FSM SUPREME COURT APPELLATE DIVISION
Cite as Palsis v. Tafunsak Mun. Gov't,16 FSM Intrm. 116 (App. 2008)
AMBROSE A. PALSIS,
Appellant,
vs.
TAFUNSAK MUNICIPAL GOVERNMENT,
Appellee.
APPEAL CASE NO. K4–2007
ORDER OF DISMISSAL; REVERSAL OF SANCTION
Decided: September 9, 2008
BEFORE:
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
APPEARANCES:
For the
Appellant: Sasaki L. George, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944
* * * *
A motion to reconsider made more than ten days after entry of judgment can only be considered a Rule 60(b) motion for relief from judgment. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 120 n.1 (App. 2008).
An attorney is the real party in interest for sanctions imposed on him personally. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 122 (App. 2008).
Imposition of Appellate Rule 46(c) disciplinary sanctions is subject to due–process scrutiny. Adequate notice and an opportunity to be heard is therefore required. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 123 (App. 2008).
When an FSM court has not previously construed an FSM Appellate Procedure Rule which is
identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 123 n.4 (App. 2008).
An order that never mentions the legal services corporation law firm was inadequate on its face to serve as notice to sanction the firm, and when it was not served separately on the firm so that the firm could respond, the firm thus had no notice of any possible sanction. Although the firm is definitely responsible for supervising its attorneys, its reprimand, no matter how deserving, must be reversed because of the complete absence of any separate notice to it. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 123 (App. 2008).
Although the notice provided to an attorney in an order did not cite any of the Rules of Professional Conduct that the later reprimand found that the attorney violated, when it was notice that, if the attorney could not show good cause why no opening brief had been filed, he would then be subject to disciplinary action under Rule 46(c). Since it stated what act or omission of counsel may lead to discipline and cited Rule 46(c), the notice given was adequate for the attorney to have understood that he was facing a possible sanction for not timely filing a brief, and that, if it were imposed, the sanction would be imposed under Appellate Rule 46(c). Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 123 (App. 2008).
The good cause standard is a broader and more liberal standard than the excusable neglect standard. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 124 n.5 (App. 2008).
Counsel can certainly be disciplined for ignoring or tardily responding to repeated court orders to file appellate documents and briefs, and failure to prosecute an appeal with due diligence is sanctionable under Appellate Rule 46(c). It is not required that the court find intentional conduct in order for an attorney to be disciplined under Rule 46(c). Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 124 (App. 2008).
The inability of a law firm or of an attorney to comply with the court's rules and orders governing the filing of briefs and appendixes within the time deadlines does not excuse the attorney's or the firm's failure to comply with such rules and orders. Thus, an attorney's admitted inability to produce an appellate brief in a timely manner would not prevent him, or his law firm, if it had had notice, from being disciplined under Appellate Rule 46(c). Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 124 (App. 2008).
A single justice of the Supreme Court appellate division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 125 (App. 2008).
It is the appellate division, not a single justice, that imposes disciplinary sanctions under Rule 46(c), which may include suspension or disbarment. While a single justice may entertain and grant or deny any request for relief which under the appellate rules may properly be sought by motion, "appropriate disciplinary action" is not "relief" that can be properly sought by motion
and is thus not within a single justice's power. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 125 (App. 2008).
In the interpretation of rules, the specific provision prevails over the general provision. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 125 (App. 2008).
Only an appellate panel has the power to impose attorney disciplinary sanctions through the application of Appellate Rule 46(c). A single justice cannot impose Rule 46(c) disciplinary sanctions. The proper procedure is for the appellate division to give notice of possible sanction after disposing of the appeal, or in a criminal appeal, after the offending attorney has been discharged. The same panel would then rule on, and impose, if necessary, the appropriate sanction. If the appeal is disposed of by a single justice dismissal order, that justice may give notice of possible Rule 46(c) discipline, but only a full appellate panel may decide whether to impose it. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 126 (App. 2008).
Besides Appellate Rule 46(c), disciplinary sanctions may also be imposed on an attorney through a complaint referred to the Chief Justice and docketed by the Chief Clerk, which then proceeds through the usual process in the Disciplinary Rules. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 126 & n.9 (App. 2008).
A single justice reprimand must be reversed since a single justice lacks the power to impose Rule 46(c) discipline. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 126 (App. 2008).
There is a marked preference for oral argument on an appeal's merits, although he parties may, of course, waive oral argument unless the court directs otherwise. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 126–27 & n.11 (App. 2008).
Appellate Rule 2 provides a ready means for dispensing with oral argument, especially when the argument would not be on the merits. In the interest of expediting decisions, or for other good cause shown, the rule allows the appellate division, on a party's application or on its own motion, to suspend any of the rules' requirements or provisions in a particular case except as otherwise provided in Rule 26(b), which prohibits the court from enlarging time to file an appeal or to seek permission to appeal and does not mention oral argument. Thus, even if Rule 34(a) were read to require oral argument in all final dispositions, Rule 2 would permit dispensing with oral argument. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 127 (App. 2008).
The Constitution's due process protections do not require appellate oral argument. Oral argument on appeal is not an essential ingredient of due process. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 127 (App. 2008).
Motions may be decided without oral argument. When it does not appear that argument would help the decisional process, oral argument is not required on a dismissal issue, when the
appellant has had, and has taken, his opportunity to be heard by filing written submissions. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 127 (App. 2008).
