ADMINISTRATIVE LAW

A court should not decide a constitutional issue when there remains a possibility that an administrative decision will obviate the need for a court decision. Suldan v. FSM (I), 1 FSM Intrm. 201, 205 (Pon. 1982).

An unconstitutional statute may not be redeemed by voluntary administrative action. Suldan v. FSM (II), 1 FSM Intrm. 339, 357 (Pon. 1983).

There is a presumption that a judicial or quasi-judicial official is unbiased. The burden is placed on the party asserting the unconstitutional bias. The presumption of neutrality can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. Where disqualification occurs, it is usually because the adjudicator has a pecuniary interest in the outcome or has been the target of personal abuse or criticism from the party before him. Suldan v. FSM (II), 1 FSM Intrm. 339, 362-63 (Pon. 1983).

The highest management officials cannot be said to be biased as a class and they cannot be disqualified, by virtue of their positions from final decision-making as to a national government employee's termination under section 156 of the National Public Service System Act, without individual consideration. Suldan v. FSM (II), 1 FSM Intrm. 339, 363 (Pon. 1983).

Basic notions of fair play, as well as the Constitution, require that Public Land Authority decisions be made openly and after giving appropriate opportunity for participation by the public and interested parties. Etpison v. Perman, 1 FSM Intrm. 405, 420-21 (Pon. 1984).

Where there is reason to believe that provisions of a public land lease may have been violated by the lessee, and where another person has notified the Public Land Authority of his claim of a right to have the land leased to him, the Public Land Authority may not consider itself bound by the lease's renewal provision but is required to consider whether it has a right to cancel the lease, and, if so, whether the right should be exercised. These are decisions to be made after a rational decision-making process in compliance with procedural due process requirements of article IV, section 3 of the FSM Constitution. Etpison v. Perman, 1 FSM Intrm. 405, 421 (Pon. 1984).

Adjudicatory decisions of governmental bodies affecting property rights are subject to the procedural due process requirements of article IV, section 3 of the Constitution. Etpison v. Perman, 1 FSM Intrm. 405, 422-23 (Pon. 1984).

Analysis of a claim of bias of an administrative decision-maker begins with a presumption that decision-makers are unbiased. The burden is on the challenger to show a conflict of interest or some other specific reason for disqualification. Specific facts, not mere conclusions, are required in order to rebut the presumption. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 99 (Kos. S. Ct. Tr. 1987).

When the charges of prejudice of an administrative decision-maker are too conclusory, vague, and lacking in specificity, then they do not bring into question the presumption of impartiality. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 100 (Kos. S. Ct. Tr. 1987).

There are varying degrees of familial relationships and Micronesian legislative bodies have consistently instructed the courts that not every family relationship requires disqualification. An affidavit, stating that an administrative decision-maker is a relative of a party, but not saying whether he is a near relative and failing to set out the degree of relationship, is insufficient to constitute a claim of statutory violation. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 100 (Kos. S. Ct. Tr. 1987).

When the land commission concludes that a traditional gift of land, a "kewosr," has been made, but is unable to determine who made the gift, and when, and does not explain any details about the customary gift sufficient to explain how it has determined that a kewosr was made, the opinion does not reflect proper resolution of the legal issues or reasonable assessment of the evidence and therefore must be set aside. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 402 (Kos. S. Ct. Tr. 1988).

Kosrae State Land Commission properly relied on the decision of the Trust Territory High Court in Civil Action No. 47 (1953) as establishing that a person's name on the Japanese Survey of Kosrae was not conclusive evidence of ownership in 1932 of the land indicated. Heirs of Likiaksa v. Heirs of Lonno, 3 FSM Intrm. 465, 468 (Kos. S. Ct. Tr. 1988).

Kosrae State Land Commission was not required as a matter of law to accept as true the Japanese Survey's designation of Fred Likiaksa as owner, in 1932, of certain lands called Limes, in Lelu, parcel No. 050-K-00. Heirs of Likiaksa v. Heirs of Lonno, 3 FSM Intrm. 465, 468 (Kos. S. Ct. Tr. 1988).

Kosrae State Land Commission properly relied on the decision of the Trust Territory High Court in Civil Action No. 47 (1953) as establishing that no rights given to plaintiff's family could have extended beyond the death of Nena Kuang in 1970. Heirs of Likiaksa v. Heirs of Lonno, 3 FSM Intrm. 465, 468 (Kos. S. Ct. Tr. 1988).

In a nation constitutionally committed to attempt to provide legal services for its citizens, the mere fact that an attorney had previously sued the state, without any suggestion that actions taken were frivolous, vexatious, or for purposes of harassment, cannot be viewed as reasonable grounds for denying the attorney the opportunity to practice law in that state. Carlos v. FSM, 4 FSM Intrm. 17, 24 (App. 1989).

In general, to the extent that the Financial Management Regulations are consistent with the Financial Management Act, such uniform standards and procedures serve to prevent misappropriation and expenditures in excess of budgetary allowances. Mackenzie v. Tuuth, 5 FSM Intrm. 78, 85 (Pon. 1991).

A Financial Management Regulation that bears no reasonable relationship to the fiscal accounting and management objectives of the Financial Management Act is in excess of the statutory authority granted to the Secretary of Finance. Mackenzie v. Tuuth, 5 FSM Intrm. 78, 86-87 (Pon. 1991).

