary judgment. Macayon v. FSM, 22 FSM R. 544, 551-52 (Chk. 2020).

Foreign Investment Laws; Immigration
The FSM is not required to permit a person’s entry into or continued presence in the FSM just because a state government has granted that person a foreign investment permit. Only the national government (Congress) may regulate immigration even though the state governments retain some authority to regulate the business or employment of non-FSM citizens within their state, but, when deciding whether to permit or deny someone’s entry or continued presence in the FSM, the FSM must take into consideration that that person has a state-issued foreign investment permit. Macayon v. FSM, 22 FSM R. 544, 552 (Chk. 2020).

Immigration
An immigration appeal committee’s decision cannot merely list the mitigating factors that were put before it, but must give some explanation of how those factors affected, or did not affect, its decision or how its reason outweighed or overcame all of the mitigating factors. Macayon v. FSM, 22 FSM R. 544, 552-53 (Chk. 2020).

Administrative Law
An administrative agency action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. Macayon v. FSM, 22 FSM R. 544, 553 (Chk. 2020).

Immigration; Statutes - Construction
The statute that authorizes the President to delegate his authority to issue entry permits and to permit entry into the FSM of persons, vessels, and aircraft under the provisions of this chapter and regulations promulgated thereto also authorizes the President to delegate his authority to deny issuance of an entry permit and his authority to deny entry of persons, vessels, and aircraft into the FSM because if an official has the delegated authority to issue an entry permit, then that official must also have the authority not to issue the entry permit - that is, to deny an entry permit application or renewal. Macayon v. FSM, 22 FSM R. 544, 553 (Chk. 2020).

Administrative Law - Rules and Regulations; Immigration
Although the immigration regulations do not delegate the power to enforce the Immigration Act any further than the Secretary of Justice and the Chief of the Division of Immigration and Labor, the Chief obviously must act through subordinates who staff the ports of entry and the immigration offices in each of the four states. Macayon v. FSM, 22 FSM R. 544, 553 (Chk. 2020).

Administrative Law - Rules and Regulations
Regulations, even if properly promulgated, must neither exceed nor limit the statute’s reach. Macayon v. FSM, 22 FSM R. 544, 553 (Chk. 2020).

Immigration
A person who is not an FSM national may be denied an entry permit based on a finding by the President that the entry of the applicant or his presence in the FSM would not be in the FSM government’s best interest, and the statute does not authorize the President to delegate his statutory authority to make that finding. What constitutes the national government’s best interest is a policy decision best made by a high-level official such as the President, not a lower level official. Macayon v. FSM, 22 FSM R. 544, 553-54 (Chk. 2020).

Immigration
Congress can authorize the President to delegate the finding of the national government’s best interest to some other (presumably high-ranking) official, but any such authorization and delegation must be more explicit than the current statutory authorization and regulatory delegation. Macayon v. FSM, 22 FSM R. 544, 554 n.8 (Chk. 2020).

