THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Damarlane v. United States,
7 FSM Intrm. 202 (App. 1995)

[7 FSM Intrm. 202]

IGNACIA DAMARLANE et al.,
Appellants,

vs.

UNITED STATES OF AMERICA, on its own and
standing in the place of the Trust Territory Government,
POHNPEI STATE GOVERNMENT, POHNPEI TRANSPORTATION AUTHORITY, FEDERATED STATES OF MICRONESIA
 and JOHN DOES 1-21,
Appellees.

APPEAL CASE NO. P1-1995

ORDER DISMISSING APPEAL

Decided:  July 16, 1995

BEFORE:
     Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellants:     Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Appellee:       Daniel J. Berman, Esq.
(United States)           Rush, Moore, Craven, Sutton, Morry & Beh
                                     2000 Hawaii Tower
                                     745 Fort Street
                                     Honolulu, HI 96813-3862

For the Appellees:     Richard L. Counts, Esq.
(Pohnpei & PTA)       Assistant Attorney General
                                     Office of the Pohnpei Attorney General
                                     P.O. Box 1555
                                     Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 203]

For the Appellee:       Mark L. Driver, Esq.
(FSM)                          Chief of Litigation
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941[7 FSM Intrm. 203]

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Decisions Reviewable
     Civil case appeals to the FSM Supreme Court may be taken from final decisions of the highest state courts in Yap and Pohnpei if the cases require interpretation of the national constitution, national law, or a treaty; and in other cases where appeals from final decisions of the highest state courts are permitted under the Constitution of that state.  A final decision is one which leaves nothing open to further dispute and which ends the litigation on the merits leaving the trial court with no alternative but to execute judgment.  Damarlane v. United States, 7 FSM Intrm. 202, 203-04 (App. 1995).

Appeal and Certiorari ) Decisions Reviewable
     A state appellate court opinion in response to questions of state law certified to it by the FSM Supreme Court trial division is not a final decision and therefore not reviewable by the FSM Supreme Court appellate division.  Damarlane v. United States, 7 FSM Intrm. 202, 204 (App. 1995).

*    *    *    *

COURT'S OPINION
PER CURIAM:
     Appellants seek to take an appeal in this Court of the Pohnpei Supreme Court Appellate Division responses to certain questions that were certified to that court by the trial division of the FSM Supreme Court, pursuant to FSM Appellate Rule 4(a)(1)(A).  See Appellants' Opp'n to United States' Motion to Dismiss Appeal at 1 (June 12, 1995).1  Appellants ask this Court to review the responses of the state court even though the trial division of this Court has not yet interpreted those responses or their impact on the facts of this case.  Appellees Pohnpei State, Pohnpei Transportation Authority, and the Federated States of Micronesia argue that this appeal must be dismissed because FSM Appellate Rule 4(a)(1)(A) only permits appeals from "final decisions," and because the appeal of the certified responses of the state court does not constitute an appeal of a final decision.

     FSM Appellate Rule 4 addresses the situations in which an appeal properly may be taken to the FSM Supreme Court Appellate Division.  According to FSM Appellate Rule 4(a)(1)(A), appeals in civil cases may be taken "from final decisions of the highest state courts in Yap and Pohnpei if the cases require interpretation of the national constitution, national law, or a treaty; and in other cases where appeals to this Court from final decisions of the highest state courts are permitted under the

[7 FSM Intrm. 204]

Constitution of those states."  Thus, regardless of whether the initial state court decision sought to be appealed requires interpretation of national law or is an appeal permitted by the Pohnpei State Constitution, the decision cannot be appealed unless it is a "final decision."

     As the term suggests, a final decision is

     [o]ne which leaves nothing open to further dispute and which sets at rest [a] cause of action between parties.  Judgment or decree which terminates action in court which renders it.  One which settles rights of parties respecting the subject-matter of the suit and which concludes them until it is reversed or set aside.