The Secretary of Finance lacks the authority to terminate administratively the fiscal year prior to its lawful expiration period where such termination precludes the judiciary from making obligations during the entire fiscal year for which an appropriation is made. Mackenzie v. Tuuth, 5 FSM Intrm. 78, 88 (Pon. 1991).

In implementing the provisions of the Financial Management Act the Secretary of Finance must disburse funds within 30 days of the submission of a payment request unless the withholding of payment approval is necessary to prevent the misappropriation or over-obligation of a specific appropriation. Mackenzie v. Tuuth, 5 FSM Intrm. 78, 88 (Pon. 1991).

Regulations prescribed by the registrar of corporations have "the force and effect of law." KCCA v. FSM, 5 FSM Intrm. 375, 377 (App. 1992).

Regulation of the Exclusive Economic Zone rests exclusively with the Micronesian Maritime Authority, 24 F.S.M.C. 301-02. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 69 (Pon. 1993).

Conditions on commercial fishing permits issued by the Micronesian Maritime Authority need not be "reasonable" as with recreational permits. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

The state cannot raise as a defense a plaintiff's failure to comply with its administrative procedures for claims when denial of opportunity for administrative relief is one of the injuries the plaintiff complains of. Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114, 119-20 (Pon. 1993).

Where a state law contains potentially conflicting provisions regarding administrative procedures claimants must follow, the decision of a claimant to follow one provision but not the other so as to preserve her right to bring suit on a claim is reasonable and does not constitute a basis for dismissing the action. Abraham v. Lusangulira, 6 FSM Intrm. 423, 425-26 (Pon. 1994).

It is incumbent on parties to follow administrative procedures concerning their disputes as designated by applicable state law before coming to court unless and until the state law is judged invalid. Abraham v. Lusangulira, 6 FSM Intrm. 423, 426 (Pon. 1994).

A regulation cannot impermissibly extend the reach of the statute that authorizes it. Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

It is an impermissible extension of the reach of the statute for the executive service regulation to define abandonment of public office as absent without authorization for two weeks. Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Lack of structure in a statute can be remedied by agency regulations that support, rather than distort, the statutory language of the legislature. Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Congress may constitutionally authorize by statute administrative agencies to perform many different investigatory functions, among them the auditing of books and records, the issuance of subpoenas requiring the disclosure of information relevant to the agency's functions, and requiring the sworn testimony of witnesses. FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 137, 141-42 (Pon. 1995).

While MMA is authorized to issue, deny, cancel, suspend or impose restrictions on FSM fishing permits for fishing law violations, this is not the government's exclusive remedy because the FSM Attorney General is separately authorized to enforce violations of the foreign fishing agreement, Title 24 or the permit through court proceedings for civil and criminal penalties and forfeitures. FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 79, 92-93 (Pon. 1997).

When a court case containing a count for trespass and injunctive relief raises the issue of who holds title to the land in question, the case will be transferred to the Chuuk Land Commission for adjudication of the parties' claims to ownership pursuant to its administrative procedure. Choisa v. Osia, 8 FSM Intrm. 567, 568 (Chk. S. Ct. Tr. 1998).

Administrative agencies in the form of Registration Teams and the Land Commission are created and an administrative procedure are provided for the purpose of determining the ownership of land and the registration thereof. Choisa v. Osia, 8 FSM Intrm. 567, 568 (Chk. S. Ct. Tr. 1998).

In some circumstances, two remedies may be available to the same party for the enforcement of the same right, one in the judicial and the other in the administrative forum. Mark v. Chuuk, 8 FSM Intrm. 582, 583 (Chk. S. Ct. Tr. 1998).

In administrative law in regard to controversies in which the same parties and the same subject matter are involved, when two or more tribunals have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the proceeding might have been initiated. Mark v. Chuuk, 8 FSM Intrm. 582, 583-84 (Chk. S. Ct. Tr. 1998).

Generally, the validity of a regulation depends on whether the administrative agency had the power to adopt the particular regulation. The regulation must be within the matter covered by the enabling statute. Abraham v. Kosrae, 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999).

A regulation, valid when promulgated, becomes invalid upon the later enactment of another statute which is in conflict with the regulation. However, an administrative regulation will not be considered as having been impliedly invalidated by a subsequent act of the legislature unless the regulation and the later law are irreconcilable, clearly repugnant and inconsistent that they cannot have concurrent operation. Abraham v. Kosrae, 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999).

Administrative regulations that are inconsistent or out of harmony with the statute or that conflict with the statute are invalid or void, and the court not only may, but it is their obligation to strike down such regulations. Abraham v. Kosrae, 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999).

From June 1997 when Kos. S.L. No. 6-131 became law to February 1998 when new PSS regulations were adopted, there was no administrative appeals process for grievances, which void raises substantial due process concerns under the FSM and Kosrae Constitutions. Abraham v. Kosrae, 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999).

Regulations do not come into effect when they have not been filed with the Registrar of Corporations. Regulations cannot extend or limit the reach of the statute that authorizes it. Braiel v. National Election Dir., 9 FSM Intrm. 133, 138 (App. 1999).

Administrative Procedure Act

The FSM Supreme Court finds within the Administrative Procedure Act, 17 F.S.M.C. 101-113, the necessary flexibility to expedite review of an administrative proceeding. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 128 (App. 1987).

Where there is a conflict between a statute of general application to numerous agencies or situations, such as the APA, and a statute specifically aimed at a particular agency or procedure, such as the National Election Code, the more particularized provision will prevail. This rule is based upon recognition that the legislative body, in enacting the law of specific application, is better focused and speaks more directly to the affected agency and procedure. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987).

