POHNPEI SUPREME COURT TRIAL DIVISION
Cite as Amor v. Pohnpei State,
3 FSM Intrm. 28(Pon. S. Ct. Tr. 1987)

[3 FSM Intrm. 28]

ANTONIO AMOR,
Plaintiff,

vs.

POHNPEI STATE GOVERNMENT,
Defendant.

           PCA NO. 146-86  
  RULING ON DEFENDANT POHNPEI
GOVERNMENT'S MOTION TO DISMISS

OPINION
 
Before Edwel H. Santos
Chief Justice
Pohnpei Supreme Court
March 10, 1987

APPEARANCES:
          For the Plaintiff:          Ander Norman
                                               Micronesian Legal Services Corporation
                                               Pohnpei, FSM 96941

          For the Defendant:     Joses R. Gallen
                                               Assistant State Attorney
                                               State Attorney's Office
                                               Pohnpei, FSM 96941

*       *       *      *
[2 FSM Intrm. 28]

HEADNOTES
Administrative Law - Judicial Review
     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).

Administrative law - Judicial Review
     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).

[3 FSM Intrm. 29]

Administrative Law - Judicial Review
     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).

*       *       *       *

COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:
     On August 26, 1986, plaintiff petitioned the Court for judicial review of the Pohnpei Hospital Authority's action of January, 24, 1986 dismissing him from his government employment as act X-Ray Technician I, and the Personnel Review Board's decision of April 28, 1986 confirming the Pohnpei Hospital's action in dismissing the plaintiff.  He alleges that his dismissal deprived him of his property rights without legal due process and is in violation of article 4, section 4 of the Pohnpei Constitution.

     Respondent Pohnpei Government brought the motion for dismissal asserting that:

     (1)  there is no statutory provision authorizing judicial review of an administrative action;

     (2)     plaintiff's petition was not timely filed as it was filed 119 days [April 28, 1986 - August 26, 1986] after the Personnel Review Board confirmed the Pohnpei Hospital Management's decision to dismiss; hence, the Court has no jurisdiction.

     Oral argument was presented on February 6, 1986.  Upon consideration of the points and authorities submitted and oral argument of counsel, I think the motion should be denied.

REASONING
I
Presumption of Reviewability
     Unless restricted by law, we must presume that this Court has jurisdiction to judicially review final administrative or agency actions.  In other words, there is reviewability except where:  (1) statutes preclude judicial review; or, (2) administrative or agency action is committed to administrative/agency discretion by law.  See the following U.S. cases, for example, discussing this presumption of judicial reviewability:  Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S. Ct. 2133, 90 L. Ed. 2d 623 (1986); Abbott Labs. v. Gardner, 387 U.S. 136, 140-41, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967).

[3 FSM Intrm. 30]

     The Court frequently interprets language that on its face seems to preclude judicial review not to do so.  This means that the courts will interpret statutes precluding judicial review of administrative actions narrowly.  Only upon a showing of clear and convincing evidence of a contrary legislative intent do they restrict access to judicial review of administrative actions.  See cases cited supra.

     Legislative silence about availability of review is normally not construed to show an intent to preclude review.  Therefore, legislative silence cannot overcome the presumption of reviewability of administrative action.  Kingsbrook Jewish Med. Ctr. v. Richardson, 486 F.2d 663, 668 (2d Cir. 1973) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 140-41, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681, 687 (1967)).

     Generally, however, the lawful exercise of agency discretion is not reviewable. But in the absence of a statute precluding review wherever an agency exceeds the bounds of its discretion, or balances factors unreasonably in a given case, a court should stand ready to intervene.  Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S. Ct. 7521, 2 L. Ed. 2d 788 (1958).  Otherwise, the enforcement of the fundamental rights of our citizens, as enumerated in Article 4 of the Constitution of Pohnpei, cannot be assured.

