IN THE SUPERIOR COURT OF GUAM 2
3 ) GUAJVI HOUSING CORPORATION, ) CASE NO. SP0119-13 4 ) 5 Petitioner, ) ) 6 DECISION AND ORDER V. ) ON ORDER TO SHOW CAUSE 7 ) GUAM CIVIL SERVICE ) 8 ) COMMISSION, 9 ) Respondent, ) 10 ) V. ) II ) 12 JOHN E. POTTER, ) ) 13 Real Party in Interest. ) 14 --------------------------~> 15 INTRODUCTION 16 This matter came before the Honorable Alberto C. Lamorena, III, on a 17 Order to Show Cause. Attorney Thomas Fisher represented Guam Housin 18 Corporation. Attorney Daniel Somerfleck represented Real Party in Interest Joh 19 Potter. The Court now issues its Decision and Order. 20 FACTUAL HISTORY 21 John Potter began working at the Guam Housing Corporation ("GHC") i
22 April of 1994. On January 24, 2013, he received a Notice of Proposed Adverse
23 Action for violation of the GHC Personnel Rules and Regulations.
24 subsequently terminated as an employee effective February 6, 2013. Potter the filed an appeal to the Civil Service Commission ("CSC"). On July 30, 2013, the Civi 25 Service Commission issued a Decision and Judgment. 26 In the Decision and Judgment, the Commission wrote the following: 27 Because the Notice of Final Adverse Action fails to provide the 28 Employee notice of the factual basis for the Final Adverse Action the Commission is without jurisdiction and the adverse action must 2 be voided.
3 Fisher Decl., Ex. B p.3. After finding that it had no jurisdiction, the Commissio
4 proceeded to issue the following orders:
5 a) That the Employee shall be immediately reinstated to his position as a Senior Tenant Relations Advisor with the Guam Housing 6 Corporation; b) Employee shall receive back pay for all wages withheld from 7 Employee during the period from termination on February 06, 8 2013 until he is reinstated; c) Employee shall be credited with all sick leave and annual leave 9 that he would have accrued during the period from termination on 10 February 06, 2013 until he is reinstated. d) Management shall deduct Employee's retirement contribution 11 from his back pay and then pay both Employee's and 12 Management's contributions to the Government of Guam Retirement Fund during the period from termination on February 13 06, 2013 until he is reinstated. e) Employee shall recover his reasonable attorney's fees and costs 14 pursuant to 4 G.C.A. § 4406.1. 15 Id. at p.4. 16 On August 27, 2013, Guam Housing Corporation filed a Petition for Judicia 17 Review, citing 7 G.C.A. § 3105 and 4 G.C.A. § 4406 as the basis for this Court' 18 jurisdiction. In the Petition, GHC seeks judicial review of the Decision an 19 Judgment as to 1) whether Mr. Potter's receipt of notice, and his actual notice ofth 20 circumstances leading to his termination, was sufficient; and 2) whether the Civi 21 Service Commission may enter orders in an Appeal where it lacks jurisdiction. 22 Additionally, the Petition calls for a reversal of the CSC's Decision and Judgment. 23 On September 9, 2013, Potter filed an Answer to the Petition. 24 challenges this Court's jurisdiction over the matter. He argues that GHC has faile 25 to cite the proper jurisdictional basis, that GHC has failed to state the fact 26 supporting jurisdiction in violation of CVR 10.1, and that this Court should dismis 27 the petition pursuant to Rule 12(h)(3) of the Guam Rules of Civil Procedure.
28 Additionally, Potter requested an Order to Show Cause as to why the CSC's order
2 should not be enforced. An Order to Show Cause was issued by this Court o 2 September 12, 2013. 3 On September 17, 2013, Petitioner filed a Reply to Potter's Answer as well a 4 an Opposition to the Request for Order to Show Cause. 5 jurisdictional bases have been properly pleaded and challenges Potter's pleadings i 6 that the Court should disallow any answer or Order to Show Cause. Afte
7 considering the filings and arguments, it is the Decision of this Court that the