For elections, the timing provisions of the National Election Code prevail over any conflicting timing set out in the APA. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987).

The fact that some provisions of the APA are overridden by the National Election Code does not constitute either an explicit or implicit statement that the judicial review provisions of the APA are partially or wholly inapplicable to appeals from decisions of the commissioner. The APA is not an all or nothing statute. That the APA's timing provisions do not apply to recount petitions does not mean the APA's judicial review provisions are inapplicable to appeals from denial of such petitions. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 130 (App. 1987).

The APA enacted by the Congress of the Federated States of Micronesia is quite similar to the United States Administrative Procedure Act, but differs in that the FSM's APA imposes more affirmative obligations and requires the court to make its own factual determinations. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 131 (App. 1987).

A decision by the Secretary denying applicant a permit to practice law in Yap is an agency decision within the provisions of the Administrative Procedure Act. Michelsen v.FSM, 5 FSM Intrm. 249, 253 (App. 1991).

When the Secretary denied an application for a foreign investment permit without delivering notice of his action, made no statement of the reasons in support of his denial, and failed to report to the President, the decision was made without substantial compliance with the procedures required by law and was therefore unlawful. Michelsen v. FSM, 5 FSM Intrm. 249, 254-55 (App. 1991).

Since the denial of the application resulted in a decrease in the availability of legal services in Yap and since the Secretary did not properly weigh the extent to which the application would contribute to the constitutional policy of making legal services available to the of the Federated States of Micronesia, the denial of the foreign investment permit to practice law in Yap was unwarranted by the facts in the record and therefore unlawful. Michelsen v. FSM, 5 FSM Intrm. 249, 256 (App. 1991).

Judicial Review

It is inappropriate for the FSM Supreme Court to consider a claim that a government employee's termination was unconstitutional where the administrative steps essential for review by the court of employment terminations have not yet been completed. 52 F.S.M.C. 157. Suldan v. FSM (I), 1 FSM Intrm. 201, 202 (Pon. 1982).

The National Public Service System Act plainly manifests a congressional intention that, where there is a dispute over a dismissal, the FSM Supreme Court should withhold action until the administrative steps have been completed. 52 F.S.M.C. 157. Suldan v. FSM (I), 1 FSM Intrm. 201, 206 (Pon. 1982).

Where a Public Land Authority has erred procedurally, but there is no suggestion of bad faith or substantive violations by the Authority, the FSM Supreme Court may appropriately employ the doctrine of primary jurisdiction to remand the public land issue to the Authority for its decision. Etpison v. Perman, 1 FSM Intrm. 405, 429 (Pon. 1984).

Unless restricted by law, we must presume that this court has jurisdiction to review final administrative or agency actions. There is reviewability except where: 1) statutes preclude judicial review; or 2) administrative/agency action is committed to administrative/agency discretion by law. Amor v. Pohnpei, 3 FSM Intrm. 28, 29 (Pon. S. Ct. Tr. 1987).

When subsection 3(e) section 27 of the State Public Service System Act of 1981 is read in conjunction with subsection 3(f), it becomes clear that the Legislature had not intended to limit the right to judicial review and that the statute does not preclude the court from reviewing any decision of the Personnel Review Board. Amor v. Pohnpei, 3 FSM Intrm. 28, 30 (Pon. S. Ct. Tr. 1987).

There is no provision in the Public Service Act nor in the Public Service System Regulation that establishes a time limit for seeking judicial review of agency action. For this reason, the court adopts the six-year statute of limitations established in 6 TTC 305 and holds that the petition for judicial review was filed in a timely manner. Amor v. Pohnpei, 3 FSM Intrm. 28, 33 (Pon. S. Ct. Tr. 1987).

The FSM Supreme Court finds within the Administrative Procedures Act, 17 F.S.M.C. 101-113, the necessary flexibility to expedite review of an administrative proceeding. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 128 (App. 1987).

The fact that some provisions of the APA are overridden by the National Election Code does not constitute either an explicit or implicit statement that the judicial review provisions of the APA are partially or wholly inapplicable to appeals from decisions of the commissioner. The APA is not an all or nothing statute. That the APA's timing provisions do not apply to recount petitions does not mean the APA's judicial review provisions are inapplicable to appeals from denial of such petitions. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 130 (App. 1987).

The FSM Supreme Court need not dwell upon the apparent conflicts between two lines of cases in the United States concerning the scope of judicial review of administrative actions, but should search for reconciling principles which will serve as a guide to court within the Federated States of Micronesia when reviewing agency decisions of the law. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 132 (App. 1987).

It is appropriate for courts to defer to a decision-maker when Congress has told the courts to defer or when the agency has a better understanding of the relevant law. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 133, 134 (App. 1987).

If an agency decision is a considered judgment arrived at on the basis of hearings, a full record, and careful reflection, courts are more likely to rely on the knowledge and judgment of the agency and to restrict the scope of judicial review. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 134 (App. 1987).

Under Kosrae state statute KC 11.614, which says appeals will be heard "on the record" unless "good cause" exists for a trial of the matter, the court does not have statutory guidance as to the standard to be used in reviewing the Land Commission's decision and therefore, in reviewing the commission's procedure and decision, normally should merely consider whether the commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988).