Immigration
When the President did not make a finding that a person’s continued presence in Chuuk was not in the national government’s best interest, the FSM Immigration Officer in Charge in Chuuk did not have the delegated authority to make such a finding, and therefore his denial of an entry permit renewal, and the appeal committee’s affirmance of that denial, on that ground was unlawful because, under 50 F.S.M.C. 107(1)(k), a Presidential finding is necessary for the FSM to deny an entry permit on the ground it is in the national government’s best interest. Macayon v. FSM, 22 FSM R. 544, 554 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses; Civil Procedure - Summary Judgment - Procedure
Because the burden of a plaintiff moving for summary judgment extends to affirmative defenses as well as to the plaintiff’s own positive allegations, the plaintiff must not only show that there is no issue of material fact, but must also show that the affirmative defenses are insufficient as a matter of law. Macayon v. FSM, 22 FSM R. 544, 554 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses; Civil Procedure - Summary Judgment - Procedure
Generally, a party that has pled an affirmative defense but does not raise that defense in response to a summary judgment motion has waived or abandoned that defense. Macayon v. FSM, 22 FSM R. 544, 555 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses; Civil Procedure - Pleadings - With Particularity
In all averments of fraud the circumstances constituting fraud must be stated with particularity. This requirement to plead fraud with particularity includes not only a plaintiff pleading a fraud claim in its complaint, but also a defendant pleading fraud as an affirmative defense in its answer. Macayon v. FSM, 22 FSM R. 544, 555 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses; Civil Procedure - Pleadings - With Particularity
Unlike most other affirmative defenses, fraud is an affirmative defense that must be pled with particularity. Defendants must satisfy Rule 9(b) when they plead affirmative defenses sounding in fraud. Macayon v. FSM, 22 FSM R. 544, 555 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses; Civil Procedure - Pleadings - With Particularity
When an FSM court has not previously construed whether Rule 9(b) applies to affirmative defenses, an FSM civil procedure rule that is identical or similar to a U.S. counterpart, it may look to U.S. sources for guidance in interpreting or applying the FSM rule. Macayon v. FSM, 22 FSM R. 544, 555 n.9 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses; Civil Procedure - Pleadings - With Particularity
Pleading fraud without more as an affirmative defense does not meet the particularity requirements of Rule 9(b). A defendant who alleges no facts to support its conclusory statement of "fraud" as an affirmative defense, wholly fails to satisfy the heightened pleading standard set forth by Rule 9(b), and it will be stricken accordingly. Macayon v. FSM, 22 FSM R. 544, 555 (Chk. 2020).

Civil Procedure - Pleadings - Affirmative Defenses
Affirmative defenses cannot be pled with only a conclusory statement; facts must also be pled. Macayon v. FSM, 22 FSM R. 544, 555 n.10 (Chk. 2020).

Administrative Law - Administrative Procedure Act; Immigration
Since the court can compel agency action unlawfully withheld or unreasonably delayed, the court, in such situations, can order that a person’s entry permit be renewed as of the date when his last entry permit expired. Macayon v. FSM, 22 FSM R. 544, 555 (Chk. 2020).

Civil Rights - Acts Violating
A government official’s decision or a governmental agency’s decision, that an aggrieved party considers to be "wrong" or "incorrect," on the law or the facts does not, by itself, thereby automatically become a civil rights claim or violation (or entitle that party to skip or avoid administrative proceedings). Macayon v. FSM, 22 FSM R. 544, 556 (Chk. 2020).

Civil Rights - Remedies and Damages
In a civil rights action, the court may award costs and reasonable attorney’s fees to the prevailing party. Macayon v. FSM, 22 FSM R. 544, 556 (Chk. 2020).

* * * *

COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On March 10, 2020, the court telephonically heard the plaintiff’s Motion for Summary Judgment, filed December 13, 2019; the FSM’s Response to Plaintiff’s Motion for Summary Judgment, filed January 24, 2020; and Reply Supporting Motion for Summary Judgment, filed February 10, 2020. During the hearing, the court asked the FSM to brief the regulations it relies on for its position and supply the court with copies of those regulations and gave the plaintiff an opportunity to respond. The FSM filed its brief on March 24, 2020, and Luisito H. Macayon filed his brief on March 27, 2020. The court then considered the matter submitted for decision. The court’s reasons for granting Macayon’s motion follow.

I. FACTS

A. Background

On July 14, 1989, Luisito H. Macayon, a citizen of the Philippines, arrived in Chuuk to work at the Truk Continental Hotel, which later became the Blue Lagoon Resort. In April 1991, he married Marcita Wanis, a Chuukese citizen. They had three children, two daughters and a son, two of which are FSM citizens. They were divorced in June 2006. In July 2007, Macayon married Gardenia Aisek, also a Chuukese citizen.

On October 21, 2005, Macayon obtained a Chuuk foreign investment permit that allowed him to operate a business or businesses in Chuuk. He invested significant sums in these Chuuk businesses.

Macayon’s marriage to Gardenia Aisek ended with hard feelings.^[1] On January 3, 2016, Macayon and Aisek, who had been arguing verbally, got into a physical tussle over the possession of an iPad that belonged to one of Macayon’s daughters but that Aisek had mistakenly believed was hers. No one was hurt. But Macayon was charged in the Chuuk State Supreme Court with assault with a dangerous weapon (apparently the iPad), assault, and affray. Macayon had never before been accused of any wrongdoing during his time in Chuuk.

