FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-1075

BIANA WERIEY,
Plaintiff,

vs.

JESSE MORI, in his official capacity as Director of the Department of Administrative Services, DEPARTMENT OF ADMINISTRATIVE SERVICES, and STATE OF CHUUK,
Defendants.

______________________________________

ORDER OF DISMISSAL

Ready E. Johnny
Associate Justice

Hearing: January 6, 2009
Decided: February 25, 2009

APPEARANCES:

For the Plaintiff: Salomon Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants: Joses Gallen, Esq.
Chuuk Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Public Officers and Employees  Chuuk
 The Truk Public Service System Act requires that its covered employees be paid a differential for work performed at night, on holidays, or for overtime. Weriey v. Chuuk, 16 FSM Intrm. 329, 331 (Chk. 2009).

Administrative Law; Public Officers and Employees  Chuuk
 A public service system employee's claim or disagreement over the employee's pay, working conditions, or status is a grievance for which the Truk Public Service System Act requires that regulations prescribe a system for hearing. The Truk Public Service Regulations provide for a Truk Public Service Grievance System that covers any employment matter of concern or dissatisfaction to an eligible employee. The regulations contain two grievance procedures, an informal grievance procedure, and a formal grievance procedure. An employee must show evidence of having pursued the employee's grievance informally before the employee can utilize the formal grievance procedure. Weriey v. Chuuk, 16 FSM Intrm. 329, 331 (Chk. 2009).

Administrative Law; Public Officers and Employees  Chuuk
 If an employee's immediate supervisor does not settle a grievance to the employee's satisfaction, then the employee may forward the grievance in writing to the State Personnel Officer and request review by a formal panel. The formal panel will then be provided with the necessary government records, hear the grievance, and make its recommendation to the Governor. The Governor then resolves the grievance. The administrative procedure does not include asking the Director of the Department of Administrative Services to resolve the matter (unless the Director is the aggrieved employee's immediate supervisor). Weriey v. Chuuk, 16 FSM Intrm. 329, 331 (Chk. 2009).

Administrative Law  Judicial Review; Public Officers and Employees  Chuuk
 When an employee has made no attempt to seek redress through the administrative procedure although she apparently did seek payment directly from the Department of Administrative Services, which is not part of the administrative grievance procedure, she has not exhausted her administrative remedies before she filed suit because neither the Department of Administrative Services nor its Director is the arbiter of administrative grievances. Weriey v. Chuuk, 16 FSM Intrm. 329, 332 (Chk. 2009).

Administrative Law  Judicial Review; Public Officers and Employees  Chuuk
 An employee has not shown that trying to obtain relief for unpaid wages through the administrative process would have been futile when the only evidence is the Director of Administrative Services's letter that applied only to employees in another department whose paychecks were not processed since there is no evidence that funds were not available to pay employees in the employee's department or that liability would be denied for any just claim for unpaid wages on the ground no funding was then available, especially since a claimed inability to pay is not a defense to liability. Thus, whether the state had funds to pay has no bearing on whether it is liable for payment. Weriey v. Chuuk, 16 FSM Intrm. 329, 332 (Chk. 2009).

Torts; Torts  Governmental Liability
 A claimed inability to pay is not a defense to liability. Weriey v. Chuuk, 16 FSM Intrm. 329, 332 (Chk. 2009).

Administrative Law  Judicial Review
 Exhaustion of administrative remedies is ordinarily a prerequisite for judicial jurisdiction. This rule is a wholesome one and an aid to the proper administration of justice since it prevents the transfer to courts of duties imposed by law on administrative agencies. Weriey v. Chuuk, 16 FSM Intrm. 329, 332 (Chk. 2009).

* * * *

COURT'S OPINION

READY E. JOHNNY, Associate Justice:

 On January 6, 2009, this came before the court for hearing on the defendants' Motion to Dismiss and Alternative Motion for a More Definite Statement, filed September 24, 2008 and the plaintiff's opposition, filed October 15, 2008. The motion is granted. The court's reasons follow.

I. Background

 The plaintiff, Biana Weriey, seeks judgment for unpaid back wages for holiday, overtime, and night shift differential pay she alleges is owed her as a Chuuk state public service system employee. She brings this action as a civil rights claim under 11 F.S.M.C. 701(3), alleging the taking of her property, her unpaid wages, without due process or just compensation.

 The defendants move to dismiss this action on the grounds that Weriey failed to state a claim upon which relief may be granted; that Weriey failed to exhaust her administrative remedies before filing suit; that some or all of the relief sought may be barred by the six-year statute of limitations; that the non-payment may be legally justified; and that because Weriey failed to exhaust her administrative remedies, the court lacks jurisdiction. In the alternative, the defendants move for a more definite statement. They ask the court to order Weriey to include certain information in her complaint, including what department she worked in; her salary; and which pay periods her wages were withheld and how they were withheld or denied. Oral argument focused on the administrative remedies defense.

