KOSRAE STATE COURT TRIAL DIVISION
Cite as Benjamin v. Attorney General Office Kosrae
10 FSM Intrm. 566 ( Kos. S. Ct. Tr. 2002)
 
[10 FSM Intrm. 566]
 
NENA BENJAMIN, SALIK TALLEY, KESLER
LAKUTAK, WILLIAM NENA, and PEGGY Y. ITTU,
Petitioners,
 
vs.
 
ATTORNEY GENERAL OFFICE KOSRAE,
and DIRECTOR OF ADMINISTRATION,
Respondents.
 
CIVIL ACTION NO. 116-01
 
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
 
Yosiwo P. George
Chief Justice
 
Hearing: March 26, 2002
 
Decided: March 28, 2002
 
APPEARANCES:
 
For the Petitioners:                        Canney Palsis, Esq.
                                                         Directing Attorney
                                                         Micronesian Legal Services Corporation
                                                         P.O. Box 38
                                                         Lelu, Kosrae FM 96944
 
For the Respondents:                   Paul J. Simonett, Esq.
                                                        Assistant Attorney General
                                                        Office of the Kosrae Attorney General
                                                        P.O. Box 870
                                                        Lelu, Kosrae FM 96944
 
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HEADNOTES

Mandamus and Prohibition
     A court may issue a writ of mandamus when the petitioner has met its burden to show that its right to the writ is clear and undisputable. The writ of mandamus is an extraordinary remedy issued to require a public official to carry out a clear non-discretionary duty. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 568 (Kos. S. Ct. Tr. 2002).
 
Mandamus and Prohibition
     Five elements must be present before the court can exercise its discretion to issue a writ of mandamus: 1) the respondent must be a judicial or other public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the
 
[10 FSM Intrm. 567]
 
act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 568 (Kos. S. Ct. Tr. 2002).
 
Mandamus and Prohibition
     The Office of the Attorney General is not a public officer ) it is a public office. In order to meet the mandamus requirement of a public officer, the Attorney General should have been named as a respondent. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 568 (Kos. S. Ct. Tr. 2002).
 
Mandamus and Prohibition
     A non-discretionary or ministerial act may be established by the Constitution, by state law or by regulation. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 568 (Kos. S. Ct. Tr. 2002).
 
Mandamus and Prohibition
     Because no statute or regulation requires the Attorney General or Director of Administration to explain his decision to deny the request for hazardous pay differential, it is not a non-discretionary or ministerial act. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 569 (Kos. S. Ct. Tr. 2002).
 
Public Officers and Employees ) Kosrae
     The law does not require that a supervisor (Director or Governor) implement a hazardous pay differential decision made by a subordinate employee, such as the Administrator of Division of Personnel. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 569 (Kos. S. Ct. Tr. 2002).
 
Mandamus and Prohibition ; Public Officers and Employees ) Kosrae
     Mandamus will be denied when there is another adequate legal remedy available to the petitioners ) to file a grievance on their hazardous pay differential claim and proceed through the administrative process. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 569 (Kos. S. Ct. Tr. 2002).
 
Public Officers and Employees ) Kosrae
     Any decision made by the Director's subordinate, the Administrator of Personnel, would only be deemed as advice to the Director, and not binding on the Director of Administration and Finance. Ultimately, it is the Director who is responsible for administering the Public Service System, consistent with Title 18 and applicable regulations. Benjamin v. Attorney General Office Kosrae, 10 FSM Intrm. 566, 569-70 (Kos. S. Ct. Tr. 2002).

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter is a Petition for Writ of Mandamus. The hearing on the Petition was held on March 26, 2002. Canney Palsis, MLSC appeared for the Petitioners. Respondents represented by Paul J. Simonett, Assistant Attorney General.

     Petitioners seek an order compelling the Office of Attorney General to explain why the Petitioners

[10 FSM Intrm. 568]

should not be given the hazardous pay differential which has been requested on their behalf by the Director of Health and the Administrator for Division of Personnel. Alternatively, Petitioners seek an order compelling Boldon Abraham, the Director of Administration and Finance to process payment as requested by Salpasr Tilfas, Administrator for Division of Personnel.

     Respondents claim that the Director of Administration and Finance has authority under the regulations to deny the hazardous pay differential request. Respondents argue that the Petitioners have not met the standard for issuance of a Writ of Mandamus. Respondents conclude by arguing that the proper procedure for the Petitioners to seek action on the Director Boldon Abraham's decision is to file a grievance pursuant to the procedure provided under the Public Service System regulations.

I. Standard for Issuance of a Writ of Mandamus.

     The standards governing the issuance of a writ of mandamus are well-recognized. Federated Shipping Co. v. Trial Division, 9 FSM Intrm. 270 (App. 1999). The court may issue a writ of mandamus when the petitioner has met its burden to show that its right to the writ is clear and undisputable. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1 (App. 1997). The writ of mandamus is an extraordinary remedy issued to require a public official to carry out a clear non-discretionary duty. Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 307 (App. 1990).