That a land commission's determination is not sufficiently supported by either reasoning or evidence furnishes "good cause" to permit the reviewing court to conduct its own evidentiary proceeding. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988).

Normally, it is primarily the task of the land commission, not the reviewing court, to assess the credibility of witnesses and to resolve factual disputes, since it is the commission, not the court that is present when witnesses testify and only the commission sees the manner their testimony but commission's major findings, and if no such explanation is made, the reviewing court may conduct its own evidentiary hearings or may remand the case to the commission for further proceedings. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 401 (Kos. S. Ct. Tr. 1988).

Kosrae State Land Commission's determination of ownership of certain lands called Limes, in Lelu, parcel No. 050-K-00, made on July 21, 1985, was sound and fair and will therefore be affirmed by the court. Heirs of Likiaksa v. Heirs of Lonno, 3 FSM Intrm. 465, 468 (Kos. S. Ct. Tr. 1988).

In reviewing the termination of national government employees under the National Public Service System Act, the FSM Supreme Court will review factual findings insofar as necessary to determine whether there is evidence to establish that there were grounds for discipline. Semes v. FSM, 4 FSM Intrm. 66, 71 (App. 1989).

The Administrative Procedure Act judicial review provisions do not apply to statutes enacted by the Congress of the Federated States of Micronesia to the extent that those statutes explicitly limit judicial review. Semes v. FSM, 4 FSM Intrm. 66, 72 (App. 1989).

Under the National Public Service System Act, where the FSM Supreme Court's review is for the sole purpose of preventing statutory, regulatory and constitutional violations, review of factual findings is limited to determining whether substantial evidence in the record supports the conclusion of the administrative official that a violation of the kind justifying termination has occurred. Semes v. FSM, 4 FSM Intrm. 66, 72 (App. 1989).

The Kosrae State Court in reviewing appeals from the Executive Service Appeals Board is empowered to overturn or modify the Board's decision if it finds a violation of law or regulation, but the court is precluded from re-weighing factual determinations made by the Board. Palik v. Executive Serv. Appeals Bd., 4 FSM Intrm. 287, 289 (Kos. S. Ct. Tr. 1990).

A foreign investment permit applicant aggrieved by a final permit decision may appeal the decision to the FSM Supreme Court. Michelsen v. FSM, 5 FSM Intrm. 249, 252-53 (App. 1991).

The standard of review of an agency decision is to determine whether the action was lawful. Michelsen v. FSM, 5 FSM Intrm. 249, 254 (App. 1991).

The Foreign Investment Act does not explicitly limit judicial review therefore an aggrieved person affected by an agency decision may seek review under the Administrative Procedures Act. Michelsen v. FSM, 5 FSM Intrm. 249, 254 (App. 1991).

Strong policy considerations favor terminating disputes and upholding the finality of a decision when the party attempting to appeal has failed to act in timely fashion. Charley v. Cornelius, 5 FSM Intrm. 316, 317-18 (Kos. S. Ct. Tr. 1992).

When a time requirement has been statutorily established courts are generally without jurisdiction to hear an appeal authorized by statute unless the appeal is filed within the time prescribed by statute. Charley v. Cornelius, 5 FSM Intrm. 316, 318 (Kos. S. Ct. Tr. 1992).

Generally, the conduct of elections is left to the political branches of government, unless the court has powers specifically given to it by Congress contrary to that general rule. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993).

By statute an aggrieved candidate in an election contest can only appeal to the FSM Supreme Court after his petition to the National Election Commissioner has been denied. Kony v. Mori, 6 FSM Intrm. 28, 30 (Chk. 1993).

The Administrative Procedures Act provides for judicial review of administrative acts and applies to all agency actions unless explicitly limited by a Congressional statute. It mandates the court to "conduct a de novo trial of the matter," and to "decide all relevant questions of law and fact." Moroni v. Secretary of Resources & Dev., 6 FSM Intrm. 137, 138 (App. 1993).

Judicial review of agency actions must first be sought in the trial division unless there is a specific statute which provides otherwise. Moroni v. Secretary of Resources & Dev., 6 FSM Intrm. 137, 138-39 (App. 1993).

The public policy against extended litigation does not mandate and direct appeal to the appellate division from an agency action since the statutory scheme unambiguously requires pursuit of remedies in the trial division first, and the trial division proceeding may resolve the matter. Moroni v. Secretary of Resources & Dev., 6 FSM Intrm. 137, 139 (App. 1993).

The Chuuk State Supreme Court has constitutional jurisdiction to review the actions of any state administrative agency, and decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action. Robert v. Mori, 6 FSM Intrm. 178, 179 (Chk. S. Ct. Tr. 1993).

When an appeal from an administrative agency decision involves an issue of extreme time sensitivity and of national importance that ultimately would have to be decided by the appellate division the court may allow a direct appeal to the appellate division. Robert v. Mori, 6 FSM Intrm. 394, 397 (App. 1994).

The judiciary must reject administrative constructions which are contrary to clear legislative intent because, although courts should, where appropriate, defer to an agency's authorization, there are limits to that deference. Klavasru v. Kosrae, 7 FSM Intrm. 86, 91 (Kos. 1995).

Deadlines set by statute are generally jurisdictional. If the deadline has not been strictly complied with the adjudicator is without jurisdiction over the matter once the deadline has passed. This applies equally to the National Election Director as a member of an administrative agency (executive branch) hearing an appeal as it does to a court hearing an appeal from an administrative agency. Thus the Director cannot extend statutory time frames set by Congress. When the Director had not rendered his decision within the statutorily-prescribed time limit it must be considered a denial of the petition, and the petitioner could then have filed his appeal in the Supreme Court. Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995).

