Cl " Decision and Order SPOO34-09 FILE Tet orial Law Library 'lUll JfJl - Q AM 10: 35 2
3 IN THE SUPERIOR COURT OF GUAM 4
5 ) ELEUTERIOJ. MESA, ) SPECIAL PROCEEDING 6 CASE # SP0034-09 ) 7 Petitioner, ) ) 8 vs. ) DECISION AND ORDBR ON PETITION ) FOR JUDICIAL REVIEW 9 GUAM CIVIL SERVICE COMMISSION ) \0 ) Respondent ). II ) 12 md ) ) 13 GUAM PUBLIC SCHOOL SYSTEM, ) ) 14 Real Party in Interest. ) IS ----------------------------) 16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena, IlIon July 8, 2011, 0 18 Petitioner Mesa's Petition for Judicial Review. Attorney G. Patrick Ceville represente 19 Petitioner, Eleuterio Mesa. Attorney Sophia Smtos Diaz represented Respondent, Guam Civi 20 Service Commission ("CSC"). Attorney Rebecca Perez Smto Tomas represented Real Party 21 Interest, Guam Public School System ("GPSS''). Having considered the parties' arguments m 22 related law, the Court now issues its Decision md Order. 23 FACTUAL HISTORY 24 Mesa, a principal, is a classified employee with the Guam Public School System 25 Following a dispute between Mesa md GPSS Mmagement relating to m off islmd trip taken b 26 students md two teachers at Mesa's school, GPSS issued a notice of adverse action to Mesa. 0 27 July 17, 2006, Mesa received a Final Notice of Adverse Action demoting him from his positio 28 ( ( Decision and Order SP0034-09
as Principal to the position of Teacher. Mesa appealed the final adverse action with CSC
2 Following a hearing, CSC commissioners deliberated in open session. The commissioners vote
3 5-1 in favor of Mesa. The Chairman, who provided the final vote in favor of Mesa, suggeste
4 that Mesa be reinstated and restored all benefits; but the Chairman also suggested that Mesa b
5 denied back pay. The other commissioners agreed with the Chairman's recommendation.
6 In a written Decision and Judgment issued on January 22,2009, CSC found by a vote 0
7 5-1 that "Management failed to give the Employee his ability to properly respond to the Notic
8 of Adverse Action. Management therefore violated the rules to be available to hear the answe
9 orally or in writing or both." Mesa v. Guam Public School System, Decision and Judgment
10 Adverse Action Appeal Case No. 0608-AA26 (Jan. 22, 2009). However, CSC stated that i
II would modify the action
12 by allowing the Employee to become Principal effective on the date of [Management's] 13 decision (December 16, 2008), with any benefits for that position to be restored. However, no back pay is to be awarded. Further, pursuant to 4 GCA § 4406.1 th 14 Employee is awarded his attorney fees. 15 Id. Mesa filed the present Petition for Judicial Review challenging CSC's modification of th 16 adverse action and denial of back pay. 17 DISCUSSION 18
19 In his Petition, Mesa presents two issues for this court's consideration. First, Mesa argue
20 that CSC's determination that GPSS failed to follow its own adverse action procedures require
21 that CSC declare the adverse action void and reinstate Mesa with full benefits and back pay
22 Second, Mesa argues that CSC lacked the authority to modify the adverse action by denyin
23 Mesa back pay despite CSC's ruling in favor of Mesa. This Court agrees with Mesa's firs
24 argument that CSC's determination that GPSS failed to follow its own procedures rendered th
25 adverse action void and that Mesa was, at that point, entitled to all benefits and back pay.