The case went to trial. The assault with a dangerous weapon charge was dismissed on a Rule 29 motion for acquittal. At the end of trial, Macayon was acquitted on the affray charge but convicted of assault. Assault is a misdemeanor. Chk. S.L. No. 6-66, § 408. gust 25, 2016, Macayoacayon was sentenced to six months, suspended, and a $100 fine. This was later reduced to two months, suspended. Macayon successfully completed his sentence according to its terms.

B. Procedural History

1. Administrative Proceedings

On March 22, 2018, the Acting Officer in Charge of the FSM Immigration and Labor’s Chuuk Office, Phil A. Bisalen, sent Macayon a letter informing him that his FSM entry permit would be denied renewal because, under 50 F.S.M.C. 107(1)(j), an entry permit should be denied when the person is found guilty of a felony. The letter also stated, "You can appeal said decision if you know something we don’t." On August 17, 2018, the Chief of Immigration and Labor, Ricky Falcam, sent Macayon a letter informing him that his entry permit was "being canceled," and advising Macayon that he had fifteen days after receipt of the letter to depart the FSM.

On August 24, 2018, Macayon sent Chief Falcam his notice that he was appealing Falcam’s decision because, under 50 F.S.M.C. 107(1)(j), the renewal of his entry permit could be denied and he could be deported only if he had been convicted of a felony or a crime of moral turpitude, and what he was convicted of was neither a felony nor a crime of moral turpitude. Macayon requested a local hearing within the time authorized by the FSM Immigration Regulations, part 12.3.

The hearing was held on August 30, 2018. On September 3, 2018, Chuuk Officer in Charge Bisalen sent Macayon a letter, informing him that "the basis for cancellation of your permit was not because your crime was a felony or one that involves moral turpitude but rather the fact that you were convicted of committing a crime in our country which made your presence no longer in our best interest." Bisalen cited 50 F.S.M.C. 107(1)(k) as the statutory basis for this.

On September 16, 2018, Macayon appealed that decision by asking Chief Falcam for a committee hearing. That request included nineteen letters of support from various Chuukese dignitaries, other Chuukese community members, and Macayon’s Chuukese friends and relatives. The committee^[2] hearing was held on October 18, 2018. Macayon appeared with local counsel and a large number of potential witnesses. Macayon and his counsel both addressed the committee. Macayon referred the committee members to the numerous letters of support that were attached to his hearing request. Counsel from both sides stated their positions. The hearing then adjourned.

On November 1, 2018, the committee issued its final action, signed by two of the three committee members.^[3] It set out the matter’s procedural chronology and restated counsel’s arguments on Macayon’s behalf. It then affirmed the earlier decision and "agree[d] with the original decision that Appellant’s presence in the FSM is no longer in the best interest of the FSM . . . ." Final Agency Action at 2 (Nov. 1, 2018). The reasons it gave were that the evidence and arguments adduced during the hearing . . . illustrated tha ofllhe Imhe Immion anor Din’s previous denials of Mr. LuisiLuisito Mato Macayoncayon’s Entry Permit were in the best interest of the FSM. For thison, tmmittee affirms the previous decision of the immi immigratigration hearing officers, notwithstanding the new information provided by the Appellant.

Id.

2. Litigation

On January 10, 2019, Macayon filed his Complaint and Appeal of Final Decision against the Division of Immigration and Labor, Department of Justice of the Federated States of Micronesia. On January 22, 2019, Macayon filed his First Amended Complaint and Appeal of Final Decision, this time naming the Federated States of Micronesia through its Division of Immigration and Labor, Department of Justice of the Federated States of Micronesia as the sole defendant. The pleadings were otherwise the same. Macayon stated two causes of action - (1) an appeal of a final administrative decision and (2) violation of civil rights and due process.

