FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2009-023

MARY BERMAN,
Plaintiff,

vs.

POHNPEI STATE GOVERNMENT, HENRY
SUSAIA, as EPA Director, and POHNPEI STATE
ENVIRONMENTAL PROTECTION AGENCY,
Defendants.
_____________________________________________

ORDER DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION

Larry Wentworth
Associate Justice

Hearings:  July 31, and October 22, 2019
Decided:  October 31, 2019

APPEARANCES:

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

For the Defendants:	Monaliza Abello-Pangelinan, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Parties - Official Capacity; Civil Procedure - Parties - Substitution of
A person sued in his official capacity will be automatically replaced by the current officeholder.  Berman v. Pohnpei, 22 FSM R. 377, 380 n.2 (Pon. 2019).

Civil Procedure - Summary Judgment - Grounds
When the court cannot find an adequate factual basis for it to conclude that, as a matter of law, the movant is entitled to summary judgment on certain claims, the court cannot grant summary judgment for those claims.  Berman v. Pohnpei, 22 FSM R. 377, 381 (Pon. 2019).

Torts - Defamation
Libel is a false and unprivileged publication by writing which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him or her to be shunned or avoided or which has a tendency to injure him or her in his or her occupation.  Berman v. Pohnpei, 22 FSM R. 377, 381 (Pon. 2019).

Torts - Defamation Per Se
Defamation per se follows the ordinary defamation analysis, except the requirement to show special injury [that is, that the false statement caused compensatory damages] is waived when the disparaging statements impute 1) a criminal offense; 2) a loathsome disease; 3) a matter incompatible with his or her business, trade, profession or office; or 4) sexual misconduct.  Berman v. Pohnpei, 22 FSM R. 377, 381 (Pon. 2019).

Civil Procedure - Summary Judgment - Grounds - Particular Cases; Torts - Defamation
The court will not grant the plaintiff summary judgment on her defamation claim when it has no basis to find as an undisputed fact that the inclusion of a false statement in a statement, the rest of which was true, caused any damage, especially because the court cannot find that that one false statement, and that false statement alone, caused damages.  Berman v. Pohnpei, 22 FSM R. 377, 381-82 (Pon. 2019).

Torts - Defamation Per Se
A court cannot, as a matter of law, conclude that a false statement that an attorney had sued a particular government agency would impute a matter that would be incompatible with an attorney’s profession and thus constitute defamation per se when, if an occasion had arisen where it seemed advisable, the attorney would have sued the agency and when suing that agency would be completely compatible not only with the attorney’s profession but also with her particular practice.  Berman v. Pohnpei, 22 FSM R. 377, 382 (Pon. 2019).

Civil Procedure - Summary Judgment - For the Nonmovant
When a party’s summary judgment motion is denied as a matter of law and when it appears the nonmoving party is entitled to judgment as a matter of law, the court may, in the absence of a cross-motion for summary judgment, grant summary judgment to the nonmoving party if the original movant had an adequate opportunity to show that there is a genuine issue and that the nonmoving opponent is not entitled to judgment as a matter of law.  Berman v. Pohnpei, 22 FSM R. 377, 382 (Pon. 2019).

Civil Procedure - Summary Judgment - Grounds - Particular Cases; Torts - Defamation Per Se
Summary judgment for the defendants on a plaintiff’s defamation per se claim leaves the regular libel or defamation claim unresolved.  Berman v. Pohnpei, 22 FSM R. 377, 382 (Pon. 2019).

Attorney’s Fees - Court-Awarded
It is settled law that an attorney’s fee award cannot be made to a pro se litigant regardless of whether the litigant is a lawyer or a lay person.  Attorney’s fees are not available to pro se litigants even when they prevail.  Berman v. Pohnpei, 22 FSM R. 377, 382 (Pon. 2019).

Sovereign Immunity - Pohnpei; Torts - Damages - Punitive
Pohnpei state government and its agencies are statutorily immune from punitive damages.  Berman v. Pohnpei, 22 FSM R. 377, 382 (Pon. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On July 31, 2019, and on October 22, 2019, the court heard argument and supplemental argument on 1) the plaintiff’s Motion for Summary Judgment, filed, with exhibits and supporting affidavit, on May 7, 2013;1 2) the defendants’ Opposition to Motion to Dismiss, filed July 26, 2019; 3) Supplement to Motion for Summary Judgment; Reply to Opposition to Summary Judgment, filed July 30, 1019; 4) Affidavit in Support of Summary Judgment, filed July 31, 2019; and 5) Reply to State’s Surreply to Motion for Summary Judgment, filed August 23, 2019.  The summary judgment motion is denied for the reasons that follow.

