FSM SUPREME COURT APPELLATE DIVISION

Cite as Ardos v. FSM Social Sec. Admin., 22 FSM R. 1(App. 2018)

[22 FSM R. 1]

APPEAL CASE NO. P5-2017

ORDER OF DISMISSAL

Decided: August 3, 2018

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Specially Assigned Justice, FSM Supreme Court*

*Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:

        For the Appellant:                 Salomon M. Saimon, Esq.
                                                     Directing Attorney
                                                     Micronesia Legal Services Corporation
                                                     P.O. Box 129
                                                     Kolonia, Pohnpei FM 96941

        For the Appellee:                  Stephen V. Finnen, Esq.
                                                     P.O. Box 1450
                                                     Kolonia, Pohnpei FM 96941

HEADNOTES

Appellate Review – Notice of Appeal

The date of service of the judgment does not affect the time to appeal. The time to appeal starts to run on the date the judgment was entered. Ardos v. FSM Social Sec. Admin., 22 FSM R. 1, 3 (App. 2018).

Appellate Review – Notice of Appeal

In civil cases, an appeal can only be taken by the filing of a notice of appeal within forty-two days after the date of the entry of the judgment or order appealed from. This time period is

[22 FSM R. 2]

jurisdictional and mandatory and cannot be extended without a timely motion to extend filed in the court appealed from, within seventy-two days of the entry of judgment. Ardos v. FSM Social Sec. Admin., 22 FSM R. 1, 3 (App. 2018).

Appellate Review – Notice of Appeal

Lack of notice of the clerk's entry of judgment does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as Appellate Rule 4(a) allows. Ardos v. FSM Social Sec. Admin., 22 FSM R. 1, 3 (App. 2018).

Appellate Review – Decisions Reviewable; Appellate Review – Notice of Appeal

When the date of the entry of judgment appealed from was June 14, 2017, and counsel neglected to file a notice of appeal within the forty-two day period within which a party may file a notice of appeal, and no extension of time was sought or granted, the appellate court lacks jurisdiction to consider the appeal's merits. Ardos v. FSM Social Sec. Admin.,22 FSM R. 1, 3 (App. 2018).

Appellate Review – Dismissal

When the court lacks jurisdiction to hear an appeal, it will be dismissed. Ardos v. FSM Social Sec. Admin., 22 FSM R. 1, 3 (App. 2018).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

This is before us on the appellee's motion to dismiss this appeal for lack of jurisdiction. The motion is granted. Our reasons follow.

I.

On March 14, 2017, the trial division, in Civil Action No. 2015-016, granted summary judgment in the favor of the defendant, Federated States of Micronesia Social Security Administration. Three months later, on June 14, 2017, the clerk entered the judgment. Counsel for plaintiff Tyeondre Justice Ardos through next friend, Arlynne Ardos, received actual notice, by e-mail, of the judgment on the same day. The judgment was served on plaintiff's counsel by mail on June 19, 2017.¹ On July 28, 2017, forty-four days after the entry of judgment, Ardos filed a notice of appeal. No extension of the time to appeal was sought from the trial division.

On October 20, 2017, the Social Security Administration moved to dismiss this appeal because it was untimely filed. Ardos filed an opposition on November 29, 2017. The parties then, on December 6, 2017, jointly stipulated and moved to stay the appeal until a similar appeal, Eliam v. FSM Social Sec. Admin., App. No. P10-2015 (which had already been briefed and argued) was decided. A single justice order granted the stay. The Eliam decision was issued January 29, 2018. Eliam v. FSM Social Sec. Admin., 21 FSM R. 412 (App. 2018).

On June 12, 2018, a single justice order directed the parties to signal their intentions in this

[22 FSM R. 3]

matter. On June 28, 2018, Ardos moved the court to lift the stay and decide the appellee's pending motion to dismiss, and the Social Security Administration filed its reply in support of its motion to dismiss. Accordingly, we hereby lift the stay and turn to the pending motion.

II.

Ardos contends that the notice of appeal was timely because, although the judgment was entered on June 14, 2017, it was, according to plaintiff's counsel, served by mail on June 19, 2017, and the notice of appeal was thus timely filed forty-one days after the date of the judgment's service. Celestine further argues that, because, under Civil Procedure Rule 77(d), there are only permissible methods of service of court orders – by hand delivery or by mail, it is this June 19th date that we court must use to start counting the forty-two day appeal period.

Ardos is in error. The date of service does not affect the time to appeal. The time to appeal starts to run on the date the judgment is entered. The Rules clearly state that, in civil cases, an appeal can only be taken "by the filing of a notice of appeal as provided in [Appellate] Rule 3 within forty-two (42) days after the date of the entry of the judgment or order appealed from." FSM App. R. 4(a)(1).

This forty-two day time period is jurisdictional and mandatory and cannot be extended without a timely motion to extend filed, under Appellate Rule 4(a)(5) in the court appealed from, within seventy-two days of the entry of judgment. Abrams v. FSM Dev. Bank, 20 FSM R. 340, 345 (App. 2016); Heirs of Weilbacher v. Heirs of Luke, 19 FSM R. 178, 180 (App. 2013); Ruben v. Chuuk, 18 FSM R. 604, 607-08 (App. 2013); Jonah v. FSM Dev. Bank, 17 FSM R. 506, 508 (App. 2011); Goya v. Ramp, 13 FSM R. 100, 104-05 (App. 2005). Moreover, Civil Procedure Rule 77 specifically warns litigants and counsel that: "Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Rules of Appellate Procedure." FSM Civ. R. 77(d).

The date of the entry of judgment appealed from was June 14, 2017. Even though service of the judgment was not as prompt as it could have been, counsel was still served with plenty of time left in the forty-two day period within which a party may file a notice of appeal. Counsel neglected to do so, and no extension of time was sought or granted. We therefore lack jurisdiction to consider this appeal's merits.

Back when the forty-two day time period to appeal a civil case was first set, there was no e-mail, and fax machines were generally unknown, and the mail did not always go by air. Although the evidence is merely anecdotal, we are of the view that the generous forty-two day appeal period was originally established to give aggrieved parties extra time beyond the usual thirty days to decide whether to perfect an appeal because it was expected that some of that time would be taken by the transmission of papers by mail. We also note that, in this case, there were a further three months after the trial court's decision and before the clerk's entry of judgment, during which Ardos could consider whether an appeal would be desirable or advisable. We cannot fathom why a dissatisfied litigant, who had all that time to decide whether to pursue an appeal, would wait so long to file the notice of appeal.

III.

Accordingly, since Ardos failed to appeal within the time allowed, we lack jurisdiction to hear this appeal. It is therefore dismissed.

Footnotes:

¹ There is an indication in the record that the clerk actually served – mailed – the judgment on June 16, 2017, not June 19. As explained below, the date of service is not relevant to whether the notice of appeal was timely filed.