Because the Chuuk State Supreme Court has jurisdiction to review administrative agency decisions as provided by law, its trial division, under 67 TTC 115, exercises appellate review of Land Commission decisions. Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 377 (Chk. S. Ct. Tr. 1996).

The Chuuk State Supreme Court has limited review of administrative agency decisions and cannot act as a finder of fact unless it grants a trial de novo. A trial de novo is only authorized in reviewing an administrative hearing where the action is adjudicative in nature and the fact finding procedures employed by the agency are inadequate. Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 377-78 (Chk. S. Ct. Tr. 1996).

In reviewing decisions of administrative agencies the Chuuk State Supreme Court shall review the whole record and due account shall be taken of the rule of prejudicial error. Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 378 (Chk. S. Ct. Tr. 1996).

The Chuuk State Supreme Court will not overturn factual findings of the Land Commission that turn on witness credibility because such findings are not clearly erroneous. Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 378 (Chk. S. Ct. Tr. 1996).

Exhaustion of administrative remedies before suing in court is not required when it would be futile for a plaintiff to pursue an administrative remedy. Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 566 n.4 (Pon. 1996).

Although not listed in Civil Rule 8(c) failure to exhaust administrative remedies is an affirmative defense. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 618 (App. 1996).

An appeal from the land commission will be on the record unless the court finds good cause for a trial of the matter. At a trial de novo the parties may offer any competent evidence, including the record of proceedings before the land commission, but the question of whether the commission considered the evidence submitted to it is not normally a part of judicial scrutiny. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997).

On appeal the court should not substitute its judgment for those well-founded findings of the land commission, but questions of law are reserved to the court. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997).

It is axiomatic that determining the legal implication of a different case is a question of law, and on appeal questions of law presented to a state agency are reserved to the court. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 38 (Kos. S. Ct. Tr. 1997).

It is not necessary to exhaust one's administrative remedies before filing suit when to do so would be futile. Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997).

It is not necessary to exhaust one's administrative remedies before filing suit when to do so would be futile. Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997).

If, on remand from an appeal to the trial court, all that is left for the administrative agency to do is ministerial, the order of remand is final. If the agency has the power and duty to exercise residual discretion, to take proof, or to make an independent record, its function remains quasi-judicial, and the remand order is not final. Youngstrom v. Phillip, 8 FSM Intrm. 198, 201 (Kos. S. Ct. Tr. 1997).

The Chuuk State Supreme Court trial division has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law. David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300h (Chk. S. Ct. App. 1998).

In reviewing appeals from the Executive Service Appeals Board, the Kosrae State Court is empowered to overturn or modify the ESAB's decision if it finds a violation of law or regulation, but the court is precluded from re-weighing the ESAB's factual determinations. If there is any factual basis for the ESAB's decision, it will be upheld, assuming no other violation or law or regulation. Langu v. Kosrae, 8 FSM Intrm. 427, 432 (Kos. S. Ct. Tr. 1998).

The Kosrae State Court cannot substitute its judgment for that of the Executive Service Appeals Board, but in reviewing the ESAB's findings it may examine all of the evidence in the record in determining whether the factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the findings as clearly erroneous. Langu v. Kosrae, 8 FSM Intrm. 427, 435 (Kos. S. Ct. Tr. 1998).

Employee grievances were subject to judicial review by the Kosrae State Court, following the completion of certain administrative procedures, specifically review by the Executive Service Appeals Board. The court may reverse or modify ESAB's decision only if finds a violation of law or regulation. Langu v. Kosrae, 8 FSM Intrm. 455, 457, 458 (Kos. S. Ct. Tr. 1998).

The Kosrae State Court does not have jurisdiction to review employee grievances of persons who did not first comply with the statutorily required administrative procedure. Langu v. Kosrae, 8 FSM Intrm. 455, 457 (Kos. S. Ct. Tr. 1998).

The Chuuk Judiciary Act of 1990, Chk. S.L. No. 190-08, states in part that the reviewing court shall declare unlawful and set aside agency action, findings and conclusions found to be unsupported by substantial evidence. Nakamura v. Moen Municipality, 8 FSM Intrm. 552, 554 (Chk. S. Ct. App. 1998).

The standard required for the review of a Land Commission decision by the Chuuk State Supreme Court trial division is whether the decision of the Land Commission is supported by substantial evidence. Nakamura v. Moen Municipality, 8 FSM Intrm. 552, 554 (Chk. S. Ct. App. 1998).

The Chuuk State Supreme Court trial division has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law. Mathew v. Silander, 8 FSM Intrm. 560, 563-64 (Chk. S. Ct. Tr. 1998).

When an administrative remedy is provided by statute, relief ordinarily must not only be sought initially from the appropriate administrative agency but such remedy usually must be exhausted before a litigant may resort to the courts. Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998).

The rule requiring the exhaustion of administrative remedies is a wholesome one and an aid to the proper administration of justice. One of the important reasons, is to prevent the transfer to courts of duties imposed by law on administrative agencies. Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998).

The doctrine of exhaustion of administrative remedies requires that no one is entitled to bring a land dispute to court until the Land Commission has been given a chance to decide the case because the Land Commission is the proper forum for the determination of land ownership. Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998).

