THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE TRIAL DIVISION
Cite as Mark v. Chuuk ,
8 FSM Intrm. 582 (Chk. S. Ct. Tr. 1998)

[8 FSM Intrm. 582]

BEN MARK,
Plaintiff,

vs.

CHUUK STATE GOVERNMENT,
Defendant.

CSSC CIVIL ACTION NO. 124-98

JUDGMENT

Soukichi Fritz
Chief Justice

Hearing:  September 1, 1998
Decided:  September 3, 1998

APPEARANCE:
For the Plaintiff:     Ben K. Enlet, trial counselor
                                P.O. Box 123
                                Weno, Chuuk FM 96942

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HEADNOTES
Administrative Law ) Judicial Review
     When a plaintiff seeks to establish a claim in a court action that is identical to the claim he already established in administrative proceedings, a court judgment could do no more, and payment of the claim can only be lawfully done by legislative appropriation.  Mark v. Chuuk, 8 FSM Intrm. 582, 583 (Chk. S. Ct. Tr. 1998).

Administrative Law
     In some circumstances, two remedies may be available to the same party for the enforcement of the same right, one in the judicial and the other in the administrative forum.  Mark v. Chuuk, 8 FSM Intrm. 582, 583 (Chk. S. Ct. Tr. 1998).
 
Administrative Law
     In administrative law in regard to controversies in which the same parties and the same subject matter are involved, when two or more tribunals have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the proceeding might have been

[8 FSM Intrm. 583]

initiated.  Mark v. Chuuk, 8 FSM Intrm. 582, 583-84 (Chk. S. Ct. Tr. 1998).

Administrative Law ) Judicial Review
     The Chuuk State Supreme Court trial division has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law.  The Judiciary Act of 1990, Chk. 190-08, 18, provides that a person adversely affected or aggrieved by an agency action, is entitled to judicial review thereof.  Mark v. Chuuk, 8 FSM Intrm. 582, 584 (Chk. S. Ct. Tr. 1998).

Administrative Law ) Judicial Review
     A person who has not been adversely affected or aggrieved by administrative action cannot seek court review when his rights were fully protected by his successful administrative claim.  His remedy is not with the judiciary, but with the Legislature for an appropriation to pay his claim.  Mark v. Chuuk, 8 FSM Intrm. 582, 584 (Chk. S. Ct. Tr. 1998).

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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This case comes before the Court for judgment after notice and hearing held on September 1, 1998.  The Plaintiff was represented by Ben K. Enlet.  No appearance was made on behalf of the Defendant, Chuuk State Government.

     The Complaint alleges that State employees were negligent in the construction of a public road causing damage to Plaintiff's taro patch and water well.  The Plaintiff offered into evidence, various documentation tending to show that agencies of the Defendant had made assessments of the damage to Plaintiff's property and concluded that damages totaling $35,700.00 had in fact been caused by the negligence of Defendant's agents.

     The evidence further shows that Plaintiff's claim for $35,700.00 was approved and presented for payment to the proper agents of Defendant, but Plaintiff was advised that no appropriation had been made by the Legislature for payment of the claim.
 
     This is a case of first impression in that the claim which Plaintiff seeks to establish in the case before the Court, is identical to that which has already been established through administrative proceedings before the Chuuk State Department of Commerce and Industry, Division of Land Management and the Department of Agriculture.  These Administrative Agencies verified the Plaintiff's claim and the amount thereof.  A Judgment of this Court could do no more.

     The payment of the claim established by Administrative Procedure or by Court Judgment can only be lawfully done by an appropriation by the legislature of the funds for such payment.

     It is true that Plaintiff may have had a choice of where to submit his claim for damages.  In 2 Am. Jur. 2d Administrative Law 784 (1962) it is said:  "In some circumstances, two remedies may be available to the same party for the enforcement of the same right, one in the judicial and the other in the administrative forum . . . ."

     And in 2 Am. Jur . 2d Administrative Law 786 (1962) the rule states that:  "In regard to controversies in which the same parties and the same subject matter are involved, when two or more tribunals have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion

[8 FSM Intrm. 584]

of all other tribunals in which the proceeding might have been initiated."

     It should be noted that this case is not an appeal, to the contrary, the Plaintiff received a favorable decision from the administrative agencies and in no way wants to change that decision.  It should be further noted that this court would, in a proper case, have jurisdiction over an appeal from this administrative action.

     This Court should not and will not adjudicate issues that have already been determined by administrative agencies except in the manner provided by law. We are bound by Article VII, Section 3(c), Constitution of Chuuk State, which states as follows:  "The trial division of the State Supreme Court has jurisdiction to review the actions of any state administrative agency, board, or commission, as may be provided by law."

     In this case, it further appears that Plaintiff does not even have a right of appeal in view of 18 of the Judiciary Act of 1990, which provides in part as follows:  "A person adversely affected or aggrieved by an agency action, is entitled to judicial review thereof by the State Supreme Court."  Chk. S.L. No. 190-08, 18 (emphasis added).

     The plaintiff has not been adversely affected or aggrieved by administrative action.  His rights have been fully protected.  His remedy is not now with the Judiciary, but with the Legislature for an appropriation to pay his claim.  Therefore, the Plaintiff's complaint is due to be dismissed.

It is so ordered.
 
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