Macayon alleged that he was denied due process when immigration officials kept changing the reason for his exclusion; that the administrative findings were arbitrary, capricious, and not in accordance with law, contrary to constitutional right, statutory jurisdiction, or substantial compliance with the law, and were unwarranted by the facts; that no consideration was given to his long-standing investment, business interests, and family and social ties in Chuuk; and that no findings were made about how his misdemeanor conviction made his presence in Chuuk not in the FSM’s best interest and that no showing was made that the President had made any such finding. He further alleged that the FSM’s failure to consider any mitigating information about his 26 years in the FSM violated his due process rights and claimed that the FSM’s actions constituted an unjustified taking of his property - his investments in Chuuk. As relief, he asks that the administrative agency decision be overturned, that his entry permit be renewed, and that he be awarded damages and the cost of suit and reasonable attorneys’ fees.

The FSM filed its answer on March 13, 2019. It listed eight affirmative defenses: Macayon’s failure to join an indispensable party, assumption of risk, contributory negligence, failure of consideration, injury by fellow servant, fraud, license, and waiver.^[4] Discovery ensued. The FSM, responding to Macayon’s interrogatories, stated that all of the affirmative defenses except fraud, had been included in its answer "due to clerical error." Def.’s Resp. to Interrogs. at 5-6 (Oct. 8, 2019). The court thus considers those defenses to be withdrawn. Also during discovery, the FSM acknowledged that there were no letters or writings from President Peter Christian before the October 18, 2018 hearing that determined or advised that Macayon’s continued presence in the FSM was not in the FSM’s best interest. Def.’s Resp. to Pl.’s Requests for Admis. at 2 (Oct. 8, 2019).

Macayon then moved for summary judgment to overturn the administrative finding that refused to renew his foreign investor entry permit.

II. COURT’S AUTHORITY OVER IMMIGRATION MATTERS

The FSM maintains that immigration cases should be considered a class of their own and that "the decision to admit or expel a person from a sovereign nation should be regarded as an executive branch decision." Response to Pl.’s Mot. for Summ. J. at 8 (Jan. 24, 2020).

Congress has the sole authority to regulate immigration. FSM Const. aX, § 2(c). Cong Congress esed tsed this power by enacting Title 50, chapter 1 of the FSM Code. That chapter sets outrequirements for entry permits, 50 F.S.M.C. 102, the types of entry permits, 50 F.S.M.C. 10C. 103, and the standards to be used by the executive branch to "deny entry without a permit, deny renewal of entry without a permit, deny an entry permit, revoke or deny renewal of an entry permit, or deport any noncitizen," 50 F.S.M.C. 107(1).

In that chapter, Congress set out the law to be applied and the extent of the executive branch’s discretion in implementing the law. It authorized the President to issue immigration regulations that are consistent with the immigration statute. 50 F.S.M.C. 111. The court only becomes involved with an immigration matter when it has to determine if a challenged executive action or omission is consistent with immigration law, procedure, and the Constitution.

Under 50 F.S.M.C. 116, a person aggrieved by a decision of the Division of Immigration and Labor is entitled, first to an informal hearing before the officer in charge of the local immigration office, and then, if still aggrieved by that officer’s decision, to appeal to a hearing before "a committee consisting of the Chief of Immigration, or, in the event of a conflict of interest on the part of the Chief, his designee, the Secretary of the Department of Justice or his designee, and a representative of the Department of Foreign Affairs." 50 F.S.M.C. 116(2). Macayon’s August 30, 2018 hearing before Officer in Charge Bisalen was the first, informal hearing, and his October 18, 2018 hearing before the appeal committee was the second, formal hearing.

The appeal committee’s November 1, 2018 decision constituted the "final agency action for the purposes of title 17 of th[e FSM] code." 50 F.S.M.C. 116(2). Under Title 17, "[a] person adversely affected or aggrieved by agency action is entitled to judicial review thereof in the Supreme Court of the Federated States of Micronesia," 17 F.S.M.C. 111(2), "except to the extent that statutes enacted by the Congress of the Federated States of Micronesia explicitly limit judicial review," 17 F.S.M.C. 111(1). No statute explicitly limits judicial review of a 50 F.S.M.C. 116(2) final agency action. The court therefore holds the full range of 17 F.S.M.C. 111 jurisdiction and authority to review an immigration appeal committee’s final decision.

