SLIP OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2014)

SAITAUGA O. VIENA, Administrator of the Estate of August Viena,
Petitioner,

v.

AMERICAN SAMOA GOVERNMENT,
Respondent.
 
High Court of American Samoa
Appellate Division
 
AP No. 07-11
 
June 10, 2014

[1] The High Court may not substitute its judgment for that of an agency as to the weight of evidence on questions of fact, and must afford appropriate weight to the agency‘s experience, technical competence, and specialized knowledge when reviewing the agency‘s interpretation of evidence, factual inferences, and conclusions of law. 
 
[2] The Court may reverse or modify an agency‘s decision or remand it back for further proceedings upon deciding the substantial rights of the petitioner have been prejudiced because the agency‘s decision: (1) violated applicable constitutional or statutory provisions; (2) was in excess of the agency‘s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) was clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record; or (6) was arbitrary, capricious or characterized by abuse of discretion. 
 
[3] Under the implementing administrative rules, A.S.A.C. § 4.0808 supplies an initial set of procedures to be followed when a position is abolished. 
 
[4] Once placed on the reemployment register, the administrative rules require special treatment of the displaced employee by the Director of Human Services with respect to any open positions in the career service. These rules are designed to effect the prompt reemployment of such individuals. 
 
[5] Pursuant to A.S.A.C. § 4.0902, an employee whose position was abolished may "appeal" his reduction-in-force status before the Personnel Advisory Board. 
 
[6] A separated employee is afforded sufficient time to exhaust his alternative reemployment or reduction-in-force options before filing for a hearing with the Personnel Advisory Board under the rules and is not required to file within 10 calendar days from his notice of the reduction-in-force from the Director of Human Services. 
 
[7] Under A.S.A.C. § 4.0808(d), consistent with the equitable treatment of employees affected by reductions in force required under A.S.C.A. § 7.0806, the Director of Human Resources must place terminated career service employees on the reemployment register and effect territory-wide R.I.F. procedures. 
 
[8] Once an employee is placed on the reemployment register, the administrative rules impose a duty upon the Director and Department of Human Services to place that individual in the next available open career service position, non-competitively. 
 
[9] Failing placement of a separated employee in the next available open noncompetitive career service position, the language of A.S.A.C. § 4.0808(d) strongly indicates the Director of Human Services must effect a "Territory-wide" reduction-in-force. 
 
[10] Judicial review of final agency decisions under the Administrative Procedures Act are initiated by filing a petition with this court within 30 days from the issuance date of the agency decisions (initial or upon reconsideration). 
 
[11] Pursuant to A.C.R. 15, a petition for review of a final agency decision shall specify the parties seeking review, naming the agency that issued the order as the respondent, and specify the agency order or part thereof to be reviewed. , and provide the Clerk of Courts with a copy of the petition for each named respondent, which the clerk shall serve. . 
 
[12] Under A.C.R. 15, within 20 days after service, the respondent shall file an answer to the petition. 
 
[13] Unless either party so requests the Court to further brief the issue or, by motion, seeks to supplement the record, the Court proceeds to the immediate review of the record after receiving respondent‘s answer. 
 
[14] When plaintiff‘s counsel filed a "Notice of Appeal" instead of petition conforming to statute and rule, no answer had been filed, and both parties proceeded with briefs without notifying the Court, the briefs were stricken from the record and the Court confined its review to the administrative record filed in the case. 
 
[15] The Court had no authority under its limited judicial review powers to direct the Executive Branch Departments, officers, or agencies involved with the termination and failure to timely rehire an individual who was in a career service position, to review and address the matter when the time limit for a contested case hearing and decision before the Personnel Advisory Board had expired 30 days after the individual filed his complaint. Instead, it could only remand the matter to the Personnel Advisory Board. 
 
Before KRUSE, Chief Justice; RICHMOND, Associate Justice; WARD, Associate Justice; LOGOAI, Chief Associate Judge; and MAMEA, Associate Judge 
 
Counsel: For Petitioner, Mark F. Ude 
 For Respondent, Masaya Uchino, Assistant Attorney General 
 
OPINION AND ORDER
 
WARD, Associate Justice: 
 
In this matter we review for legal sufficiency the Executive Branch actions and decisions concerning the abolishment of an encumbered position within the American Samoa Government ("A.S.G.") Career Service. Under the Administrative Procedures Act ("A.P.A."), A.S.C.A. §§ 4.1001-1044, the Appellate Division is authorized by the Legislature to review certain Executive Branch agency decisions. Strict construction of the statues providing for this review is required to avoid Judicial Branch encroachment upon Executive Branch powers and duties. [**2**] 
 
Our review of the record filed in this matter reveals substantial non-compliance with the statutes and administrative rules which establish the personnel procedures to be followed when a career service employee, through no fault of his own, loses his position because of funding cuts or revenue short-falls. Although we hold that the decisions made by the Executive Branch officials in this matter were not in accordance with law, the continuing procedural errors engaged in by both counsel and the Administrative Law Judge ("A.L.J.") preclude this Court from fashioning any direct remedy.