26 ////
27 / // /
28 ////
2 ( ( Decision and Order SP0034-09
I. Jurisdiction 2
3 As a threshold matter, CSC argues that the Petition for Judicial Review is untimely an 4 that this Court therefore lacks jurisdiction to hear the matter. This Court disagrees. 5 A CSC decision is "final, but subject to judicial review." 4 GUAM CODE ANN. § 4406. 6 (2005) A party seeking review of a CSC decision must file a petition for judicial review withi 7 thirty days from the date the challenged decision is issued. Perez v. Judicial Council of Guam 8 2002 Guam 12 ~ 12. In the present case, CSC issued its decision on January 22,2009. The thirt 9 day deadline thus fell on February 21, 2009, a Saturday. Mesa filed his Petition for Judicia to Review on Monday, February 23. II Petitioner correctly states that neither CSC's internal rules nor case law addressing th 12 timing of petitions for judicial review govern the specific scenario presented in this case in whic 13 the filing deadline for the petition falls on a weekend. In determining the applicable rul 14 regarding the filing of a petition for judicial review the analysis begins with the Guam Civi 15 Rules, which apply to special proceedings. CVR 1.1. Civil Rule 6.1 provides that "Guam Rule 0 16 Civil Procedure 6(a) controls the manner for computing any period of time prescribed or allowe 17 by these Rules." Rule 6(a) of the Guam Rules of Civil Procedures provides "[i]n computing an 18 period of time prescribed or allowed by these rules, by order of court, or by any applicabl 19 statute ... [t]he last day of the period so computed shall be included, unless it is a Saturday, 20 Sunday, a legal holiday ... in which event the period runs until the end of the next day which i 21 not one of the aforementioned days." GUAM R. CIV. PROC. 6(a). Because the thirty day deadlin 22 fell on a Saturday, Mesa had until February 23,2009 to file a timely Petition for Judicial Review. 23 Mesa filed his Petition on February 23, 2009. The petition was therefore timely and this Cou 24 has jurisdiction over the matter under title 7, sections 3105 and 4104 and title 4, section 44060 25 the Guam Code. 26 1111 27 1111 28 / II/ Decision and Order c ( SP0034-09
II. Review of CSC's Decision
2 a. Standard of Review
3 In general, an agency's determination is conclusive if it is "in accordance with the la 4 and supported by substantial evidence." 5 G.C.A. § 9239 (Administrative Adjudication Law)' 5 Sule v. Guam Board of Dental Examiners, 2008 Guam 20 ~ 10. An agency's interpretation of it 6 own regulations is controlling unless that interpretation is clearly erroneous. Thomas Jefferso 7 Univ. v. Shalala, 512 U.S. 504, 512, 114 S. ct. 2381, 2386, 129 L. Ed. 2d 405 (1994). "[A] 8 decision not in accordance with the law or supported by substantial evidence shall be subject t 9 an order of the court directing the agency to take proper action." Sule, 2008 Guam 20 ~ 10; 5 10 G.c.A. § 9240. II
12 b. The Procedural Defect 13 In the present case, the petitioner argues that once CSC determined that GPSS ha 14 violated its own regulations by denying petitioner his right to answer the adverse action i 15 person, CSC should have declared the adverse action void. Indeed, "[i]t is well-settled tha 16 agencies are bound to follow regulations they promulgate." Podgorney v. Barnhart, 214 F. App' 17 648,649 (9th Cir. 2006) (citing Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir 18 1998)). CSC argues, however, that under its own procedural rules it was authorized to continu 19 the hearing and issue a decision despite its finding that the adverse action involved a procedura 20 defect. Rule 11.7.3 ofCSC's rules governing adverse action appeals! provides: 21
22 Rule 11.7.3 PROCEDURAL DEFECT 23
25 IThe parties dispute which version of the CSC Rules Governing Adverse Action Appeals applie at the CSC hearing. This Court's decision does not rely on the substance of the disputed rule an 26 therefore this Court declines to discuss the issue in greater detail.
