3 MILR 13

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.CT. CIVIL NO. 01-13
(High Ct. Civil No. 1995-100)

ALEE ALIK,
Plaintiff-Appellant,

-v-

PUBLIC SERVICE COMMISSION,
Defendant-Appellee.

MAY 23, 2006

INGRAM, C.J. pro tem 
GOODWIN, A.J. pro tem, and KURREN, A.J. pro tem

Argued and Submitted May 17, 2006.

SUMMARY:

Appellant sought to vacate two single-judge Supreme Court orders: one that denied his third request for an extension of time to file an opening brief, and one that dismissed his appeal for failing to file an opening brief. The Supreme Court determined that a single judge has the authority to deny a request for relief and to dismiss an appeal for failure to comply with the rules of appellate procedures. It found that the single judge had not abused his discretion in denying the request for an extension of time and in dismissing the appeal, because he had given appellant ample time to file an opening brief. The Supreme Court denied appellant’s application to vacate the two single-judge orders, and affirmed the dismissal of the appeal. 

DIGEST: 

1. JUDGES – Powers and Functions – Single Supreme Court Judge: A single judge of the Supreme Court has the authority both to deny a request for relief and to dismiss an appeal for failure to comply with the rules of appellate procedure. 

2. APPEAL AND ERROR – Review – Discretionary Matters – Motions in General: The proper standard of review for a single Supreme Court judge’s order is "abuse of discretion." 

3. APPEAL AND ERROR – Dismissal, Grounds for – Failure to Timely File Opening Brief: Under Section 206(4) of the Judiciary Act and SCRP Rules 30 and 42(b), the failure to file an opening brief within the required time is grounds for dismissal. 

4. JUDGES – Powers and Functions – Single Supreme Court Judge: Under Section 206(4) of the Judiciary Act and SCRP Rule 32, a single judge of the Supreme Court acting alone has the authority to dismiss an appeal for the failure to file an opening brief within the required time. 

ORDER OF THE COURT BY INGRAM, C.J. pro tem

On April 14, 2005, plaintiff-appellant Alee Alik ("Alik") applied under Rule 27(c) of the Supreme Court Rules of Procedure ("SCRP") to vacate two single-judge Supreme Court orders: (1) then Chief Justice Allen Fields’s May 21, 2002 order denying Alik’s third request to extend time to file an opening brief and (2) Justice Fields’s July 25, 2003 order dismissing Alik’s appeal for failing to file an opening brief. In support of his application, Alik claimed that if the relief is granted, he will be able to get a lawyer for his case; that there is good cause for the extension; and that Justice Fields "just ignored it." 

I. FACTUAL AND PROCEDURAL HISTORY

In January 1993, defendant-appellee Public Service Commission ("PSC") advertised for applicants to fill the vacant position of Clerk of the Council of Irioj. Alik applied, but the PSC hired the only other applicant. In 1995, Alik sued the PSC for back wages arguing that of the two applicants, only he met the PSC’s announced employment qualifications. After a trial on the matter, the High Court on September 19, 2001, rejected Alik’s claim and issued a judgment for the PSC. 

Alik filed a timely appeal. Upon certification of the record, Alik’s opening brief was due 40 days later, on January 14, 2002. However, on December 10, 2001, Alik, citing and complying with SCRP Rule 29, requested a 60-day extension. In a supporting affidavit, Alik stated that he needed to raise money and get a lawyer. On February 4, 2002, Justice Fields issued an order granting the first extension. 

On March 27, 2002, eight days after the first extension had expired, Alik requested a second 60-day extension, an extension until May 20, 2002. On March 15, 2002, Justice Fields issued an order granting a second extension. The opening brief was now due May 20, 2002. 

On May 20, 2002, Alik requested a third 60-day extension. On May 21, 2002, Justice Fields issued an order denying the requested extension. However, Justice Fields did not immediately dismiss the appeal. 