A single FSM Supreme Court appellate division justice may entertain and may grant or deny any request for relief which under the appellate rules may properly be sought by motion, but a single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon failure of a party to comply with the rules' timing requirements. The phrase "timing requirements of these rules" has been interpreted to include an appellant's failure to file an opening brief or a statement of issues on appeal and a designation of the record, and the failure to file a notice of appeal within the time prescribed by Appellate Rule 4. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 128 (App. 2008).
If an appellant fails to file a brief within the time set by rule, or within the time as extended, an appellee may move for dismissal of the appeal. But Rule 31(c) does not require an appellee to do so. Rule 31(c) also does not prevent an appellate court, in an effort to control its own docket, from also moving to dismiss an appeal for an appellant's failure to timely file a brief. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 128 (App. 2008).
The court may, through a single justice, make its own motion to dismiss as a matter of appellate docket management. A court cannot decide its own motion without first giving the parties notice and an opportunity to be heard because that would violate a litigant's due process rights guaranteed by the FSM Constitution since notice and an opportunity to be heard is the essence of due process. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 128–29 (App. 2008).
It is within the single justice's power to move sua sponte, with notice, for, and to dismiss appeals for the appellants' failure to timely file opening briefs. Like any single justice order, an aggrieved party may apply for review of the dismissal order by a full appellate panel, which then must consider it. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 129 (App. 2008).
A full panel's review of a single justice order is de novo. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 129 (App. 2008).
Dismissal for an attorney's inexcusable neglect in failing to file an opening brief must be handled differently in civil and criminal appeals. Appellate courts are much more reluctant to dismiss a criminal appeal for an attorney's inexcusable neglect because a criminal defendant has no other remedy. When a civil appeal is dismissed for inexcusable neglect in prosecuting the appeal, if the party whose appeal is thus dismissed is thereby aggrieved, his remedy will be against his attorney. A criminal appellant has no such remedy. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 129–30 (App. 2008).
The burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee. Until such application for extended time is made so that it may be considered before the allotted time has expired, it is evidence
of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 130 (App. 2008).
When there is a pattern of not seeking enlargements of time until after filing dates have passed, whether the date was set by the court or by rule, or was even suggested by the appellant as when the brief would be done; when this practice is considered evidence of a lack of good faith; and when the appellant does not present any extraordinary circumstances that would warrant excusing his neglect in filing his brief six months late, the dismissal of his appeal is proper. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 130 (App. 2008).
The appellate court does not have to just patiently wait until a legal services corporation attorney has finished a brief and then moved for an enlargement of time so that the appeal can then be decided on the merits. The policy preference for adjudications on the merits (and when a case is on appeal it has already been adjudicated on the merits once – by the trial court) does not automatically override or negate all other considerations or make the procedural rules a nullity. The Appellate Rules' timing requirements apply to legal services clients with equal vigor as with any other civil appellant. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 131 (App. 2008).
When the notice of appeal was filed not within 42 days of the December 27, 2006 decision but within 42 days of the March 22, 2007 denial of the reconsideration motion, the denial of the reconsideration motion, if it was a Rule 60(b) motion for relief from judgment, would be the only issue before the court on an appeal on the merits. Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 131 (App. 2008).
* * * *
PER CURIAM:
This comes before us on appellant Ambrose A. Palsis's request to review a single justice's order dismissing this appeal and imposing disciplinary sanctions on Palsis's counsel, Sasaki L. George, and on the Micronesian Legal Services Corporation ("MLSC"). After review, we dismiss the appeal and reverse the disciplinary sanctions. Our reasons follow.
On December 27, 2006, the Kosrae State Court entered a Memorandum of Decision; Judgment in the favor of defendant Tafunsak Municipal Government. On February 12, 2007, the plaintiff, Ambrose A. Palsis, filed a motion to reconsider decision, amend findings, and for additional findings. On March 22, 2007, the Kosrae State Court denied the motion as untimely because a motion to amend findings or a motion to alter or amend judgment must be made within ten days of entry of judgment.1 On May 2, 2007, Palsis filed a notice of appeal in the FSM Supreme Court appellate division. (This was
41 days after the March 22, 2007 reconsideration denial, the next to last day to appeal to the FSM Supreme Court appellate division. FSM App. R. 4(a)(1)(A).) On May 11, 2007, Palsis ordered the record and requested a transcript from the Kosrae State Court, and on May 14, 2007, Palsis filed his notice of appeal in the Kosrae State Court.2
On August 22, 2007, the Chief Clerk issued a briefing schedule setting October 8, 2007, as the due date for Palsis's opening brief. (The Chief Clerk appears to have miscounted to the appellant's benefit because 40 days are allowed to file an opening brief, FSM App. R. 31(a); 12(b), which would have made the due date October 1, 2007.) When no brief was filed or enlargement of time sought, the Chief Justice, on November 22, 2007, issued an order for Palsis to show cause, no later than December 15, 2007, why his appeal "should not be dismissed and why the Court should not take appropriate disciplinary action against Mr. George [Palsis's counsel] pursuant to Appellate Rule 46(c)." Order to Show Cause at 1 (Nov. 22, 2007). It further stated that "[i]f Mr. George requests a hearing before the entire panel, the Court will consider, as part of the disciplinary action, if any, requiring Mr. George, in his individual capacity, to pay the travel costs incurred by the panel." Id.
On December 24, 2007, George signed his Written Submissions, with a memorandum and supporting exhibits and affidavit. These were filed on December 28, 2007. George stated in the memorandum that he believed he could finish the opening brief in this, and four other appeal cases, by February 20, 2008. Memo. at 2 (Dec. 28, 2007).