     There are five elements that must be present before the court can exercise its discretion to issue a writ of mandamus:

1. The respondent must be a public officer

2. The act to be compelled must be non-discretionary or ministerial

3. The respondent must have a clear legal duty to perform the act

4. The respondent must have failed or refused to perform the act; and

5. There must be no other adequate legal remedy available.

In re Failure of Justice to Resign , 7 FSM Intrm. 105 (Chk. S. Ct. App. 1995). These standards have been applied in previous Kosrae State Court cases, including Warner Edmond v. State, Civil 12-01 and Robert Jonas v. State, Civil No. 30-01. The Petitioners have not submitted any argument in their Petition to show that they meet the five elements outlined above. By contrast, the Respondent State has argued persuasively that the Petitioners have not satisfied the requirements for issuance of a writ of mandamus.

II. Analysis.

     A review of the facts is necessary to determine whether the five elements for issuance of a writ of mandamus are satisfied. The first element is satisfied as Director of Administration and Finance, Boldon Abraham, is a public officer. The Office of the Attorney General is not a public officer ) it is a public office. In order to meet the requirement of a public officer, the Attorney General should have been named as Respondent.

     The second element requires the act to be compelled be non-discretionary or ministerial. A non-discretionary or ministerial act may be established by the Constitution, by State Law or by regulation. The first act that Petitioners seek to have compelled is: "to have the Office of the Attorney General

[10 FSM Intrm. 569]

explain to the Court why petitioners should not be compensated for the hazardous differential rates as requested by the Director of Health and Administrator of Personnel." See Petition at 4. After a careful review of Kosrae State Code, Title 18, the Court could not find any provision that required the Office of the Attorney General to explain their decision. In fact, the words "Office of the Attorney General" or "Attorney General" are not even present anywhere in Title 18. Title 18 does not impose any duties upon the Office of the Attorney General or Attorney General to explain anything or to do anything under Title 18. There is also no statute of regulation that requires the Director of Administration to explain his decision to deny the request for hazardous pay differential.

     Petitioners have failed to show that the Office of the Attorney General (or Attorney General) has refused to perform a non-discretionary or ministerial act under Title 18 or its regulations. Petitioner's request to have "the Office of the Attorney General explain . . . ." does not satisfy the 2nd element required for issuance of a writ of mandamus. Therefore, the Petition for Writ Of Mandamus must be denied on this claim.

     Petitioners also seek to have a second act compelled: "To direct respondent Director of Administration and Finance to immediately effect payment as requested by Mr. Tilfas." See Petition at 4. After a careful review of Kosrae State Code, Title 18, the Court could not find any provision that requires the Director of Administration and Finance to implement a request made by his subordinate, the Administrator for Division of Personnel. Kosrae State Code, Section 18.202 sets forth the application of the Public Service System (PSS). Section 18.202 makes the Branch Heads, or their designee responsible for all actions to administer the PSS system. Therefore, the Branch Head, the Governor in this case, or his designee, is responsible to administer the PSS system for the executive branch employees. The law does not require that a supervisor (Director Abraham or the Governor) implement a decision made by a subordinate employee (Administrator of Division of Personnel). Petitioners' argument suggests that the requests made by the Director of Health and Administrator for Division of Personnel are binding upon Director Abraham. However, there is no support in the law for this argument. Indeed, the Governor and the Director of Administration are given specific duties to administer the PSS system under Section 18.202. There is no delegation of power given to the Director of Health or to the Administrator of Personnel. Petitioners have not shown that the Director of Administration had a clear, non-discretionary duty to accept and process the request for payment made by Mr. Tilfas, Administrator for Division of Personnel. Petitioners have failed to satisfy the 2nd and 3rd elements required for issuance of a writ of mandamus. Therefore, the Petition for Writ of Mandamus must be denied on this claim.

     Furthermore, there is another adequate legal remedy available to the Petitioners, as pointed out by the Respondents. The Petitioners may file a grievance on their claim for hazardous pay differential, and proceed through the administrative process provided in Kosrae State Code, Title 18 and the Public Service System regulations. Once the administrative process is completed, the Petitioners may appeal an adverse decision to this Court under Kosrae State Code, Section 18.507. Petitioners have an adequate legal remedy available to address their claims for hazardous pay differential.

     The Petitioner had argued that in the past, it had been the normal practice for the Administrator of the Division of Personnel to make decisions with respect to pay differential issues. While that may have happened, that practice is not authorized by Kosrae State Code, Title 18. There was no evidence presented at the hearing that the authority to administer Title 18 had been delegated from the Director of Administration to the Administrator for the Division of Personnel. Under Kosrae State Code, Section 18.202, it is the Director of Administration and Finance, and no one else, who is responsible for administering the public service system. Therefore, any decision made by the Director's subordinate, the Administrator of Personnel, would only be deemed as advice to the Director, and not binding on the Director. Likewise, advice may also be given by the Office of the Attorney General, or any other

[10 FSM Intrm. 570]

Director to the Director of Administration and Finance. Ultimately, it is the Director of Administration who is responsible for administering the Public Service System, consistent with Title 18 and applicable regulations.

     Based upon the above, the Petition for Writ of Mandamus is denied. Petitioners may pursue their claims for hazardous pay differential through the grievance procedures provided under Kosrae State Code, Title 18 and the applicable Public Service System regulations.

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