Macayon, since he is still aggrieved, now seeks judicial review of the November 1, 2019 final immigration agency action. The matter is thus properly before the court. Once a final agency action or decision is before it, the court can "conduct a de novo trial of the matter and may receive in evidence any or all of the record from the administrative hearing that is stipulated to by the parties," 17 F.S.M.C. 111(2), and to the extent necessary for the decision and when presented, the court must "decide all relevant questions of law and fact, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action," 17 F.S.M.C. 111(3).

Macayon does not now seek a trial de novo. He moves for summary judgment because, in his view, the material facts are not in dispute and he is entitled to a judgment as a matter of law. Under Rule 56, unless a court, viewing the facts and inferences in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the court must deny a motion for summary judgment. Mailo v. Chuuk Health Care Plan, 20 FSM R. 18, 22 (App. 2015); Rosario v. College of Micronesia-FSM, 11 FSM R. 355, 358 (App. 2003); Luzama v. Ponape Enterprises Co., 7 FSM R. 40, 48 (App. 1995).

III. PARTIES’ POSITIONS

A. Macayon’s Position

Macayon contends that the administrative decision must be overturned because what he was convicted of was neither a felony nor a crime of moral turpitude; because President Christian made no finding that his presence in the FSM was not in the FSM government’s best interest; and because there were no reasons given or guidelines articulated for the agency’s decision. Macayon also asserts that the FSM’s action against him was arbitrary and capricious because of its ever-changing reasons for the action and because the lack of a presidential finding violates his constitutional due process rights. Macayon further argues that deporting him would deprive him of his property (his Chuuk investments and businesses) without due process or just compensation.

B. The FSM’s Position

The FSM contends that the cancellation of Macayon’s entry permit was within its powers because the President has the authority to regulate immigration and has delegated those powers to the various immigration officials who properly exercised them under duly promulgated regulations. The FSM also contends that Macayon’s due process rights were not violated because he received all of the due process procedural rights he was entitled to under both the statutes and the regulations. The FSM also argues that, because Macayon does not own any land in Chuuk, he has no property rights to be deprived of except the operation of his business. The FSM further contends that its positions have not been inconsistent and therefore were not arbitrary or capricious.

IV. ANALYSIS

A. Consideration of Mitigating Factors

Macayon contends that neither the local immigration official nor the immigration appeal committee took his proffered mitigating evidence into consideration - his state-issued foreign investment permit, his financial investment in Chuuk, his long-standing community ties in Chuuk, the needs and desires of his Chuukese relatives and acquaintances, and his contributions to the Chuukese community.

The FSM argues that it is not required to permit the entry or continued presence of a person in the FSM just because a state government has granted that person a foreign investment permit. This is correct. Only the national government (Congress) may regulate immigration in the FSM, FSM Const. art. #167; 2(c), even even though theestate governments retain some authority to regulate the business or employment of non-FSM citizens within their state, cf. Smith v. Nimea, 1 R. 337 (Pon. 2011). 1). But, when deciding whether to permit rmit or deny someone’s entry or continued presence in the FSM, the FSM must take into consideration that that person has a state-issued foreign investment permit.

The appeal committee’s decision merely lists the mitigating factors Macayon put before it, but gives no reasons or explanation for how these factors affected, or did not affect, its decision to uphold the local immigration official’s denial of an entry permit for Macayon because it was in the FSM’s best interest or how Macayon’s misdemeanor outweighed or overcame all of Macayon’s mitigating evidence.
Some explanation must be given. The court suspects that if the appeal committee had tried to explain how Macayon’s one misdemeanor conviction in twenty-six years in Chuuk outweighed Macayon’s long-standing community ties in Chuuk, the needs and desires of his Chuukese relatives, his contributions to the Chuukese community, and his financial investment in Chuuk, the committee would have been hard-pressed to come up with an adequate rationale.^[5] It thus has neither a sound basis in reason nor in regard to the facts. An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. Carlos Etscheit Soap Co. v. McVey, 22 FSM R. 137, 144 (Pon. 2019).

B. Presidential Findings

The statute clearly provides that "[t]he President may delegate his authority to issue entry permits and to permit entry into the Federated States of Micronesia of persons, vessels, and aircraft under the provisions of this chapter and regulations promulgated thereto." 50 F.S.M.C. 106. Reading the statute broadly, the President may also delegate his authority to deny issuance of an entry permit and his authority to deny entry of persons, vessels, and aircraft into the FSM. If an official has the delegated authority to issue an entry permit, then that official must also have the authority not to issue the entry permit - that is, to deny an entry permit application or renewal.

