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THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA
Cite as Suldan v. FSM ,
1 FSM Intrm. 201 (Ponape 1982)

TRIAL DIVISION-STATE OF PONAPE

[1 FSM Intrm. 201]

VENANCIO SULDAN,
Plaintiff,
 
vs.

FEDERATED STATES OF
MICRONESIA,
Defendant.

CIVIL ACTION NO. 1982-007

OPINION
Before Edward C. King
Chief Justice
September 20, 1982
Ponape, Caroline Islands 96941

APPEARANCES:
     For the Plaintiff:         Robert D. Ciandella
                                         Attorney at Law
                                         MLSC
                                         Ponape, Caroline Islands 96941

     For the Defendant:    R. Barrie Michelsen
                                         Chief Litigator
                                         Office of the Attorney General
                                         Federated States of Micronesia
                                         Ponape, Caroline Islands 96941

[1 FSM Intrm. 202]

     Venancio Suldan, terminated from his position as a National Government police officer, asserts that the procedures set forth in the National Public Service System Act, Public Law 1-47 (1st Cong., 1st Spec. Sess.) for appeals from terminations of government employees fail to meet the requirements of the Constitution of the Federated States of Micronesia.
 
     It is not now appropriate to consider that contention because the administrative steps essential for review by this Court of employment terminations have not yet been completed.  Therefore the case is remanded to the President, as the highest management official in the Executive Branch, for his decision pursuant to Section 25(3)(e) of the Act [52 F.S.M.C. 156].     

[1 FSM Intrm. 203]
 
Factual Background
     On June 26, 1981, Officer Suldan was notified of his dismissal from employment as a National Government Police Officer.  The termination was based principally upon Officer Suldan's absences from his post at times when he was assigned for duty.
 
     Mr. Suldan appealed.  A hearing was held before an ad  hoc committee convened pursuant to Section 25(3)(b) of Public Law 1-47 [52 F.S.M.C. 154]. That committee issued a report finding that Officer Suldan's actions warranted termination, but also concluded that, since Suldan was given annual leave or sick leave on the dates of his absences, management had forgiven his transgressions. Thus, the committee recommended Mr. Suldan's reinstatement "with full compensation and benefits as though he had never left his Public Employment on April 21, 1981."  This decision was transmitted to President Tosiwo Nakayama on November 3, 1981, with the notation that "the file, transcripts and tapes of this hearing" would be "available in the Personnel Office."
 
     On January 7, 1982, President Nakayama sent the following letter to Mr. Quirino I. Mendiola, Chairman of the ad hoc committee.

By this letter I am informing you that I have disapproved your recommendation regarding Mr. Suldan's appeal.  Although this action may appear that I have upheld the action taken by management, it is not my conclusion that such is the case.  Rather, I have decided against your recommendation in order that this case may be brought before our court for its appropriate handling.

[1 FSM Intrm. 204]

The management as you know is the legal arm of my office which advises me on legal matters including the Suldan case.  Since there is conflict of interest on the part of management in advising me on this particular case, I have decided to disapprove your  recommendation (not on its merit but) so that the case may be appealed to the FSM court.

     Copies were sent to the interested parties.  This was the President's only and final action on the case.

Analysis
     It would be premature for the Court to review this personnel dispute.  The President's notice while disapproving the ad hoc committee's action disavows any intention to uphold the action taken by management.  Further, the letter states that he has not disapproved the committee's recommendation on its merits.  This disapproval then, was not a decision on the merits but a device to move the case to this Court for decision.
 
     In common sense terms, the President's actions were  quite reasonable.  As he freely admits, a conflict of sorts' existed.  The President's legal advisors, the Office of the Attorney General, were "management" advocating the dismissal of an officer formerly under their charge.  Thus, it seemed quite rational to ask another decisionmaker, this Court, to render the decision in this particular case.
 
     Unfortunately, important policy considerations and the Act itself prevent this Court from accommodating the President's reasonable expectation and require that this matter be remanded to the President for decision.     

[1 FSM Intrm. 205]

     There are substantial reasons why this Court should not normally review or consider personnel actions before the administrative procedures delineated in the Act have been completed.
 
     Most obvious is the fact that if the highest management official decides in favor of the employee there may be no need for this Court to act at all.  In this case, that consideration is compounded by the fact that the plaintiff's claim is grounded upon constitutional considerations.  The lone Appellate Division decision of this Court points out that constitutional issues should not be decided if the statute in question may be interpreted in such a way as clearly to conform with constitutional requirements. In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982).  Similarly, the Court should not decide a constitutional issue when there remains a possibility that an administrative decision will obviate the need for a court decision.
 
     These considerations are not altered by the fact that the highest management official has expressed a wish that the Court should make the decision.  When Congress haspassed a statute, Executive Branch and Judiciary members may not simply decide among themselves to reassign the decisionmaking responsibilities set forth in the statute.  The National Public Service System Act requires the "highest management official responsible for the agency in which the appellant

[1 FSM Intrm. 206]

is or was employed" to make a "decision" which shall be "final," subject only to limited review by this Court.
 
     Regulations drafted by the Personnel Officer and promulgated by the President under Section 26 of the Act [52 F.S.M.C. 124] state that the Section 25(3)(e) reference to the "highest management official" means the President, for terminations of Executive Branch personnel.  See Public Service System Regulations, 18.14 b. (Dec. 1980).
 
     Most important, the Act plainly manifests a Congressional intention that this Court should withhold action until the administrative steps have been completed.
 
Disciplinary actions 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; ...
 
52 F.S.M.C. 157.

     For all of these reasons, the case is remanded to the President for his decision as required under Section 25(3)(e) of the Act [52 F.S.M.C. 156].
 
     In remanding, I do not minimize the constitutional issues raised by the plaintiff. Notions of due process may well require that the ultimate decisionmaker review the record of the ad hoc committee hearing, at least insofar as either party to the personnel dispute may rely upon some portion of the record.
 
     Moreover, Congress presumably intended that the final decisionmaker would review the record.  The holding of a hearing before an ad hoc committee would be a strange and empty exercise indeed if the final decisionmaker may ignore

[1 FSM Intrm. 207]

all evidence presented at the hearing and base his decision upon entirely different factual considerations, or even a simple desire always to support the management decisions of those supervisors working under his direction without regard to the facts of the particular case.
 
     The fairness of the procedure may be enhanced, and the burden on the final decisionmaker reduced, by permitting all parties to the dispute an opportunity to set forth their thoughts about the decision of the ad hoc committee and to point out those parts of the record which they believe support their respective claims.  The President might now want to permit an opportunity for such written submissions by the parties before arriving at his own decision.
 
     It seems also to follow from the logic of the procedure set out by Congress that the final decisionmaker should write at least a brief decision reflecting his review of the record and stating the reasons for his decision.

Conclusion
     For the above reasons, this case is remanded to the President for his decision.
 
     A great deal of time has elapsed since the original termination action and both Mr. Suldan and the National Police Force remain uncertain of the outcome. Therefore, it is required that the President's decision be issued within forty five (45) days of this opinion.    
 
[1 FSM Intrm. 208]
 
     So ordered this 20th day of September, 1982.

                                                                      /s/ Edward C. King              
                                                                      Chief Justice
                                                                      Supreme Court of the Federated
                                                                      States of Micronesia