Standard of Review
 
[1-2] Pursuant to statute, we judicially review the record filed by the agency of government issuing the final decision in a contested case. A.S.C.A. §§ 4.1040 and 4.1043. This Court may not substitute its judgment for that of the agency as to the weight of evidence on questions of fact, and must afford appropriate weight to the agency‘s experience, technical competence, and specialized knowledge when reviewing the agency‘s interpretation of evidence, factual inferences, and conclusions of law. A.S.C.A. § 4.1043. Upon deciding the [**3**] substantial rights of the petitioner have been prejudiced because the agency‘s decision is: 
 
(1) In violation of applicable constitutional or statutory provisions; 

(2) In excess of the statutory authority of the agency; 

(3) Made upon unlawful procedure; 

(4) Affected by other error of law; 

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record; or 

(6) Arbitrary, capricious or characterized by abuse of discretion; 

the court may reverse or modify the agency‘s decision or remand it back for further proceedings. A.S.C.A. § 4.1044. 
 
Background
 
August Viena ("Viena") was a veteran career service employee of A.S.G. when he was selected from his former supervisory position with the Department of Public Works to serve as Deputy Director of Territorial Office of Homeland Security ("T.O.H.S.") in 2003. In early 2007, then Governor Tulafono issued an Executive Order combining several Executive branch Offices, including T.O.H.S., into a single Department of Homeland Security. Michael Sala was appointed as Acting Director of this new Department. Mr. Sala promptly learned that Federal funding for the old T.O.H.S. had been frozen and local funds for the new department and its employees were virtually non-existent. Federal funding ceased on 9 March 2007. The Director of Human Resources notified the department staff, [**4**] including Viena, on 19 March 2007 that their last working date was of even date, and they were being laid off immediately pursuant to "Lay-off-Reduction-in-force." In late August 2007, Acting Director Sala sent a letter to the Director of Human Services advising the Director that the federal funds remained frozen and that the career service employees of the D.H.S. who had been "furloughed" be "placed in the register or applicant supply file . . . in the manner specified and pursuant to the laws."
 
On 5 November 2007, Viena, through his former attorney, filed a "Complaint" with the A.L.J‘s Office naming the Office of the Governor, American Samoa Government, Governor Togiola T. Tulafono and Director of Human Resources as Defendants/Respondents. In response to a formal answer being filed, Viena‘s attorney filed his first set of interrogatories on 12 December 2007. 
 
The matter appears to have languished until Viena‘s present attorney took over the case months later. A motion by the Assistant Attorney General to Quash Subpoenas issued to the Governor and others by Viena was filed on 20 October 2010. Hearings in this matter were conducted by the A.L.J. in November and December 2010, by which time Viena had been hired (in May 2010) by Congressman Faleomavaega at his local office. [**5**] 
 
At the 16 December 2010 hearing, the then current Director of Human Resources testified that in reduction-in-force matters, "There‘s a notification, placement of individual within existing department affected by the reduction-in-force. The placement of that employee is not possible within that agency they are notified for termination and placed on a register for a period of one year to be considered for another employment within the government for vacancies that may exist." ALJ Hr‘g Tr. 15-16. Further testimony by the Director stated "Once they are on the register, the Reduction In Force Register, if there are vacancies to where the applicant qualifies for that position, they can be considered, screened if they are eligible. And if they rank in the top five for the most qualified, their names are forwarded to that department for hiring during the interview. But the ultimate final selection is made by that department" and further, "The only requirement for the reduction-in-force register is that they are placed on the register for consideration for hiring for positions they are qualified for but there‘s no mention in the records." ALJ Hr‘g Tr. 16, 22. 
 
Viena also testified on 16 December 2010 hearing at the hearing stating that he had applied for various A.S.G. positions (including some appointive positions outside of career service employment in the Judiciary and with A.S.P.A.). Specifically, [**6**] he mentioned applying for an open position with the Coastal Zone Management that he had previously held from 1990-94. ALJ Hr‘g Tr. 32- 33. But he was unable to secure employment until he was hired in May 2010 by the Congressman. 
 
On 19 August 2011, the A.L.J. issued an Order Adopting Findings of Fact and Conclusions of Law and Decision holding that the reduction in force ("R.I.F.") was necessary because of lack of funding. Further, the A.L.J. held that A.S.G. complied with A.S.A.C. § 4.0808, "namely: that the notification of the Reduction In Force to affected employees was done immediately because of the frozen federal funds and then their names were put on the Reemployment Registry." Viena was denied any relief by this Order. 
 