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Cl " Decision and Order SPOO34-09 FILE Tet orial Law Library 'lUll JfJl - Q AM 10: 35 2
3 IN THE SUPERIOR COURT OF GUAM 4
5 ) ELEUTERIOJ. MESA, ) SPECIAL PROCEEDING 6 CASE # SP0034-09 ) 7 Petitioner, ) ) 8 vs. ) DECISION AND ORDBR ON PETITION ) FOR JUDICIAL REVIEW 9 GUAM CIVIL SERVICE COMMISSION ) \0 ) Respondent ). II ) 12 md ) ) 13 GUAM PUBLIC SCHOOL SYSTEM, ) ) 14 Real Party in Interest. ) IS ----------------------------) 16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena, IlIon July 8, 2011, 0 18 Petitioner Mesa's Petition for Judicial Review. Attorney G. Patrick Ceville represente 19 Petitioner, Eleuterio Mesa. Attorney Sophia Smtos Diaz represented Respondent, Guam Civi 20 Service Commission ("CSC"). Attorney Rebecca Perez Smto Tomas represented Real Party 21 Interest, Guam Public School System ("GPSS''). Having considered the parties' arguments m 22 related law, the Court now issues its Decision md Order. 23 FACTUAL HISTORY 24 Mesa, a principal, is a classified employee with the Guam Public School System 25 Following a dispute between Mesa md GPSS Mmagement relating to m off islmd trip taken b 26 students md two teachers at Mesa's school, GPSS issued a notice of adverse action to Mesa. 0 27 July 17, 2006, Mesa received a Final Notice of Adverse Action demoting him from his positio 28 ( ( Decision and Order SP0034-09
as Principal to the position of Teacher. Mesa appealed the final adverse action with CSC
2 Following a hearing, CSC commissioners deliberated in open session. The commissioners vote
3 5-1 in favor of Mesa. The Chairman, who provided the final vote in favor of Mesa, suggeste
4 that Mesa be reinstated and restored all benefits; but the Chairman also suggested that Mesa b
5 denied back pay. The other commissioners agreed with the Chairman's recommendation.
6 In a written Decision and Judgment issued on January 22,2009, CSC found by a vote 0
7 5-1 that "Management failed to give the Employee his ability to properly respond to the Notic
8 of Adverse Action. Management therefore violated the rules to be available to hear the answe
9 orally or in writing or both." Mesa v. Guam Public School System, Decision and Judgment
10 Adverse Action Appeal Case No. 0608-AA26 (Jan. 22, 2009). However, CSC stated that i
II would modify the action
12 by allowing the Employee to become Principal effective on the date of [Management's] 13 decision (December 16, 2008), with any benefits for that position to be restored. However, no back pay is to be awarded. Further, pursuant to 4 GCA § 4406.1 th 14 Employee is awarded his attorney fees. 15 Id. Mesa filed the present Petition for Judicial Review challenging CSC's modification of th 16 adverse action and denial of back pay. 17 DISCUSSION 18
19 In his Petition, Mesa presents two issues for this court's consideration. First, Mesa argue
20 that CSC's determination that GPSS failed to follow its own adverse action procedures require
21 that CSC declare the adverse action void and reinstate Mesa with full benefits and back pay
22 Second, Mesa argues that CSC lacked the authority to modify the adverse action by denyin
23 Mesa back pay despite CSC's ruling in favor of Mesa. This Court agrees with Mesa's firs
24 argument that CSC's determination that GPSS failed to follow its own procedures rendered th
25 adverse action void and that Mesa was, at that point, entitled to all benefits and back pay.