8 Petition should be dismissed for the reasons set forth below.
9 DISCUSSION I. Subject Matter Jurisdiction. 10 The process governing judicial review of a decision by the CSC has develope II in an ad hoc manner on Guam. See Carlson v. Perez, 2007 Guam 6 ~,! 62-64. A 12 such, these proceedings present particularly murky waters to navigate. 13 September 17, 2013 Reply, GHC challenges the jurisdictional arguments made i 14 Potter's September 9, 2013 Answer. Indeed, GHC challenges whether an Answer i 15 actually allowed in these proceedings. Nonetheless, Potter raises issue with thi 16 Court's subject matter jurisdiction. 17 Subject matter jurisdiction may be raised by a party at any time and whe 18 the court finds that it lacks jurisdiction it therefore has no power to hear o 19 determine the case and it must dismiss the action. Guam R. Civ. P. 12(h)(3); In re 20 Department of Agriculture v. Civil Service Comm., 2009 Guam 19 ~ 25. 21 A writ of review "may be granted by any court, when an inferior tribunal, 22 board, or officer, exercising judicial functions, has exceeded [its] jurisdiction and 23 there is no appeal ... [or] plain, speedy, or adequate remedy" available to the 24 petitioner. Id. at ,!11 (quoting 7 G.C.A. § 31102). The review upon this writ cannot 25 be extended further than to determine whether the inferior tribunal, board, or
26 officer has regularly pursued the authority of such tribunal, board, or officer. 7
27 G.C.A. § 31108.
28 A writ of mandate "may be issued by any court to ... any inferior tribunal, corporation, board, or person to compel the performance of an act [that] the law 3 specifically enjoins ... or to compel the admission of a party to the use and 2 enjoyment of a right or office to which [such party] is entitled[.]" DCK at,[ 11 3 (quoting 7 G.C.A. § 31202). 4 The proper way for classified employees of the government of Guam or any of 5 its instrumentalities, corporations or agencies to utilize the right of judicial review 6 of CSC decisions is by filing a "Petition for Judicial Review." 2007 Guam 6 ,[ 65.
7 However, "the court is not constrained by the formal denomination of a writ in
8 determining what procedures and remedies to actually invoke, but rather is guided
9 by the contents of the petition and the particular relief sought." DCK Pacific Guam, LLC v. Morrison, 2010 Guam 16 ~ 17. 10 Here, GHC puts forth the following questions: 1) whether Mr. Potter's receipt II of notice, and his actual notice of the circumstances leading to his termination, was 12 sufficient; and 2) whether the Civil Service Commission may enter orders in an 13 Appeal where it lacks jurisdiction. Further, the Petition calls for a reversal of the 14 CSC's Decision and Judgment. Thus, the petition brings into question whether the 15 CSC exceeded its jurisdiction, a proper question under a writ of review. Therefore, 16 this Court's jurisdiction is proper. 17 II. Order to Show Cause. 18 On September 9, 2013, Potter requested for an Order to Show Cause as to 19 why the decision of the CSC's orders should not be enforced. This Court issued the 20 Order on September 12, 2013. While neither party has sought a stay in these 21 proceedings, the Order to Show Cause as to the enforcement of the CSC's judgment 22 below calls for a stay analysis. 23 A stay is an exercise ofjudicial discretion. Virginian Ry. Co. v. U.S., 272 U.S 24 658, 672-73 (1926). The party requesting a stay bears the burden of showing that 25 the circumstances justify an exercise of that discretion. See Nken v. Holder, 556
26 U.S. 418 (2009)(quoting Clinton v. Jones, 520 U.S. 681 (1997)). Four criteria are
27 relevant in considering whether to issue a stay of an administrative agency pending
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IN THE SUPERIOR COURT OF GUAM 2
3 ) GUAJVI HOUSING CORPORATION, ) CASE NO. SP0119-13 4 ) 5 Petitioner, ) ) 6 DECISION AND ORDER V. ) ON ORDER TO SHOW CAUSE 7 ) GUAM CIVIL SERVICE ) 8 ) COMMISSION, 9 ) Respondent, ) 10 ) V. ) II ) 12 JOHN E. POTTER, ) ) 13 Real Party in Interest. ) 14 --------------------------~> 15 INTRODUCTION 16 This matter came before the Honorable Alberto C. Lamorena, III, on a 17 Order to Show Cause. Attorney Thomas Fisher represented Guam Housin 18 Corporation. Attorney Daniel Somerfleck represented Real Party in Interest Joh 19 Potter. The Court now issues its Decision and Order. 20 FACTUAL HISTORY 21 John Potter began working at the Guam Housing Corporation ("GHC") i
22 April of 1994. On January 24, 2013, he received a Notice of Proposed Adverse
23 Action for violation of the GHC Personnel Rules and Regulations.
24 subsequently terminated as an employee effective February 6, 2013. Potter the filed an appeal to the Civil Service Commission ("CSC"). On July 30, 2013, the Civi 25 Service Commission issued a Decision and Judgment. 26 In the Decision and Judgment, the Commission wrote the following: 27 Because the Notice of Final Adverse Action fails to provide the 28 Employee notice of the factual basis for the Final Adverse Action the Commission is without jurisdiction and the adverse action must 2 be voided.