When a plaintiff seeks to establish a claim in a court action that is identical to the claim he already established in administrative proceedings, a court judgment could do no more, and payment of the claim can only be lawfully done by legislative appropriation. Mark v. Chuuk, 8 FSM Intrm. 582, 583 (Chk. S. Ct. Tr. 1998).

The Chuuk State Supreme Court trial division has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law. The Judiciary Act of 1990, Chk. 190-08, 18, provides that a person adversely affected or aggrieved by an agency action, is entitled to judicial review thereof. Mark v. Chuuk, 8 FSM Intrm. 582, 584 (Chk. S. Ct. Tr. 1998).

A person who has not been adversely affected or aggrieved by administrative action cannot seek court review when his rights were fully protected by his successful administrative claim. His remedy is not with the judiciary, but with the Legislature for an appropriation to pay his claim. Mark v. Chuuk, 8 FSM Intrm. 582, 584 (Chk. S. Ct. Tr. 1998).

Administrative procedures, where applicable and valid, must be followed before seeking judicial disposition of matter. It is incumbent on parties to follow administrative procedures concerning their disputes as designated by applicable state law before coming to court unless and until the state law is judged invalid. Abraham v. Kosrae, 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999).

When the administrative steps essential for court review of employment terminations have not yet been completed, the court cannot review the termination. Abraham v. Kosrae, 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999).

Since no appeal process for grievances existed from June 1997 to February 1998, during which time the complaint was filed, it would have been futile for the plaintiff to follow administrative procedures regarding her grievance. Exhaustion of administrative remedies before suing in court is not required when it would be futile for a plaintiff to pursue an administrative remedy. Abraham v. Kosrae, 9 FSM Intrm. 57, 60-61 (Kos. S. Ct. Tr. 1999).

There are no provisions in Title 18 that prohibit an the filing of a civil action by non-employee for a grievance based upon facts which occurred during his or her employment with the Kosrae state government. For employees, Title 18 provides that an administrative procedure must be followed first, as prescribed by their branch heads. Abraham v. Kosrae, 9 FSM Intrm. 57, 61 (Kos. S. Ct. Tr. 1999).

Disciplinary actions, suspensions, demotions and dismissals, taken in conformance with Title 18 are in no case subject to review in the courts until the administrative remedies have been exhausted. Grievances are not disciplinary actions. Title 18 does not provide any limitations on the court's review of grievances or grievance appeals. There is no limitation of judicial review with respect to grievances. Abraham v. Kosrae, 9 FSM Intrm. 57, 61 (Kos. S. Ct. Tr. 1999).

Under Title 18, there is no limitation on the court's jurisdiction to hear claims based upon a grievance filed by a former employee of the Executive Branch. Abraham v. Kosrae, 9 FSM Intrm. 57, 61 (Kos. S. Ct. Tr. 1999).

An appeal from the Executive Service Appeals Board's decision to the Kosrae State Court was available for state employee grievances. The Kosrae State Court trial division's jurisdiction to reverse or modify a finding of the ESAB was limited under Kosrae State Code section 5.421(2) to violations of law or regulation. In this regard, the state court acted as an appellate tribunal. Kosrae v. Langu, 9 FSM Intrm. 243, 246 & n.2 (App. 1999).

On an appeal from the Executive Service Appeals Board's decision it was not within the authority of the Kosrae State Court to make new factual determinations in light of the express stricture in section 5.421(2) that the state court could reverse or modify an ESAB finding only if it finds a violation of law or regulation. Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

Although an inquiry whether state employees were not exempt, but were permanent employees under section 5.409, is fact driven the court or other administrative body must determine material facts before it can apply the statute to those facts the final determination whether an individual falls within a specific category defined by statute is necessarily one of law, not fact. Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

Once a claimant's entitlement to damages is established, the amount of damages is an issue of fact for the finder of fact. Kosrae v. Langu, 9 FSM Intrm. 243, 250 (App. 1999).

When an administrative procedure and ensuing appeal has afforded parties complete relief for their grievances pursuant to statutes and regulations and the parties' constitutional claims are not the basis for any separate or distinct relief, the constitutional issue need not be reached. Kosrae v. Langu, 9 FSM Intrm. 243, 250-51 (App. 1999).

A person, including a corporation, who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case is entitled to judicial review. International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Rejection of a contractor's bid on the basis it was incomplete is a final administrative determination which confers on the bidder the right to judicial review. International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Under Yap law, proceedings for judicial review of an agency decision may be instituted by filing a petition in a court of competent jurisdiction within thirty days after the issuance of the decision to be reviewed. The agency may grant, or the court may order, a stay of the administrative agency's final decision on appropriate terms. International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Judicial review of an agency decision is confined to the record, although the court may receive briefs, hear oral argument, and receive supplemental evidence. The court cannot substitute its judgment for that of the agency on factual questions and must give appropriate weight to the agency's experience, technical competence, and specialized knowledge. International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

When there was no formal hearing requiring transcription, the court may shorten the time before oral argument on judicial review of an agency decision. International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 366 (Yap 2000).

When the court has scheduled oral argument for judicial review of an agency decision, when the state is facing time constraints, and when the aggrieved party, although it has presented a fair question for determination on the record, has not demonstrated to the court's satisfaction that it is so likely to prevail, the court will exercise its discretion not to enter a stay or a TRO. International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 366 (Yap 2000).

The Yap State Code provides that one who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 394, 395 (Yap 2000).