An Order Denying Motion for Reconsideration was issued by the A.L.J. on 4 October 2011. A "Notice of Appeal" was filed by Viena's counsel with this Court on 13 October 2011. 
 
Discussion
 
1. Statutory and Administrative Rule Overview 
 
The statute governing the abolishment of career service employment positions is A.S.C.A. § 7.0806, which reads: 
 
7.0806 Abolishment of positions. 

(a) Abolishment of an encumbered position in the career service due to the lack of work or funds, or reorganization, and separation of the incumbent from such, position, shall constitute a reduction in force. [**7**] 

(b) The Director of Manpower Resources shall establish and administer rules and regulations governing the disposition of employees affected by the reductions in force, which shall give due recognition to merit and fitness, length of service, tenure, and type of appointment, thus insuring equitable treatment of the latter." (Emphasis added). 
 
[3] Under the implementing administrative rules, A.S.A.C. § 4.0808 supplies an initial set of procedures to be followed when a position is abolished, state in relevant part: 
 
(a) When there is an impending layoff because of lack of funds . . . the department head shall notify the director and the affected employee(s) in writing as soon as possible byt at least 60 days in advance of the layoff unless cutoff of funds requires a shorter notice period, in which case such requirement must be stated in writing. 

. . . . 

(c) The department head shall exhaust all possibilities in placing the employee within his department before a territory-wide reduction-in-force is effectuated. 

(1) When there is no appropriate vacant position in which the career service employee may be placed, the department shall follow the order below in determining which employee shall be displaced 

. . . . 

(d) If the department head is unable to place the employee, he shall immediately notify the director [of human resources], who will issue the 2-week notice of termination, place the employee on the reemployment register, and effect territory-wide RIF procedures." (Emphasis added). [**8**] 

[4] Once placed on the reemployment register, the administrative rules require special treatment of the displaced employee by the Director of Human Services with respect to any open positions in the career service.

These rules appear to be [**9**] designed to effect the prompt reemployment of such individuals in lieu of a territory-wide reduction-in-force. 
 
[5-6] Pursuant to A.S.A.C. § 4.0902, an employee whose position was abolished may "appeal" his reduction-in-force status before the Personnel Advisory board ("P.A.B.") (the A.L.J. acting as a hearing s officer during that proceeding). As we held in Solomuli v. Dept. of Health, Ap. No. 06-08 (App. Div. May 14, 2009), in such cases the separated employee is not required to file with the P.A.B./A.L.J within 10 calendar days from his notice of the reduction-in-force from the Director of Human Services; the employee is afforded sufficient time to exhaust his alternative reemployment or reduction-in-force options before filing for a hearing under [**10**] this rule. That hearing is then conducted pursuant to the timelines and procedures set forth under this rule. 

2. Analysis 
 
[7] It is clear from the record in this case and with the Solomuli case, supra, that the Department of Human Resources has failed to comply with either the statutory mandates of the Fono or with its own administrative rules in matters involving the abolishment of career services positions caused by loss of funding. Under A.S.A.C. § 4.0808(d), consistent with the equitable treatment of employees affected by reductions in force required under A.S.C.A. § 7.0806, the Director of Human Resources must place terminate career service employees "on the reemployment register and effect territory-wide R.I.F. procedures."
 
[8-9] Once the employee is placed on the reemployment register the administrative rules impose a duty upon the Director and Department of Human Services to place that individual in the next available open career service position, non-competitively. See A.S.A.C. §§ 4.0303, 4.0310, 4.0312. Failing such placement, the language of Rule 4.0808(d) strongly indicates the Director must effect a "Territory-wide" R.I.F. In the instant matter, the record reveals that Viena could, and under the applicable [**11**] administrative rules should, have been timely placed in the vacant position within the Coastal Zone Management Program which he had previously held as a career service employee. 
 
The testimony of the then-current Director of Human Services at the A.L.J. hearing, and the resultant decision of the A.L.J. in this matter, stand for exactly the opposite approach: that all the statute and rules require are that the R.I.F. affected employee simply be placed on the reemployment registry and nothing else. This practice is not in accordance with the Career Service Statutes or administrative rules. 
 
3. Procedural Errors 
 
In Louis Segi v. Am. Samoa Gov’t, AP No. 7-12 (App. Div. Aug. 22, 2013), we clearly set forth the procedures for petition this Court for review of final agency decisions under the A.P.A. See Segi at 5 n.1. 
 