	I.  Factual Background

In 2007, the Pohnpei Environmental Protection Agency ("EPA") advertised an opening for an attorney position.  The plaintiff, Mary Berman, was the only applicant.  She made the eligible list but was not hired.  Acting EPA Director Etiny Hadley asked that the position be readvertised.  The reason he gave was that Berman was an unsuitable hire because she "had sued the Pohnpei EPA in the past, as well as other state and national government agencies[, and w]hile she has worked for Pohnpei executive agencies and the Pohnpei Legislature previously, her contracts have never been renewed."  Letter from Etiny Hadley to Andrew Joseph, Acting Dir. Treasury & Admin. (July 30, 2007).

The position was readvertised in 2008, and Berman reapplied.  She was not hired.  Two FSM citizens made the eligible list.  Neither was, for various reasons, able to accept appointment to the position.  Berman also applied for other state government attorney positions as they were advertised.  She was not hired for any of those either.

Berman filed this lawsuit on June 18, 2009.  She alleges that Acting Director Hadley’s (and thus the EPA’s) refusal to hire her violated her fundamental liberty interest in an employment opportunity; her right to equal treatment under the law; her right to free speech; and her right to petition the government for redress.  She further alleges that Acting Director Hadley’s statement was false and libelous and that it defamed her and caused damages by the state not hiring her.

In their answer, the Pohnpei state government, Acting EPA Director Etiny Hadley,2 and the Pohnpei Environmental Protection Agency (collectively "Pohnpei"), conceded that Berman had never sued the EPA before and raised the affirmative defenses of failure to state a claim upon which relief could be granted; the statute of limitations; qualified immunity; and the failure to mitigate damages.

In July, 2009, the EPA again advertised an attorney position, and Berman was again the only applicant.  Berman was hired on two successive three-month contracts.  Her duties consisted of drafting regulations.  In 2010, Berman had another three-month employment contract with the Pohnpei Department of Land and Natural Resources.  Once she reached the "official" Pohnpei retirement age of 60, Berman received no other offers of state employment.

On May 7, 2013, Berman moved for summary judgment.  Berman freely acknowledges that, in the course of her work as a private attorney, she has sued both the FSM national and Pohnpei state governments on a number of occasions where, in her view, state or national government employees or agencies were violating the Constitution or national or state laws.  Berman contends that Pohnpei’s refusal to hire her was retaliation for her work on those cases, which she characterizes as suppressing her rights to free speech and to petition the government for redress.

Relying on the defendants’ admission that Acting Director Hadley’s statement that she had once sued the EPA was false, Berman contends that that false statement was defamatory and must have damaged her reputation because the state did not hire her, thus damaging her employment income.  Berman further contends that she is also entitled to awards for attorney’s fees and punitive damages.  Addressing Pohnpei’s affirmative defenses, Berman contends that the alleged harm to her reputation states a claim for relief; that her suit was filed within the limitations period; that Pohnpei put forward no evidence of any immunity; that the Pohnpei Government Liability Act waived Pohnpei’s liability for acts violating constitutional rights; and that, as shown by her continued applications for government employment, she has tried to mitigate her damages.

Berman also argues that when she first reapplied for the EPA position, the other two applicants, who were FSM citizens were the only persons put on the eligible list,3 and that she was not, although, in her view, she should have been because she is a United States citizen and a legal resident of Pohnpei and the statute states a preference for FSM citizens and Pohnpei legal residents.  Berman further contends that since Acting Director Hadley’s statement was false and since it damaged her professional reputation because, after the false statement was made, she was not hired at any of the state attorney positions for which she applied, that the false statement was defamation per se, which should automatically entitle her to summary judgment in her favor.

Pohnpei rests its opposition to summary judgment on the premise that there are triable issues of fact because it is disputed whether Hadley’s false statement was the actual cause of her continued lack of success in obtaining Pohnpei government employment and whether, in fact, it was defamatory.

II.  Legal Analysis

A.  Claims Other than Defamation or Libel

Berman’s summary judgment motion and supplemental filings focus on her libel and defamation per se claims (discussed below).  Those claims, and argument based on those claims, also underpin Berman’s equal protection and due process claims, and even her free speech and right of redress claims.

The court cannot find an adequate factual basis for it to conclude that, as a matter of law, Berman is entitled to summary judgment on the equal protection, due process, free speech, or right of redress claims.  It is unclear to the court, and certainly no undisputed factual basis explains, exactly why Berman was not hired on various occasions.  The court therefore cannot grant summary judgment for these claims.  It is undisputed that, of the reasons that Acting Director Hadley gave, Hadley’s statements that she had sued other state and national government agencies and that her employment contracts had not been renewed were true, and that his statement that she had previously sued the EPA was untrue.  The effect of that untrue statement is discussed next.