3 Fisher Decl., Ex. B p.3. After finding that it had no jurisdiction, the Commissio
4 proceeded to issue the following orders:
5 a) That the Employee shall be immediately reinstated to his position as a Senior Tenant Relations Advisor with the Guam Housing 6 Corporation; b) Employee shall receive back pay for all wages withheld from 7 Employee during the period from termination on February 06, 8 2013 until he is reinstated; c) Employee shall be credited with all sick leave and annual leave 9 that he would have accrued during the period from termination on 10 February 06, 2013 until he is reinstated. d) Management shall deduct Employee's retirement contribution 11 from his back pay and then pay both Employee's and 12 Management's contributions to the Government of Guam Retirement Fund during the period from termination on February 13 06, 2013 until he is reinstated. e) Employee shall recover his reasonable attorney's fees and costs 14 pursuant to 4 G.C.A. § 4406.1. 15 Id. at p.4. 16 On August 27, 2013, Guam Housing Corporation filed a Petition for Judicia 17 Review, citing 7 G.C.A. § 3105 and 4 G.C.A. § 4406 as the basis for this Court' 18 jurisdiction. In the Petition, GHC seeks judicial review of the Decision an 19 Judgment as to 1) whether Mr. Potter's receipt of notice, and his actual notice ofth 20 circumstances leading to his termination, was sufficient; and 2) whether the Civi 21 Service Commission may enter orders in an Appeal where it lacks jurisdiction. 22 Additionally, the Petition calls for a reversal of the CSC's Decision and Judgment. 23 On September 9, 2013, Potter filed an Answer to the Petition. 24 challenges this Court's jurisdiction over the matter. He argues that GHC has faile 25 to cite the proper jurisdictional basis, that GHC has failed to state the fact 26 supporting jurisdiction in violation of CVR 10.1, and that this Court should dismis 27 the petition pursuant to Rule 12(h)(3) of the Guam Rules of Civil Procedure.
28 Additionally, Potter requested an Order to Show Cause as to why the CSC's order
2 should not be enforced. An Order to Show Cause was issued by this Court o 2 September 12, 2013. 3 On September 17, 2013, Petitioner filed a Reply to Potter's Answer as well a 4 an Opposition to the Request for Order to Show Cause. 5 jurisdictional bases have been properly pleaded and challenges Potter's pleadings i 6 that the Court should disallow any answer or Order to Show Cause. Afte
7 considering the filings and arguments, it is the Decision of this Court that the
8 Petition should be dismissed for the reasons set forth below.
9 DISCUSSION I. Subject Matter Jurisdiction. 10 The process governing judicial review of a decision by the CSC has develope II in an ad hoc manner on Guam. See Carlson v. Perez, 2007 Guam 6 ~,! 62-64. A 12 such, these proceedings present particularly murky waters to navigate. 13 September 17, 2013 Reply, GHC challenges the jurisdictional arguments made i 14 Potter's September 9, 2013 Answer. Indeed, GHC challenges whether an Answer i 15 actually allowed in these proceedings. Nonetheless, Potter raises issue with thi 16 Court's subject matter jurisdiction. 17 Subject matter jurisdiction may be raised by a party at any time and whe 18 the court finds that it lacks jurisdiction it therefore has no power to hear o 19 determine the case and it must dismiss the action. Guam R. Civ. P. 12(h)(3); In re 20 Department of Agriculture v. Civil Service Comm., 2009 Guam 19 ~ 25. 21 A writ of review "may be granted by any court, when an inferior tribunal, 22 board, or officer, exercising judicial functions, has exceeded [its] jurisdiction and 23 there is no appeal ... [or] plain, speedy, or adequate remedy" available to the 24 petitioner. Id. at ,!11 (quoting 7 G.C.A. § 31102). The review upon this writ cannot 25 be extended further than to determine whether the inferior tribunal, board, or
26 officer has regularly pursued the authority of such tribunal, board, or officer. 7
27 G.C.A. § 31108.
28 A writ of mandate "may be issued by any court to ... any inferior tribunal, corporation, board, or person to compel the performance of an act [that] the law 3 specifically enjoins ... or to compel the admission of a party to the use and 2 enjoyment of a right or office to which [such party] is entitled[.]" DCK at,[ 11 3 (quoting 7 G.C.A. § 31202). 4 The proper way for classified employees of the government of Guam or any of 5 its instrumentalities, corporations or agencies to utilize the right of judicial review 6 of CSC decisions is by filing a "Petition for Judicial Review." 2007 Guam 6 ,[ 65.
