THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Udot Municipality v. FSM ,
9 FSM Intrm. 560 (Chuuk 2000)

[9 FSM Intrm. 560]

UDOT MUNICIPALITY,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA,
DEPARTMENT OF FINANCE AND ADMINISTRATION
FOR THE FEDERATED STATES OF MICRONESIA,
MAYOR LIWIS OS in his capacity as MAYOR OF
POLLE MUNICIPALITY, TOLENSOM AUTHORITY,
JAMES FRITZ, in his capacity as EXECUTIVE
DIRECTOR OF CHUUK STATE COMMITTEE ON
IMPROVEMENT PROJECTS,
Defendants.


CIVIL CASE NO. 2000-1018

ORDER DENYING MOTION

Richard H. Benson
Associate Justice

Argued:  September 20, 2000
Decided:  October 16, 2000

APPEARANCES:
For the Plaintiff:            Stephen V. Finnen, Esq.
                                       Law Offices of Saimon & Associates
                                       P.O. Box 1450
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     R. Anthony Welch, Esq.
(FSM & Dep't of           Assistant Attorney General
           Finance)             FSM Department of Justice
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

For the Defendants:     Wesley Simina, Esq.
          (Os & Fritz)         P.O. Box 94
                                       Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Civil Procedure ) Dismissal
     A motion to dismiss for lack of subject matter jurisdiction is properly considered under Civil

[9 FSM Intrm. 561]

Procedure Rule 12(h)(3) and may be raised at any time.  The motion is treated as a suggestion that the court lacks subject matter jurisdiction.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 562 (Chk. 2000).

Civil Procedure ) Dismissal; Jurisdiction
     When the court's jurisdiction is placed at issue, it is the plaintiff's burden to show that the Supreme Court does have jurisdiction, and that a colorable claim exists.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 562 (Chk. 2000).

Constitutional Law ) Case or Dispute ) Standing
     A municipality that is one of eight eligible to receive development funds has standing to raise whether it has been fairly allowed to apply for some of them.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 562 (Chk. 2000).

Constitutional Law ) Case or Dispute ) Mootness
     When it appears that the problem will arise again, and would otherwise be incapable of review, the court has jurisdiction because the most notable exception to the mootness doctrine is a situation in which an otherwise moot case may have a continuing effect on future events, including future litigation.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 562 (Chk. 2000).

Constitutional Law ) Case or Dispute ) Ripeness
     An objection based on lack of ripeness in a case concerning appropriated funds that have not yet been distributed cannot prevail when the manner of the funds' distribution appears (at this stage of the proceedings) to violate the Constitution.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 562-63 (Chk. 2000).

Constitutional Law ) Case or Dispute
     A case is not non-justiciable, one not proper for judicial review, when the plaintiff only seeks a fair chance to apply, through a constitutional procedure, for funds for which it is eligible.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 563 (Chk. 2000).

Administrative Law ) Judicial Review; Civil Procedure ) Dismissal
     A court will not dismiss a case for failure to exhaust administrative remedies when to do so would require the plaintiff to pursue relief through an unconstitutional procedure.  Udot Municipality v. FSM, 9 FSM Intrm. 560, 563 (Chk. 2000).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before the court for oral argument on 20 September 2000 on the Motion to Dismiss filed 31 August 2000 by all defendants except the FSM.  All parties appeared by counsel.

     The FSM and its Department of Finance and Administration made certain position statements during the September 20 hearing and were given an opportunity to file a memorandum.  Their Response to Issues Raised at Hearing was filed October 10, 2000.  The other parties did not respond.  The Response has been considered and it does not alter the decision on the Motion to Dismiss filed by the other defendants.  Insofar as the Response could be considered to be a motion to dismiss the FSM defendants, the court does not so consider it.

[9 FSM Intrm. 562]

     The moving defendants raise several issues of the court's jurisdiction to hear this case (standing, mootness, ripeness, justiciability, and failure to exhaust administrative remedies).  The motion was filed after these defendants had answered, and so the motion would seem to come within Rule 12(c) of the FSM Rules of Civil Procedure.  But if that were the case, the proper motion would be for judgment on the pleadings.  However this approach is unsuited to the present case since matters outside the pleadings have been considered by the court because it heard the motion for a preliminary injunction on June 21, 2000.  The plaintiff objects to considering it as a motion for summary judgment as called for in Rule 12(c) on the ground that discovery is incomplete.