No brief having been filed or enlargement of time sought, the Chief Justice, on March 12, 2008, issued an Order of Dismissal; Reprimand, which dismissed the case for failure to show good cause why the appellants' opening brief had not been filed, and which reprimanded George for conduct unbecoming a member of the bar, for breaching his fiduciary duties to his client by not providing competent legal services to him or acting for him with diligence and promptness. Order of Dismissal; Reprimand at 2–4 (Mar. 12, 2008). The order also held that, since George was a MLSC employee, George was not alone in his misconduct; MLSC had a responsibility to supervise his work and had "failed to live up to its fiduciary obligations by allowing Mr. George to neglect this appellate matter to the detriment of Mr. Palsis." Id. at 4. The order further noted that since it was a single justice order, either George or Palsis could, under Appellate Rule 27(c) seek review by the full panel and added that "[s]uch review, if sought, must be requested by filing a request for review within fourteen (14) days of service of this order." Id. The order was served on March 13, 2008. The due date was thus March 27, 2008.
On March 30, 2008,3 Palsis faxed to the court a Motion for Reconsideration and a Request for Appellate Panel Review, which the clerk marked received on March 31, 2008. These included a request to permit them to be filed by fax. The clerk filed these on April 8, 2008, after they were received by mail. On May 8, 2008, the Chief Justice issued an Order Appointing Panel to Consider Motion for Reconsider; Order of Recusal, in which he noted that, in his view, even if he were to grant the request to file by fax, the March 31, 2008 fax was too late because it was not within 14 days of service, and assigned consideration of the motions to the current appellate panel.
Palsis's opening brief and appendix were filed April 11, 2008.
Palsis's Motion for Reconsideration and his Request for Review by Appellate Panel were filed April 8, 2008. The motion seeks reconsideration of the single justice's March 12, 2008 order as well as review of the single justice order by the full panel. The request for review indicates that George believes that the reconsideration motion is before a single justice and the review request is directed to a full appellate panel. Both of these have been assigned to the current panel for its consideration. The motion and the request combined are essentially two motions – two different requests for relief: 1) to reconsider the single justice's dismissal of Palsis's appeal and 2) to reconsider the single justice's imposition of the disciplinary sanction of public reprimand against counsel Sasaki George and against MLSC. The motion and request also ask that the court accept for filing the motion and the request. This is presumably a motion to enlarge time for filing to whenever they are received. The reconsideration motion also asked that the time to file Palsis's opening brief be enlarged to ten days after the motion was submitted (presumably until April 7, 2008, ten days after the March 28, 2008 submission date of the motion). (The brief was not filed until April 11.)
The disciplinary sanctions will be discussed first.
A. Imposition of the Disciplinary Sanction
George (since he is the real party in interest for sanctions imposed on him personally) and MLSC [presumably represented by George] contend that the notice in the November 22 order "was inadequate, in relations to the findings that the Court ultimately made." Motion for Reconsideration at 11.
The November 22 order, in its first paragraph, recited that Palsis's opening brief was due October 8, 2007 and that no brief had been filed and that this violated Appellate Rule 31. The second paragraph, in its entirety, then gave the following notice: "Accordingly, appellant and Mr. George are hereby ordered to show cause why appellant's appeal should not be dismissed and why the Court should not take appropriate disciplinary action against Mr. George pursuant to Appellate Rule 46(c)." Order to Show Cause at 1 (Nov. 22, 2007). The last paragraph set December 15, 2007 as the date by which to file written submissions and further stated that "[i]f Mr. George requests a hearing before the entire panel, the Court will consider, as part of the disciplinary action, if any, requiring Mr. George, in his individual capacity, to pay the travel costs incurred by the panel." Id.
George contends that the November 22 order did not apprise him of the charges that he wrongfully committed – blatant disregard of the appellate rules, violation of professional obligations and the sacred trust owed client Palsis, and neglecting court filing deadlines. The single justice found that George violated FSM MRPC Rules 1.1 (failure to provide competent legal representation to a client), and 1.3 (failure to act with reasonable diligence and promptness in representing a client). Order of Dismissal; Reprimand at 3 (Mar. 12, 2008). George also contends that the November 22 order did not apprise him that the court or the single justice would impose disciplinary sanctions in the appeal, but that (he assumed) any disciplinary sanctions would come through referral to a disciplinary counsel under the Disciplinary Rules, or by way of a Title 4 contempt proceeding, or through the court's inherent powers. George further contends that, since the notice was inadequate, there was no real opportunity to be heard, especially since the notice's language, in his view, discouraged a hearing by requiring George to pay the panel's travel costs if he asked for one. George asserts that MLSC should not be
disciplined because it was never given any notice or opportunity to be heard. And lastly, George, relying on In re Sanction of Woodruff, 10 FSM Intrm. 79 (App. 2001), argues that if the court's inherent powers were used to reprimand him, clear and convincing evidence of his bad faith was needed and that there was no such evidence since, in his view, there had been no bad faith on his part because he was trying his best to get all his appellate briefs satisfactorily completed.
B. Notice of Possible Discipline
Imposition of Rule 46(c) disciplinary sanctions is subject to due–process scrutiny. See, e.g., In re Bithoney, 486 F.2d 319, 323–24 (1st Cir. 1973).4 Adequate notice and an opportunity to be heard is therefore required. In re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App. 1997).
1. MLSC
The November 22, 2007 order was inadequate on its face to serve as notice to sanction MLSC. That order never mentioned MLSC. Nor was it served separately on MLSC so that MLSC could respond. MLSC thus had no notice of any possible sanction. Although MLSC is definitely responsible for supervising its attorneys, the reprimand of MLSC, no matter how deserving, must be reversed because of the complete absence of any separate notice to MLSC.
