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HEADNOTES

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COURT'S OPINION

PER CURIAM:

On August 13, 2012, the appellants, Mary Berman and Kadalino Damarlane, filed their Motion for Injunction, and, on August 22, 2012, the appellees, Pohnpei state government and the Pohnpei Transportation Authority ("PTA"), filed their Opposition to Motion for Injunction. The appellants' motion is denied without oral argument.¹ Our reasons follow.

I.

Relying on Appellate Rule 8(a), Berman and Damarlane seek an injunction that would order Pohnpei to close access to an abandoned causeway or berm near their residence; compel Pohnpei to obtain an earthmoving permit to remove the berm; compel Pohnpei to remove the latrine that others have currently located on the berm; compel Pohnpei to ban public use of the berm and to remove all electrical lines running out on the berm; and to remand the matter for further proceedings. This relief is virtually the same as that the movants seek in their appeal on the merits.

Pohnpei and PTA oppose the motion because the activity sought to be enjoined is caused by non-state actors – non-parties not subject to their control or direction – for whom they are not liable and because nothing has changed since the trial court denied the movants' earlier requests for preliminary injunctions.

II.

Under Appellate Rule 8(a), we may grant an injunction during the pendency of an appeal. An injunction during the pendency of an appeal is a preliminary injunction. Rule 8(a) provides that:

[18 FSM R. 421]

FSM App. R. 8(a). The trial court denied an application for an injunction twice. The movants, in their motion, state the reasons they believe the trial court used to deny their applications. The movants make reference to affidavits filed earlier in the trial division that might be found in various places in the trial court record, but none are attached to their motion. Also not filed with the motion are the other parts of the record that they deem relevant to their motion. The movants have thus failed to comply with Rule 8(a)'s technical requirements.

III.

"Litigants should not lightly seek injunctions pending appeal." Classic Components Supply, Inc. v. Mitsubishi Elecs. Am., Inc., 841 F.2d 163, 165 (7th Cir. 1988).² An appellate court, "[i]n ruling on a request for an injunction pending appeal, must engage in the same inquiry as when it reviews the grant or denial of a preliminary injunction," Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982), and in considering whether to grant a preliminary injunction, courts will consider four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest, FSM v. GMP Hawaii, Inc., 17 FSM Intrm. 555, 593 (Pon. 2011). Generally, the purpose of an injunction pending appeal is to maintain the status quo while the appeal is heard and decided. Walker, 678 F.2d at 70.

But that is not what is sought here. Berman and Damarlane do not seek to maintain the status quo pending appeal. They seek to substantially alter or even reverse the status quo by obtaining a mandatory injunction against Pohnpei requiring it to take certain actions to prevent the activities of persons not parties to this case. Courts generally enter prohibitory injunctions – an injunction forbidding some act. Udot Municipality v. FSM, 10 FSM Intrm. 354, 360 (Chk. 2001). Courts rarely grant mandatory injunctions because courts are ill-equipped to involve themselves in day-to-day administration and because of the difficulty of enforcing such injunctions. Id. On that ground alone the movants' likelihood of success is poor. Moreover, since a government's inaction or indifference is not a constitutional violation, Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 (App. 2000), its inaction would usually not warrant an injunction. Success on the merits is thus unlikely.

"One who seeks an injunction pending appeal must show irreparable injury." Classic Components Supply, 841 F.2d at 164. The movants characterize their harm as irreparable because, in general, trespass and nuisance on land is considered irreparable harm. But what the movants seek to enjoin is not trespass and nuisance on their land but on a causeway or berm which is not their land.

[18 FSM R. 422]

When the trial court denied their initial motion for injunction on January 7, 2009, they did not appeal that denial as they could have under Appellate Rule 4(a)(1)(B). The movants have not shown irreparable harm or injury.

The balance-of-injuries factor does not weigh in the movants' favor either. The movants ask that Pohnpei be ordered to take certain actions against non-parties at an unknown cost and with an unknown exposure by Pohnpei to potential liability to those non-parties while leaving the movants free of any expense or liability.

Regardless of where the public interest lies, that factor cannot overcome the other three and cause us to issue the preliminary injunction sought.

Furthermore, given the mandatory nature of the injunction sought, we would require a very substantial cash bond in order to grant a preliminary injunction along the lines that the movants seek. FSM App. R. 8(b). None has been offered.

IV.

Accordingly, for all the foregoing reasons, the motion for an injunction is denied. This appeal will proceed on its merits.

Footnotes:

¹ We may decide motions without oral argument. Jonah v. FSM Dev. Bank, 17 FSM Intrm. 506, 507 (App. 2011); Kosrae v. Jim, 17 FSM Intrm. 97, 98 (App. 2010); Smith v. Nimea, 16 FSM Intrm. 346, 348 (App. 2009); Palsis v. Tafunsak Mun. Gov't, 16 FSM Intrm. 116, 127 (App. 2008); Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 111 (App. 2008); Kosrae v. Langu, 16 FSM Intrm. 83, 86 (App. 2008); Christian v. Urusemal, 14 FSM Intrm. 291, 293 (App. 2006).

² Since we have not previously construed Appellate Rule 8(a)'s provisions about the issuance of injunctions, we may consult U.S. authority for guidance because our Rule 8(a) is drawn from a similar U.S. rule. Kosrae v. Langu, 16 FSM Intrm. 83, 87 n.1 (App. 2008); Berman v. College of Micronesia-FSM, 15 FSM Intrm. 622, 624 n.1 (App. 2008); Santos v. Bank of Hawaii, 9 FSM Intrm. 306, 308 n.1 (App. 2000); Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).