In an appeal from an administrative agency under 10 Y.S.C. 164, judicial review is be confined to the record, and upon any party's request, the court will receive briefs and hear oral argument, and the court also may, in it discretion, receive any evidence necessary to supplement the record. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 394-95 (Yap 2000).

An administrative agency proceeding in which the legal rights, duties or privileges of a party were determined is a "contested case" that may be subject to judicial review. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 395 (Yap 2000).

The standard for judicial review of an agency decision under 10 Y.S.C. 165 is the court may reverse or modify the agency's decision, or remand the case for further proceedings if the petitioner's substantial rights have been prejudiced because the agency's decision is a) in violation of applicable constitutional or statutory provisions; b) in excess of the agency's statutory authority; c) made upon unlawful procedure; d) affected by other error of law; e) clearly erroneous in view of the reliable, probative and substantial evidence in the whole record; or f) arbitrary, capricious, or characterized by abuse of discretion. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

In judicial review of an agency decision the court may not substitute its judgment for that of the agency as to issues of fact, and the court shall give appropriate weight to the agency's experience, technical competence, and specialized knowledge. Hence, the deference paid to an agency's technical expertise is an implicit part of the abuse of discretion standard applied by a reviewing court. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

A court must fully take into account the discretion that is typically accorded an official in the procurement agencies by statutes and regulations. Such discretion extends not only to the evaluation of bids submitted in response to a solicitation but also to the agency's determination with respect to the application of technical, and often esoteric, regulations to the complicated circumstances of individual procurement. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

A reviewing court may not overturn a state agency's decision unless the challenger meets the heavy burden of showing that the decision had no rational basis or involved a clear and prejudicial violation of applicable statutes or regulations. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

It is not for the court to second-guess the state's determination that a bidder's related experience was insufficient to qualify it as the lowest responsible bidder because a court has no warrant to set aside agency actions as arbitrary or capricious when those words mean no more than that the judge would have handled the matter differently had he been an agency member. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 404 (Yap 2000).

The Chuuk State Supreme Court trial division may review decisions of an administrative agency, including the land commission. The court reviews the whole record and gives due account to the rule of prejudicial error. The court may conduct a de novo review of an administrative determination when the agency action was adjudicative in nature and the fact finding procedures employed by the agency were inadequate. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

A court reviewing a land commission determination must have before it a full and complete record upon which the land commission's final decision on the parties' claims was based. An agency action is subject to de novo review when the agency action is adjudicative in nature and its fact finding procedures are inadequate. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 492 (Chk. S. Ct. Tr. 1999).

Not only is a full and complete record of the land commission's action needed for court review, but the Trust Territory Code requires that there be a full and complete record of any land commission determinations. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

Although the land commission may appoint a land registration team to conduct hearings and adjudicate the parties' competing claims, the land registration team's determination, including the record upon which it is based, is not the final determination of ownership. Rather, it is the subsequent action of the land commission that establishes a determination of ownership and which is, in turn, subject to judicial review. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

If the land commission approves the land registration team's report, either initially or after remand for further hearings, and issues a determination, it is the land registration team's record that will be subject to judicial review. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

Without a full and complete record of the land commission's determination, a reviewing court cannot conduct a fair and meaningful review of the land commission's actions. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 494 (Chk. S. Ct. Tr. 1999).

When the land commission's determination provides no explanation as to why it apparently rejected the land registration team's determination or how it reached its own determination, when the absence of a complete record makes it impossible for the court to review the land commission's determination, and when even if the court were to review the matter giving due regard for the rule of prejudicial error, the land commission's decision would be set aside for its failure to observe procedures required by the Trust Territory Code, the court, given the land commission's failure to prepare a complete record and the time elapsed, will conduct a de novo review of the land commission action. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 494-95 (Chk. S. Ct. Tr. 1999).

The Chuuk State Supreme Court will not set aside a Land Commission determination on the ground that members of the land registration team were not residents of Weno when that issue was not raised and argued before the Land Commission. O'Sonis v. Sana, 9 FSM Intrm. 501, 502 (Chk. S. Ct. Tr. 2000).

Jurisdiction of the Chuuk State Supreme Court trial division in appeals from the Land Commission is limited to a review of the Land Commission record and is not a trial de novo. O'Sonis v. Sana, 9 FSM Intrm. 501, 502-03 (Chk. S. Ct. Tr. 2000).

The Chuuk State Supreme Court applies the "clearly erroneous" standard of review when considering the decisions of administrative agencies. O'Sonis v. Sana, 9 FSM Intrm. 501, 503 (Chk. S. Ct. Tr. 2000).

If an agency decision is a considered judgment arrived at on the basis of hearings, a full record, and careful reflection, courts are more likely to rely on the agency's knowledge and judgment and to restrict the scope of judicial review. O'Sonis v. Sana, 9 FSM Intrm. 501, 503 (Chk. S. Ct. Tr. 2000).

The court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Nena v. Heirs of Melander, 9 FSM Intrm. 523, 524-25 (Kos. S. Ct. Tr. 2000).

The Kosrae State Court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Kufus v. Palsis, 9 FSM Intrm. 526, 527 (Kos. S. Ct. Tr. 2000).