Black's Law Dictionary 567 (5th ed. 1979).  Black's states further that a "`[f]inal decision' which may be appealed is one that ends litigation on merits and leaves nothing for courts to do but execute judgment.  Id. (citation omitted).  It is apparent that the appeal sought to be taken in this case is not an appeal of a final decision. Although the state court has issued its responses to the two questions of state law that were certified to it by the FSM Supreme Court trial division,2 those answers do not "end this litigation on the merits" and they do not leave the trial division with no alternative but to "execute judgment."  In fact, the responses issued by the Pohnpei Supreme Court Appellate Division have no affect at all on appellants, because the court that has jurisdiction over the case, the FSM Supreme Court trial division, has not yet applied the substance of those responses to the facts of this case.  In addition, the court with jurisdiction over the case also has not yet determined whether the interpretations of state law contained in the state court's responses are consistent with national law and capable of being applied in the instant case.  Until the FSM Supreme Court trial division makes a final decision on these issues, the appellants do not yet have a final decision from which they would be permitted to appeal to this Court.3

     Although appellants only cite FSM Appellate Rule 4(a)(1)(A) as a basis for jurisdiction of their appeal, appellants' appeal is not permissible under any of the other subsections of FSM Appellate Rule 4(a)(1).  In addition to appeals from final decisions, FSM Appellate Rule 4(a)(1) also permits interlocutory appeals to the FSM Supreme Court appellate division from interlocutory orders of the FSM Supreme Court trial divisions,4 and appeals in any other case where such an appeal "is permitted as a

[7 FSM Intrm. 205]

matter of law."  FSM App. R. 4(a)(1)(E).

     While the appeal sought to be taken in this case is closer in form to an interlocutory appeal than a appeal from a final decision, this Court does not have jurisdiction over interlocutory appeals from orders of any court other than the Federated States of Micronesia Supreme Court trial division.  FSM App. R. 4(a)(1)(B)-(D).  Finally, FSM Appellate Rule 4(a)(1)(E) also cannot be relied upon as a jurisdictional basis for appeal in this case because neither appellants, nor this Court upon its own review and examination, have identified any other law that would permit the taking of the appeal sought in this case.

Conclusion
     For the reasons stated above, this Court does not have jurisdiction to hear the appeal sought to be taken in this case.  Accordingly, it is hereby ordered that the appeal in this case is dismissed.

*    *    *    *
 
Footnotes:
 
1.  Although appellants cite FSM Appellate Rule 3(a) in their Notice of Appeal, Rule 3 addresses the proper method for filing an appeal with the appellate division.  That rule does not define the jurisdictional reach of the appellate division.  Rather, it is Rule 4 that addresses the types of appeals that may be taken to this Court. Moreover, appellants only stated jurisdictional basis for this appeal is the reference to FSM Appellate Rule 4(a)(1)(A) contained in their opposition to appellees' motion to dismiss.
 
2.  The text of the two certified questions is reported at Damarlane v. Pohnpei Transportation Authority, 5 FSM Intrm. 67A, 67F (Pon. 1991).
 
3.  Because appellants fail FSM Appellate Rule 4(a)(1)(A)'s threshold requirement of a final decision, it is unnecessary to examine whether the appeal sought raises issues of national law or is permitted under the Pohnpei State Constitution.  Even if the Court were to assume that the appellants were appealing from a final decision of the lower court, appellants still could not proceed with this appeal because it cannot satisfy either of these additional prerequisites.  First, the certified questions specifically state that they only involve issues of "Pohnpei State law."  As a result, even if the responses of the state court did raise issues of national law as appellants suggest, that portion of the responses would be beyond the scope of the issues certified and therefore would not be considered by the trial division.  Moreover, the instant appeal also is not permitted under the Pohnpei State Constitution.  See Pon. Const. art. 10, 4(5) (mandating that the FSM Supreme Court appellate division may only review decisions of the Pohnpei Supreme Court appellate division where those decision require the interpretation of national law).
 
4.  An "interlocutory appeal," as opposed to an appeal of a final decision, is "an appeal of a matter which is not determinable of the controversy, but which is necessary for a suitable adjudication of the merits."  Black's Law Dictionary 731 (5th ed. 1979).