7 However, "the court is not constrained by the formal denomination of a writ in
8 determining what procedures and remedies to actually invoke, but rather is guided
9 by the contents of the petition and the particular relief sought." DCK Pacific Guam, LLC v. Morrison, 2010 Guam 16 ~ 17. 10 Here, GHC puts forth the following questions: 1) whether Mr. Potter's receipt II of notice, and his actual notice of the circumstances leading to his termination, was 12 sufficient; and 2) whether the Civil Service Commission may enter orders in an 13 Appeal where it lacks jurisdiction. Further, the Petition calls for a reversal of the 14 CSC's Decision and Judgment. Thus, the petition brings into question whether the 15 CSC exceeded its jurisdiction, a proper question under a writ of review. Therefore, 16 this Court's jurisdiction is proper. 17 II. Order to Show Cause. 18 On September 9, 2013, Potter requested for an Order to Show Cause as to 19 why the decision of the CSC's orders should not be enforced. This Court issued the 20 Order on September 12, 2013. While neither party has sought a stay in these 21 proceedings, the Order to Show Cause as to the enforcement of the CSC's judgment 22 below calls for a stay analysis. 23 A stay is an exercise ofjudicial discretion. Virginian Ry. Co. v. U.S., 272 U.S 24 658, 672-73 (1926). The party requesting a stay bears the burden of showing that 25 the circumstances justify an exercise of that discretion. See Nken v. Holder, 556
26 U.S. 418 (2009)(quoting Clinton v. Jones, 520 U.S. 681 (1997)). Four criteria are
27 relevant in considering whether to issue a stay of an administrative agency pending
28 appeal: A) the likelihood of success on the merits; B) irreparable injury if a stay is denied; C) substantial injury to the party opposing a stay if one is issued; and D) the 4 public interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The four 2 considerations are factors to be balanced and not prerequisites to be met. 3 DeLorean Motor Company, 755 F.2d 1223 (6th Cir. 1985). 4 A. Likelihood of Success on the Merits. 5 As discussed supra, the CSC wrote that it lacked jurisdiction, yet issued
6 Orders upon GHC. "[A] decision [of an administrative body] may be subject to such
7 attack where it is absolutely void; and, since the jurisdiction of an administrative
8 board or agency consists of the powers granted it by statute, a determination is void and subject to collateral attack where it is made either without statutory power or 9 in excess thereof. Accordingly, administrative decisions may be collaterally attacked 10 as void for want of jurisdiction." Matter of Foy v. Schechter, 1 N.Y.2d 604, 612 II (1956). Jurisdiction is unquestionably essential to the validity of any proceeding 12 undertaken by a public administrative tribunal, without which its actions are void. 13 Antrim v. Civil Service Commission of City of Des Moines, 261 Iowa 396, 401 (Iowa 14 1967). 15 Here, the CSC sought to issue orders after stating that it lacked jurisdiction. 16 Any orders issued where there is a lack of jurisdiction are nullities. There is a 17 strong likelihood of success on the merits for GHC. 18 B. Irreparable Injury if Stay is Denied. 19 "A determination of irreparable harm typically focuses on categories of harm 20 that do not easily lend themselves to monetary compensation." Sule v. Guam Board 21 ofExaminers for Dentistry, et al., 2011 Guam 5 ~ 12. If a stay is not granted, GHC 22 will be required to follow the orders of the CSC. While most of the orders deal 23 directly with compensation, the orders also call for reinstating Potter. This 24 presents legal and logistical consequences to GHC, especially if the CSC is found to 25 have exceeded its jurisdiction with the orders. As such, this factor supports
26 granting a stay.
27 C. Substantial Injury to the Party Opposing a Stay if Issued.
28 The CSC has issued its orders which seek to reinstate Potter and give all benefits to him dating back to February 6, 2013. A stay pending review will result 5 only in delay of the CSC's orders if they survive review. The substantial harm to 2 Potter here is not enough to deny a stay. 3 D. Public Interest. 4 Outside of the public interest in seeing fair adjudication at the Civil Service 5 Commission, very little in this matter raises a public interest argument. This factor 6 does little to affect the stay analysis under these circumstances.
7 CONCLUSION
8 This Court finds that enforcement of CSC's Decision and Judgment pendin review would be improper under the circumstances found here. This Decision i 9 limited only to the Order to Show Cause and does not affect the final outcome of th 10 Petition for Judicial Review. A Scheduling Conference is set for February 10, 201 11 at 2:00p.m. 12
13 So ORDERED this 22nd day of January, 20 14
16 0 C. LAMORENA 17