[10-13] To reiterate: Judicial review of final agency decisions under the A.P.A. are conducted pursuant to the A.S.C.A. §§ 4.1040-4.1044. Proceedings are initiated by filing a petition with this court within 30 days from the issuance date of the agency decisions (initial or upon reconsideration). A.S.C.A. § 4.1041. Pursuant to A.C.R. 15(a), the petition shall specific the parties seeking review and the agency order or part thereof [**12**] to be reviewed. The agency issuing the order is named as the respondent. Pursuant to A.C.R. 15(c), the petitioner, when filing, shall provide the Clerk of Courts with a copy of the petition for each named respondent, which the clerk shall serve. All other parties to the administrative hearings before the agency are required to be served by the petition and a list thereof submitted to the clerk. Within 20 days after service, the respondent shall file an answer to the petition. A.C.R. 15(b). Unless either party so requests the Court to further brief the issue or, by motion, seek to supplement the record, the Court proceeds to the immediate review of the record (as specified in the petition and responded to in the answer). A.S.C.A. § 4.1043. 
 
[14] In this matter, as in the Segi case, supra, Viena's counsel filed a "Notice of Appeal‖ instead of petition conforming to statute and rule. No answer has been filed. Both parties proceeded with briefs without notifying the Court. As we held in Segi, these briefs are therefore stricken from the record in this matter and we have confined our review to the administrative record filed in this case. [**13**] 

In addition to the foregoing pleading deficiencies in this matter on review, we are again confronted with a P.A.B./A.L.J. administrative hearing process and ruling that caused us concern in Segi. In that case, we held that under the statutory language used by the legislature in amending both the Personnel Advisory Board statute at A.S.C.A. § 7.0104 and the Administrative Law Judge Act of 1998 at A.S.C.A. § 4.0604(b), the A.L.J. was required to timely conduct an administrative contested case hearing and issue a ruling concerning the career service employee‘s pending removal for cause by the director of Human Resources. See Segi at 9-11. The applicable administrative rule which establishes how such career service cases are to be heard and administratively decided is A.S.A.C. § 4.0902, which includes in subsection (b), the requirement that the hearing be conducted and decided within 30 days after the career service employee files with the P.A.B./A.L.J. This is the rule under which the P.A.N. used to conduct such hearings before the statute was amended. Instead of the timely administrative decision owed to Viena, he did not receive a hearing until December 2010 or a decision before August 2011 (by which time he had already secured employment outside of the A.S.G. Career Service). [**14**] 
 
Reasoning further, and balancing the career service employee‘s right to a speedy administrative resolution and timely review by the Appellate Division of the High Court if the employee was aggrieved, we held that the Legislature intended such hearings to be timely conducted by the A.L.J. pursuant to the Administrative Procedures Act, contested case provisions, rather than under the A.L.J.'s statutory authority to conduct a more formal, prolonged hearing pursuant to the A.L.J.'s general authority to review administrative rulings or decisions on appeal from other administrative agencies pursuant to A.S.C.A. § 4.0604(h) under the special rules, procedures, and standard for such administrative appellate review hearings set forth in A.S.C.A. § 4.0607 and 4.0608. See Segi at 7-9. 
 
We reach the same limited interpretation of the statutes and administrative rules in this matter. Viena was entitled to hearing before the A.L.J. conducted pursuant to A.S.A.C. § 4.0902 within 30 days from filing his ―complaint‖ on 5 November 2007. 
 
Conclusion
 
[15] As we held in Segi, we are likewise left here with no clear authority under out limited judicial review powers to direct the Executive Branch Departments, officers, or agencies involved with Viena's career service position termination and their failure to timely rehire him, to review and address this [**15**] matter upon remand. The time limit for a contested case hearing and decision before the P.A.B./A.L.J. expired 30 days after Viena filed his "complaint" in 2007. 
 
The only option available is, as in Segi, to remand this matter to the P.A.B. to exercise those statutory powers still remaining with the Board, which include, under A.S.C.A. § 7.0102(a)(3), the power to investigate personnel problems in the government and report to the Governor their findings and recommendations. (Pursuant to A.S.C.A. § 7.0110(5), the Director of Human Resources, as Executive Secretary of the P.A.B. assists the Board in such investigations). 
 
We trust the P.A.B. will be able not only to further investigate the apparent failure of the Department of Human Resources to equitably address the re-hiring of Viena in 2007 pursuant to its administrative rules, and determine whether the Estate of Viena is entitled to any compensation, but also address and clarify employees' rights to "territory-wide reduction-in-force" opportunities in future abolishment of position cases. Further, this specific remand to the Board will afford it the opportunity to review its administrative rules governing employee hearings being conducted by the A.L.J. as its hearings officer to better ensure future hearings are conducted in accordance with law. [**16**] 
 
Order
 
It is HEREBY ORDERED that this case is REMANDED to the Personnel Advisory Board for further investigation and review consistent with this opinion. 
 
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