Almost 14 months later, on July 17, 2003, the clerk of the court issued a notice to Alik stating that unless Alik filed his opening brief on or before noon on July 25, 2003, his appeal would be dismissed. On July 24, 2003, Alik sent a letter to the clerk requesting a two-week extension to find legal counsel. On July 25, 2003, Justice Fields dismissed the appeal for failure to file an opening brief. 

Almost 20 months later, on March 15, 2005, Alik filed the application that is now before this Court. 

II. APPLICABLE LAW

Under SCRP Rule 28(b), an appellant must file an opening brief within 40 days of the filing of the record on appeal. Under SCRP Rule 29, "[a] party may extend time for the filing of a brief only if the party has first obtained an order signed by a justice allowing extension." Under SCRP Rules 30 and 42(b), the Supreme Court may dismiss an appeal when the appellant does not file an opening brief within the time required.

[1] A single judge of the Supreme Court has the authority both to deny a request for relief and to dismiss an appeal for failure to comply with the rules of appellate procedure. Section 206(4) of the Judiciary Act 1983, 27 MIRC Chp. 2, in relevant part provides that "a single judge may make all necessary orders concerning any appeal prior to the hearing and determination thereof, and may dismiss an appeal for failure to take any steps in accordance with the law or rules of procedure applicable in that behalf, or the request of the appellant." SCRP Rule 32 provides: "A justice of the Supreme Court may make all necessary orders concerning any appeal prior to the hearing and determination thereof and may dismiss an appeal for failure to take any steps in accordance with the law or applicable rules of procedure." Also, SCRP Rule 27(c) in part provides: "In addition to the authority expressly conferred by these rules or by law, a single justice of the Supreme Court may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion before the Supreme Court. . . . Any party adversely affected by an action of a single justice may, by application to the Court, request rehearing, vacation or modification of such action." 

III. STANDARD OF REVIEW

[2] As suggested by both counsel during oral argument, the proper standard of review for a single Supreme Court judge’s order is "abuse of discretion." As a general rule, the Supreme Court has held that the standard of review for the High Court’s denial of a motion is "abuse of discretion." With respect to the High Court’s denial of a continuance (i.e., an extension of time), the Supreme Court has also adopted the "abuse of discretion" standard. Further, with respect to the High Court’s dismissal of a case for the failure to prosecute, the Supreme Court has adopted the "abuse of discretion" standard. 

IV. APPLICATION

[3,4] Under Section 206(4) of the Judiciary Act and SCRP Rules 30 and 42(b), Alik’s failure to file an opening brief within the required time is grounds for dismissal. Under Section 206(4) and SCRP Rule 32, Justice Fields had the authority to dismiss the appeal. 

Prior to dismissing the appeal, Justice Fields granted Alik two 60-day extensions. Although Justice Fields denied Alik’s request for a third extension, he did not dismiss Alik’s appeal until almost 14 months had passed and then upon 8-days’ notice. The day before Justice Fields dismissed the appeal, Alik requested a two-week extension. However, Alik did not explain what efforts he had taken to retain counsel over the preceeding 18-month period, why he thought he could secure counsel and file a brief within two weeks, or why he did not himself file a simple brief to preserve his appeal. The motions and other papers Alik has prepared and filed in the courts evidence the knowledge, skill, and experience to file a simple brief. For example, Alik’s notice of appeal and requests for extensions of time correctly cite and comply with the Supreme Court rules of procedure. In short, Alik did not demonstrate that there was good cause to grant him any further extensions. 

Further, Alik has not shown that Justice Fields abused his discretion by denying a third extension and dismissing the appeal. Justice Fields gave Alik ample time to secure counsel or file a brief himself. At some point in time, the opposing party’s right to a timely resolution of the case and a final judgment are impaired, and the integrity of the judicial process is undermined. Justice Fields afforded Alik ample opportunity to file an opening brief. If you sleep on your rights, you can lose them. 

V. CONCLUSION

Alik’s application to vacate the Court’s May 21, 2002 order denying his request to extend time to file an opening brief and the Court’s July 25, 2003 order dismissing Alik’s appeal for failing to file an opening brief are DENIED. The Court’s dismissal of the appeal is AFFIRMED.