"The President may, from time to time, issue regulations not inconsistent with law to implement this chapter." 50 F.S.M.C. 111. By regulations adopted September 22, 2005, the President delegated "the power to enforce the [Immigration] Act" to the Secretary of the Department of Justice and to that department’s Chief of the Division of Immigration and Labor. FSM Immigration Regs. pt. 1.2 (Sept. 22, 2005). The regulations do not delegate the power to enforce the Immigration Act any further than the Secretary and the Chief, but obviously, the Chief must act through subordinates who staff the ports of entry and the immigration offices in each of the four states.

But regulations, even if properly promulgated, must neither exceed nor limit the statute’s reach. Eliam v. FSM Social Sec. Admin., 21 FSM R. 412, 416 (App. 2018); Esiel v. FSM Dep’t of Fin., 19 FSM R. 590, 593 (App. 2014) (regulation cannot impermissibly extend or limit the reach of the statute that authorizes it); Braiel v. National Election Dir., 9 FSM R. 133, 138 (App. 1999); People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 623, 626 (Yap 2013); Harden v. Continental Air Lines, Inc., 18 FSM R. 141, 146 n.2 (Pon. 2012); Klavasru v. Kosrae, 7 FSM R. 86, 91 (Kos. 1995) (regulation cannot impermissibly extend the reach of the statute that authorizes it).

The statute provides that a person who is not an FSM national may be denied an entry permit based on "a finding by the President that the entry of the applicant or his presence in the Federated States of Micronesia would not be in the best interest of the Government of the Federated States of Micronesia." 50 F.S.M.C. 107(1)(k). Nowhere in the statute does it authorize the President to delegate his statutory authority to find that someone’s presence in the FSM is not or would not be in the national government’s best interest.

The statute authorizing the President to delegate his authority to issue entry permits, 50 F.S.M.C. 106, cannot be read so broadly as to also authorize him to delegate to a local immigration official the power to make a Presidential finding that someone’s entry into or presence in the FSM is not in the national government’s best interest. The court concludes that the President’s power to find that an applicant’s presence in the FSM "would not be in the best interest of the Government of the Federated States of Micronesia" is not a power that 50 F.S.M.C. 106 authorizes the President to delegate, and to read the Immigration Regulations so broadly as to delegate that authority to immigration officials is to impermissibly extend the Regulations’ reach beyond what the statute permits.

This makes sense because only the President, and not a local immigration official, would have the perspective to, or be in the best position to, make an overall finding of what would be in the national government’s best interest.^[6] This is because a finding of the national government’s "best interest" could implicate the nation’s overall economic policies, or have foreign relations, national security, or defense implications or considerations other than those concerns specifically addressed in the statute.^[7] What constitutes the national government’s best interest is a policy decision best made by a high-level official such as the President, not a lower level official.^[8]

The President made no finding that Macayon’s continued presence in Chuuk was not in the national government’s best interest. The court holds that the FSM Immigration Officer in Charge in Chuuk did not have the delegated authority to make such a finding, and that therefore his denial of Macayon’s entry permit, and the appeal committee’s affirmance of that denial, on that ground was unlawful. Since, under 50 F.S.M.C. 107(1)(k), a Presidential finding was necessary for the FSM to deny Macayon’s entry permit, and there was no such finding, Macayon did not receive all the procedural process due him. The local immigration officer and the appeal committee exceeded their statutory and regulatory authority by denying Macayon a renewed entry permit on the ground that his continued presence was not in the government’s best interest.

C. Fraud Affirmative Defense

Because "the burden of a plaintiff moving for summary judgment extends to affirmative defenses as well as to the plaintiff’s own positive allegations, the plaintiff must not only show that there is no issue of material fact, but must also show that the affirmative defenses are insufficient as a matter of law." Onanu Municipality v. Elimo, 20 FSM R. 535, 544 (Chk. 2016) (citations omitted). As noted above, the FSM, during discovery, withdrew all of the affirmative defenses it had pled other than fraud. Macayon, in his summary judgment motion, notes this as well, but then does not otherwise address the FSM’s fraud affirmative defense.