B.  Defamation

Berman contends that Acting Director Hadley’s false statement that she had previously sued EPA was both libel and defamation per se.  "[L]ibel may be defined as ’a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy or which cause him [or her] to be shunned or avoided or which has a tendency to injure him [or her] in his [or her] occupation.’"  Pohl v. Chuuk Public Utility Corp., 13 FSM R. 550, 557 (Chk. 2005) (quoting 50 Am. Jur. 2d Libel and Slander § 7 (rev. ed. 1995)).  "[D]efamation per se follows the ordinary defamation analysis, except the requirement to show special injury [that is, that the false statement caused compensatory damages] is waived when the disparaging statements impute a 1) criminal offense; 2) a loathsome disease; 3) a matter incompatible with his [or her] business, trade, profession or office; 4) or sexual misconduct."  Zacchini v. Hainrick, 19 FSM R. 403, 415 (Pon. 2014) (citing Restatement (Second) of Torts §§ 570-74 (1977)).

Berman contends that Hadley’s libel and defamation per se injured her in her occupation as an attorney (libel) and was a matter incompatible with her profession (defamation per se).  Berman does not dispute that the rest of Hadley’s statement was true - that she had sued "other state and national government agencies" and that "[w]hile she has worked for Pohnpei executive agencies and the Pohnpei Legislature previously, her contracts have never been renewed."

The court can see no basis to find as an undisputed fact that the inclusion of the false statement (that she had previously sued the EPA) made the difference between her being hired in 2007 by the EPA or in subsequent years by any Pohnpei state agency.4  Whether that false statement caused any damage, especially in the years after the 2007 application, is unclear and disputed.  The court cannot find, on the present record, that that one false statement, and that false statement alone, caused Berman to be exposed to hatred, contempt, ridicule, or obloquy or cause her to be shunned or avoided or had a tendency to injure her in her occupation.  It is entirely plausible that Berman may not have been hired if Acting Director Hadley had only given the truthful parts of his statement as the reason to readvertise the EPA position.  The court cannot find, without evidence to that effect, that without the inclusion of the false statement, Berman would have been hired.

And the court cannot, as a matter of law, conclude that suing the EPA would impute a matter that would be incompatible with her profession (defamation per se).  The court is confident that if an occasion had arisen where it seemed advisable, Berman would not have hesitated to sue the EPA.  A suit against the EPA would be completely compatible not only with Berman’s profession as an attorney but also with her particular practice.  Thus, as a matter of law, Acting Director Hadley’s (partially) false statement is not defamation per se.

When a party’s summary judgment motion is denied as a matter of law and it appears the nonmoving party is entitled to judgment as a matter of law, the court may, in the absence of a cross-motion for summary judgment, grant summary judgment to the nonmoving party if the original movant had an adequate opportunity to show that there is a genuine issue and that the nonmoving opponent is not entitled to judgment as a matter of law.  Louis v. FSM Social Sec. Admin., 20 FSM R. 268, 275 (Pon. 2015); Isamu Nakasone Store v. David, 20 FSM R. 53, 58 (Pon. 2015); Truk Continental Hotel, Inc. v. Chuuk, 6 FSM R. 310, 311 (Chk. 1994).  That is the case here.

Therefore the Pohnpei defendants are, as a matter of law, entitled to, and are granted, summary judgment on Berman’s defamation per se claim.  This ruling does not affect her regular libel or defamation claim.  That claim remains unresolved.

C.  Attorney’s Fees

Berman also contends (presuming she prevails on her defamation claim) that she is entitled, under 11 F.S.M.C. 701(3), to an attorney’s fees award.  It is settled law that an attorney’s fee award cannot be made to a pro se litigant regardless of whether the litigant is a lawyer or a lay person.  Berman v. Pohnpei, 17 FSM R. 360, 376 (App. 2011).  Attorney’s fees are not available to pro se litigants even when they prevail.  Berman v. Pohnpei, 19 FSM R. 111, 117 (App. 2013).  Thus, even if Berman ultimately prevails on some claim in this lawsuit, the court must, as a matter of law, deny her claim for an attorney’s fees award.

The court therefore grants the Pohnpei state defendants summary judgment on Berman’s claim for an attorney’s fee award.

D.  Punitive Damages

Berman originally also moved (assuming she prevailed on her defamation per se claim) for a punitive damages award.  But in her later filings, she conceded that, under Pohnpei state law, punitive damages could not be awarded.  That is correct.  Pohnpei state government and its agencies are statutorily immune from punitive damages.  58 Pon. C. § 2-106.  Since, as a matter of law, punitive damages cannot be awarded, the Pohnpei defendants are also granted summary judgment on Berman’s punitive damages claim.

III.  Conclusion

Accordingly, Mary Berman’s motion for summary judgment is denied because there are genuine issues of material fact.  The defendants are granted summary judgment on Berman’s allegation of defamation per se and on her claims for awards of attorney’s fees and of punitive damages.

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