26 ////
27 / // /
28 ////
2 ( ( Decision and Order SP0034-09
I. Jurisdiction 2
3 As a threshold matter, CSC argues that the Petition for Judicial Review is untimely an 4 that this Court therefore lacks jurisdiction to hear the matter. This Court disagrees. 5 A CSC decision is "final, but subject to judicial review." 4 GUAM CODE ANN. § 4406. 6 (2005) A party seeking review of a CSC decision must file a petition for judicial review withi 7 thirty days from the date the challenged decision is issued. Perez v. Judicial Council of Guam 8 2002 Guam 12 ~ 12. In the present case, CSC issued its decision on January 22,2009. The thirt 9 day deadline thus fell on February 21, 2009, a Saturday. Mesa filed his Petition for Judicia to Review on Monday, February 23. II Petitioner correctly states that neither CSC's internal rules nor case law addressing th 12 timing of petitions for judicial review govern the specific scenario presented in this case in whic 13 the filing deadline for the petition falls on a weekend. In determining the applicable rul 14 regarding the filing of a petition for judicial review the analysis begins with the Guam Civi 15 Rules, which apply to special proceedings. CVR 1.1. Civil Rule 6.1 provides that "Guam Rule 0 16 Civil Procedure 6(a) controls the manner for computing any period of time prescribed or allowe 17 by these Rules." Rule 6(a) of the Guam Rules of Civil Procedures provides "[i]n computing an 18 period of time prescribed or allowed by these rules, by order of court, or by any applicabl 19 statute ... [t]he last day of the period so computed shall be included, unless it is a Saturday, 20 Sunday, a legal holiday ... in which event the period runs until the end of the next day which i 21 not one of the aforementioned days." GUAM R. CIV. PROC. 6(a). Because the thirty day deadlin 22 fell on a Saturday, Mesa had until February 23,2009 to file a timely Petition for Judicial Review. 23 Mesa filed his Petition on February 23, 2009. The petition was therefore timely and this Cou 24 has jurisdiction over the matter under title 7, sections 3105 and 4104 and title 4, section 44060 25 the Guam Code. 26 1111 27 1111 28 / II/ Decision and Order c ( SP0034-09
II. Review of CSC's Decision
2 a. Standard of Review
3 In general, an agency's determination is conclusive if it is "in accordance with the la 4 and supported by substantial evidence." 5 G.C.A. § 9239 (Administrative Adjudication Law)' 5 Sule v. Guam Board of Dental Examiners, 2008 Guam 20 ~ 10. An agency's interpretation of it 6 own regulations is controlling unless that interpretation is clearly erroneous. Thomas Jefferso 7 Univ. v. Shalala, 512 U.S. 504, 512, 114 S. ct. 2381, 2386, 129 L. Ed. 2d 405 (1994). "[A] 8 decision not in accordance with the law or supported by substantial evidence shall be subject t 9 an order of the court directing the agency to take proper action." Sule, 2008 Guam 20 ~ 10; 5 10 G.c.A. § 9240. II
12 b. The Procedural Defect 13 In the present case, the petitioner argues that once CSC determined that GPSS ha 14 violated its own regulations by denying petitioner his right to answer the adverse action i 15 person, CSC should have declared the adverse action void. Indeed, "[i]t is well-settled tha 16 agencies are bound to follow regulations they promulgate." Podgorney v. Barnhart, 214 F. App' 17 648,649 (9th Cir. 2006) (citing Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir 18 1998)). CSC argues, however, that under its own procedural rules it was authorized to continu 19 the hearing and issue a decision despite its finding that the adverse action involved a procedura 20 defect. Rule 11.7.3 ofCSC's rules governing adverse action appeals! provides: 21
22 Rule 11.7.3 PROCEDURAL DEFECT 23
25 IThe parties dispute which version of the CSC Rules Governing Adverse Action Appeals applie at the CSC hearing. This Court's decision does not rely on the substance of the disputed rule an 26 therefore this Court declines to discuss the issue in greater detail. However, for purposes 0 clarity, this Court presumes that GPSS documents issued to its employees do not dictate whic 27 procedures govern at a CSC hearing. As such, this Court assumes that the applicable rule 28 governing the hearing were those currently adopted by CSC at the time of the hearing and not th outdated rules cited by GPSS. ( ( Decision and Order SP0034-09
If the CSC finds that the adverse action was procedurally defective because it violated personnel rules or law, it may void or revoke the adverse action as it 2 considers fair and equitable under the facts and circumstances of the action.