With respect to review of factual findings, the court, when reviewing a Land Commission decision, normally should merely consider whether the Land Commission has reasonably assessed the evidence presented. On appeal the court should not substitute its judgment for those well-founded Land Commission findings because it is primarily the Land Commission's task, and not the reviewing court's, to assess the witnesses' credibility and resolve factual disputes, since the Land Commission, not the court, was present during the testimony. Heirs of Kufus v. Palsis, 9 FSM Intrm. 526, 527 (Kos. S. Ct. Tr. 2000).

When the Land Commission's findings with respect to the Determination of Ownership are based upon substantial evidence in the record of the formal hearing and the Land Commission reasonably assessed the evidence that was presented at the hearing and has properly resolved the legal issues presented its decision will be affirmed. Heirs of Kufus v. Palsis, 9 FSM Intrm. 526, 528 (Kos. S. Ct. Tr. 2000).

The Kosrae State Court, in reviewing the Land Commission's procedure and decision, considers whether the Land Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Taubert v. Talley, 9 FSM Intrm. 541, 542 (Kos. S. Ct. Tr. 2000).

On appeal the court should not substitute its judgment for those well-founded findings of the Land Commission, but questions of law are reserved to the court and the court must consider whether the Land Commission has reasonably assessed the evidence presented. Taubert v. Talley, 9 FSM Intrm. 541, 542 (Kos. S. Ct. Tr. 2000).

The Land Commission's finding of fact that the appellee obtained title to the land through a land exchange was based upon a reasonable assessment of the evidence and was not clearly erroneous when supported by testimony of a witness who was cross-examined on other points of his testimony, but was not cross-examined about the land exchange, because an inference of the failure to cross-examine about the land exchange testimony was the opponent's acceptance of those facts testified to by the witness. The Land Commission's decision will thus be affirmed. Taubert v. Talley, 9 FSM Intrm. 541, 543 (Kos. S. Ct. Tr. 2000).

A court will not dismiss a case for failure to exhaust administrative remedies when to do so would require the plaintiff to pursue relief through an unconstitutional procedure. Udot Municipality v. FSM, 9 FSM Intrm. 560, 563 (Chk. 2000).

A person adversely affected or aggrieved by agency action is entitled to judicial review thereof in the FSM Supreme Court. The court shall conduct a de novo trial of the matter, and shall decide all relevant questions of law and fact. Ting Hong Oceanic Enterprises v. Ehsa, 10 FSM Intrm. 24, 28 (Pon. 2001).

Statutory Construction

Due process may well require that, in a National Public Service System employment dispute, the ultimate decision-maker reviews the record of the ad hoc committee hearing, at least insofar as either party to the personnel dispute may rely upon some portion of the record. 52 F.S.M.C. 156. Suldan v. FSM (I), 1 FSM Intrm. 201, 206 (Pon. 1982).

The National Public Service System Act fixes two conditions for a national government employee's termination. Responsible officials must be persuaded that: 1) there is "cause," that is, the employee has acted wrongfully, justifying disciplinary action; and 2) the proposed action will serve "the good of the public service." 52 F.S.M.C. 151-157. Suldan v. FSM (II), 1 FSM Intrm. 339, 353 (Pon. 1983).

The National Public Service System Act's provisions create a mutual expectation of continued employment for national government employees and protect that employment right by limiting the permissible grounds, and specifying necessary procedures, for termination. This, in turn, is sufficient protection of the employment right to establish a property interest. Suldan v. FSM (II), 1 FSM Intrm. 339, 353-54 (Pon. 1983).

The highest management official must base his final decision on a national government employee's termination under section 156 of the National Public Service System Act, upon the information presented at the ad hoc committee hearing and no other information. Suldan v. FSM (II), 1 FSM Intrm. 339, 359-60 (Pon. 1983).

If, pursuant to section 156 of the National Public Service System Act, the highest management official declines to accept a finding of fact of the ad hoc committee, the official will be required by statutory as well as constitutional requirements to review those portions of the record bearing on the factual issues and to submit a reasoned statement demonstrating why the ad hoc committee's factual conclusion should be rejected. Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983).

The National Public Service System Act, by implication, requires final decisions by unbiased persons. Suldan v. FSM (II), 1 FSM Intrm. 339, 362 (Pon. 1983).

Where there is a conflict between a statute of general application to numerous agencies or situations, such as the APA, and a statute specifically aimed at a particular agency or procedure, such as the National Election Code, the more particularized provision will prevail. This rule is based upon recognition that the legislative body, in enacting the law of specific application, is better focused and speaks more directly to the affected agency and procedure. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987).

Even if some deference is accorded to the legal judgment of an agency, the courts must remain the final authority on issues of statutory construction. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 132 (App. 1987).

Any court deference to another decision-maker on a legal question is a departure from the norm and may occur only when there is sound reason. Olter v. National Election Comm'r, 3 FSM Intrm. 123, 132, 134 (App. 1987).

When there is no statement in an act or implication in its regulative history that Congress intended court deference to administrative interpretations of the statute, courts make their own independent determination as to the statute's meaning. Michelsen v. FSM, 3 FSM Intrm. 416, 421 (Pon. 1988).

In reviewing the statutory interpretation of an agency authorized to implement the particular statute, the court should not defer but is under an affirmative duty to make its own determination as to the meaning of the statute when there is no indication that Congress intended the court to defer, when no particular scientific or other expertise is required for administration of the act, and when the interpretation does not involve mere routine operating decisions, but instead represents a fundamental policy decision having constitutional implications. Carlos v. FSM, 4 FSM Intrm. 17, 25 (App. 1989).
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