 Weriey, in opposition, asserts that the defendants cannot show that, viewing the complaint's facts and inferences in the light most favorable to her, it appears to a certainty that there is no relief the court could grant upon any state of facts that she could prove. Weriey concedes that she has not exhausted her administrative remedies but relies upon the principle that a litigant is not required to first exhaust her administrative remedies when it would be futile to try to do so. In support of her contention that her proceeding through the administrative process would be futile, she produces a July 2, 2008 letter from the Chuuk Director of Administrative Services to her counsel stating that a certain Chuuk Land Commission employee had not been or would not be paid because the Director did not know where he could obtain funding to pay those wages. At oral argument, Weriey asserted that the letter was offered as an example of the Director's response to this and other claims for unpaid wages.

II. Administrative Procedure

 The Truk Public Service System Act requires that its covered employees be paid a differential for work performed at night, on holidays, or for overtime. Truk S.L. No. 3-43, § 17(5). Weriey claims that she performed such work but was not paid the differential as required by statute.

 A public service system employee's claim or disagreement over the employee's pay, working conditions, or status is a grievance for which the Act requires that regulations prescribe a system for hearing. Id. § 22. The Truk Public Service Regulations provide for a Truk Public Service Grievance System that "cover[s] any employment matter of concern or dissatisfaction to an eligible employee . . . ." Truk Pub. Serv. Regs. pt. III, § D.2. The regulations contain two grievance procedures, an informal grievance procedure, id. § D.5, and a formal grievance procedure, id. § D.6. An employee must show evidence of having pursued the employee's grievance informally before the employee can utilize the formal grievance procedure. Id. § D.5. Generally, the informal procedure consists of the employee presenting the grievance, either orally or in writing, to the employee's supervisor. Id. If the employee's immediate supervisor does not settle the grievance to the employee's satisfaction, then the employee may forward the grievance in writing "to the State Personnel Officer and request review by a formal panel." Id. § D.6(A). The formal panel will then be provided with the necessary government records, hear the grievance, and make its recommendation to the Governor. Id. § D.6(B). The Governor then resolves the grievance. Id. §§ D.6(A), D.7.

 The administrative procedure does not include asking the Director of the Department of Administrative Services to resolve the matter (unless, of course, if the Director is the aggrieved employee's immediate supervisor).

III. Analysis

 Weriey made no attempt to seek redress through the administrative procedure. Although she apparently did seek payment directly from the Department of Administrative Services, that is not part of the administrative grievance procedure. That department only has the authority to issue paychecks to the extent that a state employee's department has authorized or requested the issuance. Neither the Department of Administrative Services nor its Director is the arbiter of administrative grievances.

 Weriey had not exhausted her administrative remedies before she filed suit. She has not shown that trying to obtain relief through the administrative process would have been futile. The Department of Administrative Services Director's letter and the statements therein obviously applied only to "those Chuuk State Land Commission employees whose paychecks were not processed." It says nothing about the pay status of any other department's employees. Counsel at oral argument informed the court that Weriey was not a Land Commission employee.

 There is no evidence before the court that funds were not available to pay employees in other departments or in Weriey's department or that liability would be denied for any just claim for unpaid wages on the ground no funding was then available. Furthermore, a claimed inability to pay is not a defense to liability. Thus, whether the state had funds to pay has no bearing on whether it is liable for payment. Weriey seeks herein a judgment that the state is liable for unpaid wage differentials before she will seek to enforce that judgment. The court therefore finds that there is no evidence before it from which it could conclude that it would have been futile for Weriey to pursue administratively the state's liability for her unpaid wage differential claims.

 Exhaustion of administrative remedies is ordinarily a prerequisite for judicial jurisdiction. Tomy v. Walter, 12 FSM Intrm. 266, 270 (Chk. S. Ct. Tr. 2003) (under normal circumstances exhaustion of administrative remedies is a pre-requisite to bringing an action in court). When a statute provides an administrative remedy, relief ordinarily must not only be sought initially from the appropriate administrative agency but that remedy usually must also be exhausted before a litigant may resort to the courts. Choisa v. Osia, 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998); see also Asumen Venture, Inc. v. Board of Trustees, 12 FSM Intrm. 84, 89 (Pon. 2003) (one must follow whatever procedures are in place to seek reconsideration of an agency's allegedly erroneous decision (within the agency itself) or to seek the decision's reversal at the administrative level (often by the executive body overseeing the agency) before bringing the dispute to the judiciary's attention); International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000) (one who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision may then seek judicial review). This rule "is a wholesome one and an aid to the proper administration of justice" since it prevents "the transfer to courts of duties imposed by law on administrative agencies." Choisa, 8 FSM Intrm. at 569.

 The court therefore concludes that it is without jurisdiction to adjudicate this matter since Weriey has not exhausted her administrative remedies.

IV. Conclusion

 Accordingly, Biana Weriey's complaint is dismissed. Should she still be aggrieved after exhausting her administrative remedies, she may then return to court.