2. George
The notice provided to George by the November order did not cite any of the Rules of Professional Conduct that the March reprimand found that George violated. But, because of the recitation in its first paragraph, it was notice that, if George could not show good cause why no opening brief had been filed, he would then be subject to disciplinary action under Rule 46(c), which was cited, and it does state what act or omission of counsel may lead to discipline. The notice given George was thus adequate for him to have understood that he was facing a possible sanction for not timely filing a brief, and that, if it were imposed, the sanction would be imposed under Appellate Rule 46(c).
C. Whether a Sanction Can Be Imposed
George's response did address the causes of the delays. He mentions that he had to travel to Chuuk three times (for a total of 28 days) between August 28 and November 19, 2007, as court–appointed counsel for a criminal defendant in the FSM Supreme Court, an appointment he tried to decline but was denied; he had four other appellant's briefs due in four other appeals; people kept coming to the MLSC office seeking urgent legal assistance, which he could not turn away because those cases were assigned to him; and he was generally overwhelmed. Aff. George at 2–3 (Dec. 28, 2007). He further stated that, in all three prior appeals that he had briefed, because of his lack of formal legal training, he had difficulty in completing the briefs since he "needed long uninterrupted hours to not only find [his] argument, but to learn how to write the arguments appropriately." Id. at 2.
Even assuming that George had good cause why the brief was not filed by October 8, 2007, or by November 22, 2007, because of his appointment to represent a defendant in three criminal cases in the FSM Supreme Court, Chuuk, and the attendant time and travel that that involved, which may have been good cause5 for not filing an opening brief by October 8, 2007, or by November 22, 2007. But that situation would not qualify as good cause for not filing an opening brief by February 20, 2008, Palsis's suggested due date for the brief, or by March 12, 2008, when the single justice order was issued, and definitely would not qualify as good cause for not filing an opening brief until April 11, 2008, the date it was actually filed.
Counsel can certainly be disciplined for ignoring or tardily responding to repeated court orders to file appellate documents and briefs. United States v. Song, 902 F.2d 609, 610 (7th Cir. 1990); United States v. Bush, 797 F.2d 536, 537–38 (7th Cir. 1986). In the present appeal, George did not exactly ignore repeated court orders because he was never given an enlargement of time after October 8, 2007, but he did have a habit of responding tardily, and he ultimately filed the opening brief six months late. George's responses to the single justice's show cause order and to the dismissal/reprimand were always tardy, although sometimes only by a day or two. Furthermore, he never moved for an enlargement of time before the due date passed, which is also the better, and the preferred, practice.
Failure to prosecute an appeal with due diligence is sanctionable under Appellate Rule 46(c). See, e.g., Song, 902 F.2d at 610; United States v. Stillwell, 810 F.2d 135, 136 (7th Cir. 1987) ($500 penalty); United States v. Dominguez, 810 F.2d 128, 129 (7th Cir. 1987) ($1,000 penalty); Bush, 797 F.2d at 538 ($500 penalty); In re Pritzker, 762 F.2d 532, 533 (7th Cir. ($1,000 penalty); In re Harte, 701 F.2d 62, 62 (7th Cir. 1983) (public reprimand); In re Hanson, 572 F.2d 192, 193 (9th Cir. 1977) ($500 penalty); In re Morris, 521 F.2d 793, 794 (9th Cir. 1975) ($300 penalty); In re Margolin, 518 F.2d 551, 551 (9th Cir. 1975) ($500 penalty); In re Silver, 508 F.2d 647, 647 (9th Cir. 1974) (repay 80% of fee); United States v. Farmer, 476 F.2d 996, 997 (9th Cir. 1973) ($779.40 penalty); United States v. Pearson, 476 F.2d 996, 996 (9th Cir. 1973) ($100 penalty); United States v. Rivera, 473 F.2d 1372, 1372 (9th Cir. 1972) ($500 penalty); Gilroy v. Erie Lackawana R.R., 421 F.2d 1321, 1323 (2d Cir. 1970).
It is not required that the court find intentional conduct in order for an attorney to be disciplined under Rule 46(c). DCD Programs, Ltd. v. Leighton, 846 F.2d 526, 528 (9th Cir. 1988); Hanson, 572 F.2d at 193. And the inability of a law firm or of an attorney to comply with the court's rules and orders governing the filing of briefs and appendixes within the time deadlines does not excuse the attorney's or the firm's failure to comply with such rules and orders.6 In re Solerwitz, 848 F.2d 1573, 1580 (Fed. Cir. 1988); Bush, 797 F.2d at 538; Harte, 701 F.2d at 62. Thus, George's admitted inability to produce an appellate brief in a timely manner would not prevent him (or MLSC, if it had had notice) from being disciplined under Rule 46(c).
But we do not need to resolve this issue because the sanction must be reversed on a different ground as discussed next.
D. Single Justice's Lack of Power to Impose Rule 46(c) Discipline
The one point that George does not raise directly7, but that the court will need to address, is jurisdictional – whether a single justice has the power to impose disciplinary sanctions through Appellate Rule 46(c).
Neither Rule 46(c) nor Rule 27(c) indicates that a single justice may impose attorney discipline sanctions through Rule 46(c). Rule 27(c) provides that: "a single . . . justice of the Supreme Court appellate division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion." While Rule 46(c) states, in its entirety:
The Federated States of Micronesia Supreme Court appellate division may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any person certified to practice before the Supreme Court of the Federated States of Micronesia, for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court.