The FSM also never mentioned the fraud affirmative defense in its opposition to summary judgment. Generally, "[a] party that has pled an affirmative defense but does not raise that defense in response to a summary judgment motion has waived or abandoned that defense." FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).

But, even if the FSM had argued the fraud affirmative defense, it would not matter. It was not properly before the court. The FSM did not plead it with particularity. In its answer, the FSM merely listed "fraud" as an affirmative defense and did not elaborate further. The FSM did not allege any facts or state any particular circumstances in support of its fraud averment. "In all averments of fraud . . . the circumstaconstitutinguting fraud . . . she staith path particulaicularity." FSM Civ. R. 9(b). This requirement to plead fraud with particularity includes not only a plaintiff pleading a fraaim i comp, but also also a defendant pleading fraud as an affiraffirmativmative defense in its answer.

Unlike most other affirmative defenses, "[f]raud is an affirmative defense that must be pleaded with particularity." Bose Corp. v. Ejaz, 732 F.3d 17, 22 (1st Cir. 2013).^[9] "[D]efendants must satisfy Rule 9(b) when they plead affirmative defenses sounding in fraud." Bakery & Confectionary Union & Indus. Int’l Pension Fund v. Just Born II, Inc., 888 F.3d 696, 704 (4th Cir. 2018); see also 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1274, at 616-18 d. 2004). 4). "Pleading fraud without more as an affirmative defense does not meet the particularity requirements of Rule 9(b)." Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F. Supp. 832, 841 (S.D.N.Y. 1988). A defendant who "alleges no facts to support its conclusory statement of ’fraud’ as an affirmative defense . .;. wholly fails to satisfytisfy the heightened pleading standard set forth by Rule 9(b), and it will be stricken accordingly." uilar v. City Lights of China Restaurant, Inc., 2011 WL 5118325 at *4 (D. Md. 2011).1[0]

Thus, whether the FSM’s fraud affirmative defense is considered abandoned because the FSM did not mention it in its opposition or is a nullity and considered stricken because it was merely a conclusory statement in the FSM’s answer, the court must disregard it. It is thus not an obstacle to a summary judgment in Macayon’s favor.

D. Remedies

Macayon asks that his entry permit be renewed. The court can "compel agency action unlawfully withheld or unreasonably delayed." 17 F.S.M.C. 111(3)(a). Based on all the foregoing reasons, the court orders that Macayon’s entry permit be renewed as of the date when his last entry permit expired.

Macayon also asks for summary judgment on his civil rights claim and thereby also seeks an award for his attorney fees and costs. The court is of the opinion that a government official’s decision or a governmental agency’s decision, that an aggrieved party considers to be "wrong" or "incorrect," on the law or the facts does not, by itself, thereby automatically become a civil rights claim or violation (or entitle that party to skip or avoid administrative proceedings). Amsden v. Moran, [1990] USCA1 244; 904 F.2d 748, 757 (1st Cir. 1990) ("a regulatory board does not transgress constitutional due process merely by making decisions ‘for erroneous reasons’ or by making ‘demands which arguably exceed its authority under relevant state statutes’" (quoting Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir. 1982))); American Nat’l Bank & Trust v. City of Chicago, [1987] USCA7 618; 826 F.2d 1547, 1550 (7th Cir. 1987) ("due process requires only that a person have a meaningful opportunity to present his claims; it does not guarantee success").

But as described above, Macayon failed to receive all of the procedural process due him even though he was afforded all the hearing opportunities provided for by statute, 50 F.S.M.C. 116(2), and by regulation. The court will not consider Macayon’s claim that the FSM’s action constitutes a "taking" of his property. Any consideration of this claim would be an impermissible advisory opinion - no "taking," as alleged by Macayon, has occurred because he has not yet been forced to leave the FSM or to cease operation of his Chuuk businesses.