3 Civil Service Commission Rules of Procedure for Adverse Action Appeals 11.7.3 (effectiv 4 March 5 2002 to March 1, 2010) (attached as Ex. A, Dec!. of Sophia Santos Diaz Supp. Resp.' 5 CSC's Hearing Brief). This Court is not convinced by CSC's argument that this regulation is no 6 limited to the context ofCSC's own rules, but rather allows CSC to overlook a different agency' 7 violation of that agency's own procedural rules. However, even assuming that CSC' 8 interpretation is plausible and that the rule grants CSC discretion to proceed with a hearin 9 despite its finding of a procedural violation, CSC exceeded its discretion in this case. 10 While an agency may "relax or modify its procedural rules adopted for the orderl 11 transaction of business ... when ... the ends of justice require it," American Farm Lines v. 12 Black Ball Freight Serv., 397 U.S. 532, 539, 90 S.Ct. 1288, 1292-93, 25 L.Ed.2d 547 (1970 13 (citing NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764) (8th Cir. 1953)), where the agenc 14 regulations are "based on a defined procedure, even though generous beyond the requirement 15 that bind such agency, that procedure must be scrupulously observed." Vitarelli v. Seaton, 35 16 U.S. 535, 547, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) (Frankfurter, J., concurring)); Brown v. Civi 17 Service Com'n, Docket No. CV-85-008lA, 1984 WL 48861 (D. Guam App. Div. October 22 18 1984) (aff'd on other grounds, 818 F.2d 706 (9th Cir. 1987)) ("It is well settled that it is ofn 19 significance that the regulations are more generous than what the Constitution requires, the rule 20 must be scrupUlously adhered to"). Indeed, regulations that are "intended to protect the interest 21 of a party before the agency ... 'must be scrupulously observed.'" Sameena Inc. v. U.S. Ai 22 Force, 147 F.3d 1148 at 1153 (9th Cir. 1998) (quoting Vitarelli, 359 U.S. at 547,79 S.Ct. 968, 3 23 L.Ed.2d 1012 (1959) (Frankfurter, 1., concurring)); see also Violations b A encies of Thei 24 Own Regulations, 87 Harv. L. Rev. 629, 629-30 (1974) ("Agency violations of regulations whic 25 had been promulgated to benefit a party, by entitling him to a substantive benefit or exemption 0 26 to a procedural safeguard, have generally been invalidated by courts"). 27 In the present case, GPSS personnel regulations confer upon an employee who is th 28 subject of adverse action the opportunity to answer the charges in writing and in person .
.s. , . ( ORli;lNAL ( Decision and Order SP0034-09
Moreover, those regulations require that the acting official consider the employee's written an 2 oral answer prior to rendering a final adverse action. These requirements confer substantia 3 procedural protections upon an adversely affected employee prior to any final deprivation of 4 property interest and these regulations should have been scrupulously adhered to by GPSS 5 CSC's decision to proceed with a hearing on the merits after it had determined that thes 6 procedures had been violated was not in accordance with law. Once CSC determined that GPS 7 failed to comply with these regulations, CSC should have found that GPSS failed to effect 8 proper adverse action and that that the Final Notice of Adverse Action was void.
9 c. esc's Decision to Deny Back Pay 10
11 Having determined that the adverse action was void at the point at which es 12 determined that GPSS had violated its own procedures, this Court need not discuss esC' 13 decision to modify, rather than revoke, the adverse action after finding in favor of Mesa. 14 CONCLUSION 15
16 The esc determined that GPSS failed to abide by its own regulations grantin 17 substantial procedural benefits to employees wishing to challenge an adverse action. Based 0 18 CSC's finding that GPSS failed to allow Mesa to properly respond to the charges, CSC shoul 19 have determined that the Final Notice of Adverse Action was void. This Court concludes tha 20 CSC's Decision and Judgment is not in accordance with law and therefore reverses and remand 21 this matter to esc. Petitioner shall submit a judgment consistent with this Decision. 22
23 SO ORDERED this 4th day of January, 2012.
25 I 00 hercll\' rcrtil)' that the foregoing 26 / Is 9 full ;nd curred '-"I') of the AMORENAIII original on file in the" C of,the clerk of tilt Supeti~r C o[GUIII1I 27