FSM App. R. 46(c). Two things are apparent. One, it is the appellate division that imposes disciplinary sanctions under Rule 46(c), which may include suspension or disbarment, FSM App. R. 46(b). (The term "appellate division" refers to either a full appellate panel or to all remaining article XI, section 3 judges, who are not disqualified. It is they who may take "any appropriate disciplinary action" against one certified to practice before the court.) Two, a single justice may entertain and grant or deny any request for relief which under the appellate rules may properly be sought by motion. But "appropriate disciplinary action" is not "relief" that can be properly sought by motion and is thus not within a single justice's power.8
This also conforms to the norms of statutory construction and the interpretation of rules – that the specific provision prevails over the general provision. See, e.g., Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987); FSM v. Petewon, 14 FSM Intrm. 463, 466–67 (Chk. 2006) (court–promulgated rules are interpreted using the principles of statutory construction); Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 101, 104 (Kos. 2003); In re Engichy, 12 FSM Intrm. 58, 64, 69 (Chk. 2003). Thus, the specific provision of Rule 46(c) ("appellate division") prevails over the general
provision of Rule 27(c) (allowing single justice to grant or deny relief properly sought by motion).
In the U.S. courts of appeal from which our Rule 46(c) was adopted, the ruling imposing (or declining to impose) Appellate Rule 46(c) disciplinary sanctions was made by an appellate panel, and the notice is given by the appellate panel as well. In In re Solerwitz, 848 F.2d 1573 (Fed. Cir. 1988), this procedure differed slightly in that the show cause order was issued by the Federal Circuit Court of Appeals judges in banc; but a single judge conducted the requested hearing at which seven witnesses testified and other evidence was presented; the single judge made factual findings and recommended certain discipline be imposed; the in banc panel (10 judges) reviewed the testimony and the single judge's recommended discipline; and the in banc panel then imposed the discipline in part as recommended and in part as modified. Thus, even though a single judge conducted the requested hearing, the notice was given and the disciplinary sanctions were imposed, by the Solerwitz court in banc. In In re Hendrix, 986 F.2d 195, 201 (7th Cir. 1993), the appellate panel, after deciding the appeal, gave notice to a lawyer that he may have engaged in sanctionable conduct and gave him 14 days to show cause why he should not be sanctioned under Rule 46(c).
We conclude that only an appellate panel has the power to impose attorney disciplinary sanctions through the application of Appellate Rule 46(c). A single justice cannot impose Rule 46(c) disciplinary sanctions.9 Thus, the proper procedure is for the appellate division to give notice of possible sanction after disposing of the appeal, or in a criminal appeal, after the offending attorney has been discharged. The same panel would then rule on, and impose, if necessary, the appropriate sanction. If the appeal is disposed of by a single justice dismissal order, that justice may give notice of possible Rule 46(c) discipline, but only a full appellate panel may decide whether to impose it.
Thus, the March 12, 2008 single justice reprimand is hereby reversed since a single justice lacked the power to impose it. This reversal is based solely upon the single justice's lack of power to impose Rule 46(c) discipline. We do not in anyway excuse or condone counsel's behavior in this appeal. Any similar future behavior may well result in attorney discipline.
Palsis also seeks reinstatement of his dismissed appeal and asks to be heard on the issue. We hereby grant Palsis his opportunity to be heard on the issue of the dismissal by considering his reconsideration motion and request for review even though those documents were filed late.
A. Whether Hearing Needed
Since a dismissal of the appeal may potentially result from our action on Palsis's Motion for Reconsideration, we consider first whether oral argument10 is required on the motion. Rule 34(a)
exhibits a marked preference for oral argument on an appeal's merits.11 "Oral argument shall be allowed in all cases except as otherwise provided in these rules." Id. Appellate Rule 2 provides a ready means for dispensing with oral argument, especially when the argument would not be on the merits.
In the interest of expediting decisions, or for other good cause shown, the Federated States of Micronesia Supreme Court appellate division may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its discretion.
FSM App. R. 2. Rule 26(b) prohibits the court from enlarging time to file an appeal or to seek permission to appeal and does not mention oral argument. Thus, even if Rule 34(a) were read to require oral argument in all final dispositions, Rule 2 would permit us to dispense with oral argument.12
Nor does the Constitution's due process protections require appellate oral argument. "Oral argument on appeal is not an essential ingredient of due process." Price v. Johnson, 324 U.S. 266, 286, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356, 1369 (1948). In National Labor Relations Board v. Local No. 42, 476 F.2d 275, 276 (3d Cir. 1973), the appellate court held that denial of oral argument did not violate constitutional due process rights when oral argument would be held if any one member of the panel requested it. Id. (relying on Federal Communications Comm'n v. WJR, The Goodwill Sta., Inc., 337 U.S. 265, 276, 69 S. Ct. 1097, 1103, 93 L. Ed. 1353, 1360–61 (1949); Huth v. Southern Pac. Co., 417 F.2d 526 (5th Cir. 1969)).
Furthermore, we have previously held that "[m]otions may be decided without oral argument." Christian v. Urusemal, 14 FSM Intrm. 291, 293 (App. 2006). It does not appear that argument would help the decisional process. Thus, oral argument is not required on the dismissal issue. Palsis has had, and has taken, his opportunity to be heard by filing written submissions. See Ehsa v. Pohnpei Port Auth., 14 FSM Intrm. 567, 571–72 (Pon. 2007); Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 59 (Kos. S. Ct. Tr. 2002); Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 430, 432 (Pon. 2001); see also Chuuk v. Andrew, 15 FSM Intrm. 39, 42 (Chk. S. Ct. App. 2007).