In a civil rights action, the court "may award costs and reasonable attorney’s fees to the prevailing party." 11 F.S.M.C. 701(3). Macayon is the prevailing party. He is therefore entitled to reasonable attorney’s fees and court costs. Macayon may file and serve his detailed request for attorney’s fees and cost by June 9, 2020. The FSM may file and serve a response by June 19, 2020.

V. CONCLUSION

Accordingly, Macayon’s summary judgment motion is granted and the FSM is hereby ordered to renew Macayon’s entry permit as of the date when the previous one expired. Macayon is also entitled to his reasonable attorney’s fees and costs.

* * * *

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^[1] The Chuuk State Supreme Court entered the actual decree of divorce on May 15, 2019.

^[2] The committee consisted of three persons: one representing the Chief of Immigration, one who was the Secretary of the Department of Justice’s designee, and one representing the Department of Foreign Affairs. This accords with 50 F.S.M.C. 116(2)’s requirements for the appeal committee’s composition.

^[3] The text above the decision’s signature lines states that the "decision was unanimously adopted by the Committee on October 26, 2018," but only two signatures, both dated November 1, 2018, appear.

^[4] The FSM’s answer also contained a statement that the FSM "reserves the right to amend its affirmative defenses upon further investigation." Answer & Affirmative Defenses at [unnumbered] 4 (Mar. 13, 2019). That "reservation" is a nullity. Estate of Gallen v. Governor, 21 FSM R. 477, 484 (Pon. 2018) (court must disregard a defendant’s "reservation" of the right to assert additional affirmative defenses, and require the defendant to adhere to Rule 15(a) if it wants to add another affirmative defense); Chuuk Health Care Plan v. Department of Educ., 18 FSM R. 491, 495-96 (Chk. 2013) (answering party cannot avoid Rule 15 by reserving the right to amend its pleadings whenever it pleases; if it needs to assert an unpled affirmative defense, it may amend its answer as a matter of right within the next 20 days; otherwise, it must seek and obtain either the leave of court or the adverse party’s written consent to add another affirmative defense).

^[5] It seems the immigration officials were, for whatever reason, unwilling to concede that they may have initially made a mistake and so instead went looking for any alternative that might conceivably be applied and all they could find was the vague assertion that because of Macayon’s misdemeanor conviction, his presence in the FSM "was no longer in our best interest" or "no longer in the best interest of the FSM." (The statute actually reads: "would not be in the best interest of the Government . . . ." 50 F.S.M.C. 10k)1)(

.

^[6] The court is aware that much or most of the preparatory work for a Presidential finding is often done by the President&#821ides sista Neverteverthelesheless, ins, in the end, it is the President who must make the finding by agreeing with it and signing it.

^[7] Those addressed in the statute are: advocacy of the unlawful overthrow of the FSM government, 50 F.S.M.C. 107(1)(b); commission of, or attempt, or preparation to commit, or abetting or aiding another to commit act of treason or armed insurrection against the FSM government, 50 F.S.M.C. 107(1)(c); performance of or attempting to perform duties or otherwise acting so as to serve another government’s interests to the detriment of the FSM government, 50 F.S.M.C. 107(1)(d); and deliberate unauthorized disclosure of confidential government information, 50 F.S.M.C. 107(1)(e).

^[8] This is not to say that Congress cannot authorize the President to delegate the finding of the national government’s best interest to some other (presumably high-ranking) official. It certainly can. The court only says that any such authorization and delegation must be more explicit than the current statutory authorization and regulatory delegation.

^[9] When an FSM court has not previously construed an aspect of an FSM civil procedure rule that is identical or similar to a U.S. counterpart, it may look to U.S. sources for guidance in interpreting or applying the FSM rule. See, e.g., Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 413 n.3 (App. 2000). No FSM court has previously ruled on whether Rule 9(b) applies to affirmative defenses.

^1[0] This, of course, does not mean that other affirmative defenses may be pled with only a conclusory statement; facts must still be pled. See Estate of Gallen v. Governor, 21 FSM R. 477, 482 n.2 (Pon. 2018) (an affirmative defense is the defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true); Senda v. Semes, 8 FSM R. 484, 493-94 (Pon. 1998) (affirmative defenses that are, in each instance, tied to specific factual allegations do not present a blanket pleading of frivolous affirmative defenses without regard to the case’s facts).