     The motion is properly considered under Rule 12(h)(3).  That rule states subject matter jurisdiction to be raised at any time.  Hartman v. FSM, 6 FSM Intrm. 293, 296 (App. 1993).  The motion raises subject matter jurisdiction. Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343, 354 (1975).  The hearing proceeded under this approach.  The testimony and proceedings as to the preliminary injunction are considered.  Plaintiff's and Mr. Fritz's affidavits are not.  The motion is thus treated as a "suggestion" of the plaintiff that the court lacks jurisdiction.  Frederick v. Thomas, 408 F. Supp. 832, 834 (E.D. Pa. 1976) (motion to dismiss for failure to state a cause of action, mootness and abstention considered under Rule 12(h)(2-3)).

     When the court's jurisdiction is placed at issue, it is the plaintiff's burden to show that the Supreme Court does have jurisdiction, Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 57, 58 (Truk 1989), rev'd on other grounds, 4 FSM Intrm. 367 (App. 1990); Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320, 1321 (3d Cir. 1972), and that a colorable claim exists.  McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Cir. 1983).

     The posture of the case is unusual in that the ground for issuing the preliminary injunction, the unconstitutionality of Public Law No. 11-27, as applied, first appeared from the testimony and evidence before the court at the preliminary injunction hearing.  The motion to dismiss does not consider the effect of that evidence.

     In oral argument the plaintiff represented that he is not seeking funding, but a declaration of his rights under the appropriation public laws at issue.  He also represented that in seeking an accounting from the moving defendants, it is sufficient if he were provided with copies of the reports the allottees are required by law to provide to Congress and the Secretary of Finance and Administration.

     The Preliminary Injunction sets out the procedures under which the funds appropriated by Public Law No. 11-27 were distributed in Faichuk.  I found that procedure unconstitutional for purposes of reaching a decision on that motion. [Udot Municipality v. FSM, 9 FSM Intrm. 418 (Chk. 2000).]  Concerning standing, I cannot say that one municipality out of eight eligible to receive development funds does not have standing to raise whether it has been fairly allowed to apply for some of them.  The moving defendants also question Udot's standing to raise Public Laws No. 10-69 and 11-29, because the allottees for those funds were the mayor of one municipality (Polle) and the Authority of a second (Tolensom).  The plaintiff contends however that those appropriations were for "Faichuk" not those two municipalities.

     Concerning mootness, the moving defendants contend that since the funds appropriated in Public Laws No. 10-69, 10-120, 10-126 and 11-29 have be exhausted, the matter is moot.  Because it appears that the problem will arise again, and would otherwise be incapable of review, the court has jurisdiction.FSM v. Louis, 9 FSM Intrm. 474, 483 (App. 2000) ("The most notable exception [to the mootness doctrine] for this appeal . . . is a situation in which an otherwise moot case may have a continuing effect on future events, including future litigation.")

[9 FSM Intrm. 563]

     The moving defendants contend that the court does not have jurisdiction as to Public Law No. 11-27 because the funds have not be distributed.  The objection to ripeness cannot prevail when the manner of distribution appears (at this stage of the proceedings) to violate the Constitution.

     The moving defendants' assertion that the case is non-justiciable, one not proper for judicial review, assumes that the court is asked to decide how much should be allocated and disbursed and to whom and where and when.  This misstates the relief sought by the plaintiff.  The plaintiff only seeks a fair chance to apply, through a constitutional procedure, for funds for which it is eligible.

     The last ground questioning the court's jurisdiction is the contention that administrative remedies have not been exhausted.  What occurred, as to Public Law No. 11-27, when the plaintiff asked for a share, the allottee told him to ask the senator.  The court does not require the plaintiff to pursue relief through an unconstitutional procedure.  The two other allottees failed to respond to the plaintiff's similar request made of them.  The court concludes that the plaintiff has shown a colorable claim for this court's jurisdiction.  The motion to dismiss is accordingly denied.
                                                                                                                                                                                                                                                                                                           
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