B. Whether Dismissal Proper
Palsis requests reconsideration of the dismissal on the grounds 1) that the November 22, 2007 order did not give Palsis notice that the Chief Justice would dismiss the appeal under Rule 27(c) and requests an opportunity to be heard on the Rule 27(c) dismissal; 2) that the policy that matters be adjudicated on their merits means that the court should sanction counsel rather than dismissing the client's case; and 3) that in other cases dealing with counsel's non–compliance with the appellate rules, this case is different. Palsis also questions whether dismissal is proper under Rule 27(c) or under the court's inherent power.
1. Power of Single Justice to Dismiss and Rule 31(c)
Under our appellate rules,
a single article XI, section 3 justice of the Supreme Court appellate division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, although a single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon failure of a party to comply with the timing requirements of these rules.
FSM App. R. 27(c). Our Rule 27(c) differs from the U.S. federal Appellate Rule 27(c) in that the U.S. rule bars a single judge13 from dismissing or otherwise determining an appeal on any ground. U.S. Fed. R. App. P. 27(c).
Rule 27(c)'s phrase "timing requirements of these rules" has been interpreted to include an appellant's failure to file an opening brief or a statement of issues on appeal and a designation of the record, Cuipan v. FSM, 10 FSM Intrm. 323, 325–26 (App. 2001); Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264, 265 (App. 1998), and the failure to file a notice of appeal within the time prescribed by Appellate Rule 4, see, e.g., Pohnpei v. AHPW, Inc., 13 FSM Intrm. 159, 161 (App. 2005), aff'd, 14 FSM Intrm. 1, 12 (App. 2006).
Palsis argues that a dismissal under Rule 27(c) requires a motion by the appellee – that the appellee is the sole holder of the right to move for dismissal for an appellant's failure to file a brief. For this he cites Rule 31(c). "If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal." FSM App. R. 31(c). Rule 31(c) does permit an appellee to move to dismiss. It does not require the appellee to do so.
It also does not bar the appellate court from managing its own docket. If we had to wait for an appellee to move to dismiss an appeal, in all likelihood, we would still have a number of decade–old appeals on our docket. This case is an example. No admitted attorney has appeared for the appellee and it is possible that one may never appear. And even if the appellee is represented, no appellee is required to do anything. Kitti Mun. Gov't v. Pohnpei, 11 FSM Intrm. 622, 627 (App. 2003). An appellee's absence does not mean that we must then let the appeal just sit on our docket. Even U.S. courts with an identical Rule 31(c) provision have been known to move for dismissal sua sponte. See, e.g., United States v. Gerrity, 804 F.2d 1330, 1331 (7th Cir. 1986); Bush, 797 F.2d at 537. A court, even an appellate court, has the right to control its own docket. See, e.g., Romano & Mitchell, Chartered v. LaPointe, 807 A.2d 139, 145 (Md. Ct. Spec. App. 2002); Tharp v. Disabled Am. Veterans Dep't, 710 A.2d 378, 385 & n.3 (Md. Ct. Spec. App. 1998); Galland v. Bronson, 546 A.2d 935, 936 (Conn. App. Ct. 1988). We therefore conclude that Rule 31(c) does not prevent an appellate court, in an effort to control its own docket, from also moving to dismiss an appeal for an appellant's failure to timely file a brief.
The court, in this case through a single justice, made its own motion to dismiss as a matter of appellate docket management. A court cannot decide its own motion without first giving the parties notice and an opportunity to be heard because that would violate a litigant's due process rights
guaranteed by the FSM Constitution since notice and an opportunity to be heard is the essence of due process. E.g., Albert v. O'Sonis, 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007); Kama v. Chuuk, 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002). The November 22, 2007 order constituted the motion, and notice to Palsis of the motion, to dismiss. Palsis asserts that he was not given notice that the appeal would be dismissed under Rule 27(c). Although the November 22, 2007 order does not cite that rule, it does give notice that the appeal is subject to possible dismissal and the factual basis (failure to file a brief and thus failure to comply with Rule 31) for the dismissal. Palsis thus had notice of the facts he had to respond to and the possible result if he was unable to show cause.
In Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264, 265 (App. 1998), a single justice held that when an appellant has failed to comply with the appellate rules' timing requirements for filing its opening brief, a single article XI, section 3 justice may, on his own motion, dismiss the appeal after the appellant has been afforded its constitutional due process right to notice and an opportunity to be heard and dismissed that criminal appeal because no brief had been filed and the appellant had been given notice of the court's own motion to dismiss. In Cuipan v. FSM, 10 FSM Intrm. 323, 325–26 (App. 2001), a single justice dismissed a criminal defendant's appeal because no brief had been filed and because the appellant failed, for about six months after entry of the record ready notice, to serve on the appellee a designation of the parts of the record which she intended to include in the appendix and a statement of the issues which she intended to present for review, both of which an appellant must file within 10 days after the date of the clerk's record ready notice.
We conclude that, in Ting Hong and in Cuipan, it was within the single justice's power to move sua sponte, with notice, for, and to dismiss those appeals for the appellants' failure to timely file opening briefs, and that the single justice properly exercised that power. Like any single justice order, an aggrieved party may apply for review of the dismissal order by a full appellate panel, which then must consider it. Pohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 12 (App. 2006). This is what Palsis has now done. Our review of a single justice order is de novo. Western Elec. Co. v. Milgo Electronic Corp., 568 F.2d 1203, 1206 & n.6 (5th Cir. 1978).