II
THE POHNPEI STATUTE
     The State Public Service System Act of 1981, S.L. 2L-57-81, the applicable statute in this case, provides in Section 27 for disciplinary action against employees in the State Public Service.  Subsections (1) and (2) empower a management official to either suspend, dismiss or demote an employee for specified causes.  Part 17 of the Public Service System Regulations provides for the procedures to be followed by a management official in the event of an adverse action against an employee.  Appeals from such suspensions, dismissals or demotions go to a Personnel Review Board designated and constituted in accordance with the provisions of Subsection 3 of Section 27, et. seq.  Details of the appeal procedure are contained in Part 18 of the Public Service System Regulations.  Section 27, Subsection (3)(e) of 2L-57-81 states that "the decision of the Board shall be final," Reading of this subsection leads one to believe that the decision of the Personnel Review Board is final and is not subject to review by a court of competent jurisdiction.  Subsection (3)(e) should not be read in isolation from the other provisions of the statute.  When read in conjunction with subsection (3)(f) it becomes clear that the Legislature did not intend that subsection (3)(e) should cut off the rights of review of decisions of the Personnel Review Board in view of their finality.

Subsection (3)(f) of Section 27 provides as follows:

Disciplinary action taken in conformance with this Section shall in no case be subject to review in the courts until the administrative remedies prescribed herein have been exhausted.  (Emphasis added).

[3 FSM Intrm. 31]

     In construing subsection (3)(f), I conclude that the power and jurisdiction of this Court to review any decision of the Personnel Review Board is riot precluded by the pertinent statute.  State Law 2L-57-81 assures such review after an aggrieved employee within the public service has exhausted his domestic remedies, namely the administrative remedies prescribed in Section 27 thereof.

     The Personnel Review Board is the highest level in the administrative machinery available to an aggrieved employee of the Executive Branch for relief. It is at that level that an employee of the Executive Branch exhausts
his administrative remedies and his right to have recourse to the Court ripens.

     There is plenty of authority supporting this conclusion.  Article 10, Section 4(2) and Section 20 of the Pohnpei Judiciary Act (2L-160-82) confer original jurisdiction over all criminal and civil cases within the jurisdiction of Pohnpei State to the Pohnpei Supreme Court.  The Pohnpei Supreme Court's power to review administrative actions is prescribed particularly in the following sections of the Judiciary Act of 1982.

Section 51.  Pohnpei Supreme Court Review of Administrative Actions.

(a)     The Pohnpei Supreme Court shall have the authority to review all actions of any agency of the Government of this State in accordance with this Act or the provisions of any other statute or regulation that provides for a broader scope of judicial review.

(b)     For the purposes of this Act, any agency means each authority of the Government of this   State, but does not include the State Legislature or the courts of this State.

Section 52.  Right of Review.

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof by the Pohnpei Supreme Court.  Such action in the Pohnpei Supreme Court may seek relief in addition to or other than money damages and may state a claim that an agency   or an officer or employer thereof acted unlawfully,  or failed to act lawfully in an official capacity or under color of legal authority. The State Government may be named as a defendant in any such action, and a judgment or decree may be entered against the State Government.  Any mandatory or injunctive decree shall specify the officer or officers (by name or by title), and their successors in office, personally responsible for compliance.

[3 FSM Intrm. 32]

Nothing herein affects the power or duty of the court to dismiss any action or deny relief on any appropriate legal or equitable ground.

       Section 53.  Action Reviewable.

Agency action otherwise made reviewable by statute  and any final agency action for which there is no other adequate remedy in a court are subject to judicial review.  Agency action is also subject to review in civil or criminal proceedings for judicial enforcement.  A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.  Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to a superior agency authority.

     When an administrative agency action is being reviewed by the Court,  the agency may postpone the effective date of its action as prescribed in Section 54:

Section 54.  Relief Pending Review.

When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.

III
LATE FILING
     There is no provision in the Public Service System Act nor in the  Public Service System Regulation which prescribes the time for petitioning the Court for review.  This Court has not promulgated a rule prescribing the time within which an aggrieved employee of an agency may file his petition to this

[3 FSM Intrm. 33]

Court for review of the agency's action.  In view of the above, we must next resort to the statute of limitations of action, 6 TTC Chapter 7. This action falls within the 6-year limitation, 6 TTC 305.  Hence, I rule that the petition is timely filed.

     Accordingly, respondent State's motion to dismiss is Denied.

*        *        *       *

     This Court shall review the constitutionality of the final action of  the Government of Pohnpei in dismissing plaintiff from his employment as an X-Ray Technician at the Pohnpei Hospital.  A notice of such review shall follow.

     It is so ordered.

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