2. Merits of Dismissal
Palsis asserts that this appeal ought not have been dismissed. He contends that his appeal should be reinstated because his counsel had spent 1463 hours on it between May 8, 2007 and March 19, 2008; because his counsel was busy, having closed 205 MLSC cases in 2007; because the unending flow of cases or people who come in to seek legal assistance (since it is free of charge) required his counsel's constant attention; because his counsel had no intention to neglect this particular appeal; and that since receiving the March 12, 2008 dismissal, his counsel had several other matters that required his attention.
Palsis asserts that the dismissal in Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264 (App. 1998) (and possibly also Cuipan) is distinguished from this case because Ting Hong was an appeal from a criminal conviction and the appellant there did not respond to the single justice's order to show cause. In Palsis's view, policy considerations would cause the court to want to forestall a criminal defendant's delay of his sentence.
Palsis is correct that dismissal for an attorney's inexcusable neglect in failing to file an opening brief must be handled differently in civil and criminal appeals, but he is wrong about the difference. Appellate courts are much more reluctant to dismiss a criminal appeal for an attorney's inexcusable neglect because a criminal defendant has no other remedy. See, e.g., United States v. Ford, 806 F.2d 769, 770 (7th Cir. 1986) (dismissal denied when no indication that criminal defendant was complicit in or even knew about her attorney's derelictions); Gerrity, 804 F.2d at 1331; Bush, 797 F.2d at 537–
38 (in criminal appeals, courts have supervisory responsibilities not present in other appeals); cf. Engichy v. FSM, 15 FSM Intrm. 546 (App. 2008) (one co–appellant did not file a brief but the court, without comment, did not dismiss his appeal on that ground when it affirmed all the appellants' convictions on the merits). In a civil appeal, when the appeal is dismissed for inexcusable neglect in prosecuting the appeal, "[i]f the party whose appeal is thus dismissed is thereby aggrieved, his remedy will be against his attorney." Gilroy v. Erie Lackawana R.R., 421 F.2d 1321, 1323 (2d Cir. 1970). A criminal appellant has no such remedy.
In Kephas v. Kosrae, 3 FSM Intrm. 248, 253–54 (App. 1987), another case Palsis relies on for not dismissing an appeal for a late–filed brief, the appellate court denied dismissal on the ground that the brief was filed two days late but ruled that dismissal was proper for the three–month delay in serving the appellant's brief on the appellee. In the present case there was a six–month delay in serving the appellee because there was a six–month delay in filing the brief. Palsis also relies on Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224 (App. 1993), for the principle that counsel ought to be sanctioned rather than the appeal be dismissed. But in Nakamura (I), the appellant's brief was timely filed but was short one copy and missing the appendix. Id. at 225–26. In the present appeal, the brief was not timely filed. It was six months late.
Palsis asserts that his appeal was prosecuted in good faith and that the failure to file his opening brief on time was not done in bad faith but through his counsel's inability to prepare and file the brief, as was described above. Nevertheless, Palsis failed to move for enlargements of time before the due date(s) passed.
[T]he burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee. . . . Until such application for extended time is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused.
Gilroy, 421 F.2d at 1323; accord Escobar–Ramos v. Immigration & Naturalization Serv., 927 F.2d 482, 485 (9th Cir. 1991). Not once since the Chief Clerk issued the August 22, 2007 amended briefing schedule, has Palsis sought an enlargement of time until after the deadline has passed and the court issued an order. The December Written Submissions, the Motion for Reconsideration, and the Request for Appellate Panel Review were all tardily filed and asked for enlargements of time for their filing. The brief was filed six months late.
There is a pattern here. Enlargements of time were only sought after filing dates had passed. This was true whether the date was set by the court or by rule, or was even suggested by Palsis as when the brief would be done. Palsis's attorney even stated that he "thought that it was better" to finish the brief first and then ask for an enlargement of time for the court "to accept the brief late." Aff. George at 4 (Dec. 28, 2007). Palsis further explained that, in his counsel's view, "this approach was better than getting multiple orders of enlargement of time and then missing the deadlines again." Motion for Reconsideration at 3 (Apr. 8, 2008). As stated in Gilroy, this practice is considered evidence of a lack of good faith.
The reasons given (once past counsel's stint as criminal defense attorney in Chuuk) were always the busy and urgent nature of legal services work and his counsel's lack of formal legal training. These reasons do not qualify as extraordinary circumstances. According to George's affidavits, these are ordinary, everyday circumstances – the general and usual nature of legal services work.
Examples of the type of situation qualifying as extraordinary circumstances excusing neglect in
seeking enlargements to file briefs are when counsel's son was seriously injured while on sea duty and both his wife and son were hospitalized during the 40–day period for preparing the brief and appendix, Matute v. Procoast Navigation Ltd., 928 F.2d 627, 631 (3d Cir. 1991), and when a law office's roof failed and four inches of rain water were dumped into the office disrupting the files and preventing use of the office, Escobar–Ramos, 927 F.2d at 486. Palsis does not present any extraordinary circumstances such as these that would warrant excusing Palsis's neglect in filing his brief six months late.
Palsis's contentions, reduced to their essentials, are that, because of the nature of legal services work, an MLSC–represented party's appeal should not be dismissed and the court should just patiently wait until MLSC has finished a brief and then moved for an enlargement of time so that the appeal can then be decided on the merits. The policy preference for adjudications on the merits (and the case has already been adjudicated on the merits once – by the trial court) does not automatically override or negate all other considerations or make the procedural rules a nullity. The Rules' timing requirements apply to MLSC clients14 with equal vigor as with any other civil appellant.
We therefore conclude that dismissal of this appeal is proper.
Lastly, although this is dicta, we note that the notice of appeal was filed not within 42 days of the December 27, 2006 decision but within 42 days of the March 22, 2007 denial of Palsis's reconsideration motion, which, if it was a Rule 60(b) motion for relief from judgment, its denial would be the only issue before us on an appeal on the merits. However, nowhere in Palsis's opening brief does he address the issue of the merits of the trial court's denial of the reconsideration motion. This would not bode well for the appeal proceeding on its merits.
Accordingly, the disciplinary sanction imposed by the single justice's March 12, 2008 order on counsel is vacated and that imposed on the Micronesian Legal Services Corporation is reversed. The clerk shall serve a copy of this opinion not only on the parties' counsel but also on the Micronesian Legal Services Corporation head office on Saipan since the Micronesian Legal Services Corporation was sanctioned, and its sanction was reversed herein.
And accordingly, this appeal is dismissed for want of diligent prosecution, namely the failure to timely file an opening brief and to diligently seek enlargements of time to file the brief when it became apparent it would not be done on time.
_______________________________Footnotes:
1 A motion to reconsider made more than ten days after entry of judgment can only be considered a Rule 60(b) motion for relief from judgment. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 588-89 (App. 2008). The trial court should have treated it as such.
2 This is technically eleven days late, because a notice of appeal becomes effective once it is filed with both the state court and the FSM Supreme Court, in either the appellate division or in the trial division in the state where the case is appealed from. FSM App. R. 3(a). But Akinaga v. Heirs of Mike, 15 FSM Intrm. 391, 394-96 (App. 2007) permits this so long as one of the two required filings was timely and the other is filed reasonably soon thereafter.
3 The FSM Telecom fax header says the fax was sent at 8:25 a.m., March 30, 2008, a Sunday.
4 When an FSM court has not previously construed an FSM Appellate Procedure Rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Berman v. College of Micronesia-FSM, 15 FSM Intrm. 622, 624 n.1 (App. 2008); Bualuay v. Rano, 11 FSM Intrm. 139, 146 n.1 (App. 2002); Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).
5 The good cause standard is a broader and more liberal standard than the excusable neglect standard. Ramp v. Ramp, 12 FSM Intrm. 228, 229-30 (Pon. 2003); Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002); FSM Dev. Bank v. Gouland, 9 FSM Intrm. 375, 377-78 (Chk. 2000).
6 In this appeal, MLSC would be the law firm and George the attorney, both potentially subject to sanction for their "inability" to diligently file a timely brief.
7 George does touch upon the point obliquely when he states that he expected "any appropriate disciplinary action" to be either through referral to a disciplinary counsel under the Disciplinary Rules, or by way of a contempt proceeding, or through the court's inherent powers, not by the single justice's reprimand. Motion for Reconsideration at 11-12.
8 The Notes of Advisory Committee on Appellate Rules to the U.S. Federal Rules of Appellate Procedure list as examples of a single judge's power: the ability to stay execution or enforcement of a judgment (Rules 8 and 9), to extend time to transmit record or docket appeal (Rules 11 and 12), substitution (Rule 43), to permit in forma pauperis appeal (Rule 24), to enlarge time (Rule 26(b)), to permit amicus curiae brief (Rule 29), to authorize a deferred appendix (Rule 30(c)), to dispense with appendix (Rule 30(f)), to permit use of copies (Rule 32(a)), to permit additional briefs (Rule 28(c)), to permit lengthy briefs (Rule 28(g)), to postpone oral argument (Rule 34(a)), or to grant additional time therefor (Rule 34(b)). Petitions for permission to appeal, for mandamus or prohibition, or for rehearing are examples listed as not within a single judge's power. The Notes explain that Rule 27(c) "empowers a single judge to act upon virtually all requests for intermediate relief which may be made during the course of an appeal." Attorney disciplinary sanctions are not a form of intermediate relief. They are collateral to the appeal, and, as stated below, the notice ought to be given and the discipline was imposed after the appeal itself had been disposed of.
9 Disciplinary sanctions may also be imposed on an attorney through a complaint referred to the Chief Justice and docketed by the Chief Clerk, FSM Dis. R. 4(b), which then proceeds through the usual process in the Disciplinary Rules.
10 George was permitted to, but did not ask for, oral argument on his motion to reconsider the public reprimand, perhaps because the November order required him to defray the panel's travel costs. Order to Show Cause at 1 (Nov. 22, 2007). Nevertheless, he has prevailed on that issue.
11 The parties may, of course, waive oral argument unless the court directs otherwise. FSM App. R. 34(f).
12 The current U.S. federal version of Rule 34 permits oral argument to be dispensed with when the panel believes the appeal is frivolous, when the dispositive issue has already been decided, or when the facts and arguments are adequately presented in the brief and the decisional process would not be significantly helped by oral argument. Our Rule 34 does not list these exceptions.
13 While the FSM Supreme Court has only recently had enough judges to be able to assemble an appellate panel without the appointment of one or more special judges to fill out the panel, and even now the geographical dispersion of our judges places an extra burden on our appellate division, the U.S. Courts of Appeal always have an appellate panel available.
14 In the past, MLSC had an employee whose responsibilities included supervision of all of its appellate litigation in the FSM. MLSC may need to consider taking steps to assure that its clients' appeals are diligently pursued.
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