FSM Government files motion to dismiss claims that Oliver’s civil rights were violated and other claims

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Published: Monday, 30 November -0001 00:00

Written by Bill Jaynes

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By Bill Jaynes

The Kaselehlie Press

October 19, 2020

FSM—FSM Government attorneys have filed a motion to dismiss the civil action (CA 2020-018) filed by Norleen Oliver against the FSM Government, the Secretary for the Department of Justice, and two National Police officers. The named individuals were sued both personally and in their official capacities.  They filed their motion to dismiss on October 19.  According to Marstella Jack, attorney for Oliver, she has until Friday November 6 to file a motion in opposition to the motion to dismiss and is currently working on that motion.

Oliver filed her suit in response to actions the government took regarding a planned road project funded by a Congress special projects law.  That civil action contained 10 causes of action against the government and its operators, some of them stemming from the confiscation of her vehicle which she has admitted she used to block the road that goes through the land where she lives in Ipwal, Sokehs.

In its motion, the government describes the current state of the road to the First Lady’s family home as, “still being unpaved with deep potholes and ditches in several places (that) continue to cause inconvenience to the road users. It is a huge security risk to the President, the first family, and their security detail.”

The government’s motion to dismiss says that the civil action should be dismissed for “failure to state a claim upon which relief can be granted, and for failure to implead an indispensable party. It says that the suit

should also have named the contractor awarded the contract for the road because that company has a financial interest in the road project going forward.

The FSM Government argues that instead of blocking the road, she could have gone to the court to stop the pavement project. It essentially says that because she didn’t, she had no other recourse and certainly didn’t have the right to block access to the road. 

Oliver did make her objections known when she wrote FSM President David Panuelo but she never received a response to that letter.

Because the FSM Government filed criminal charges against Oliver, the motion to dismiss accuses her civil action as a kind of “forum shopping” for a better outcome from a different set of hearings. It also argues that Oliver’s causes of action constitute “collateral estoppel”, a common law doctrine that prevents a person from relitigating an issue that has already been ruled on by a court. It’s an unusual argument to use when no Court has yet ruled on any of the matters brought up in Oliver’s civil action though in fact, the same set of circumstances are currently being heard in the criminal matter against Oliver.  Still, that case is far from decided.

The motion to dismiss states that Oliver’s civil rights were not violated when the Attorney General ordered that her car be removed from the driveway allegedly blocking access by the First Lady and her security detail from the upper unpaved road that led to her home, nor was it an abuse of power. The motion to dismiss said that the AG and the police officers were in their legal rights.  “The Attorney General of the FSM having the duty to enforce the law of this country had a right under the circumstances to stop the Plaintiff from further committing the deprivation of civil rights. And since the deprivation of rights is considered a national crime defined and punished by the FSM Code, the Attorney General and the National Police had legal right-in fact, a duty-to take immediate, safe, and decisive action and to detain the evidence of the crime, if necessary,” it said. Similar claims were made in response to others of the causes of actions in Oliver’s lawsuit.

“The effort displayed by the National Police under the circumstances to settle the matter peacefully and amicably, which the Plaintiff chose to ignore, would negate the bare claim that Plaintiff was deprived of due process,” the motion to dismiss said.

On the claims of trespass in Oliver’s civil action, the motion to dismiss said that it had documentation that Oliver is not the registered owner of the land. “Defendants are aware that evidence of ownership is not absolutely necessary in a trespass case,” is said. “Other evidence could demonstrate Plaintiff’s possessory right. In this vein, the Plaintiff’s family has a lease of a dwelling unit situated on the parcel of land of Andon Augustine. The Plaintiff’s husband and Dakiko Augustine, the surviving spouse of Andon Augustine, executed this lease. The lease covering a period from January 2015 up to December 2020 does not include the access road. The National Government paid the housing allowance for the Plaintiffs husband on the basis of the lease.”

“It appears that Plaintiff is carefully avoiding making a categorical claim of ownership or possessory rights over the location of the access road in question,” the motion to dismiss continued. “Indeed, only recently (sic) that the Pohnpei Public Land was requested to conduct ‘as-built’ survey on this area in Sokehs in order to determine the adjoining lots that this access road traverses. The survey shows an existing road covering a few parcels of land none of which was titled to the Plaintiff.”

The government’s motion to dismiss also vehemently denied that there was any theft of funds involved in the road project. “Plaintiff failed to demonstrate how the public project is a wrongful use of public funds given that the access road is admittedly serving the community including Plaintiff’s family and the landowners of landlocked properties in the vicinity where the access road goes,” it says.

The plaintiff claims that the road goes only to the First Lady’s family home.

The motion to dismiss denies that there was any intentional inflection of emotional distress when the National Police officers brought Oliver’s car to the impound lot at the National Government. It said that officers were preserving evidence in a national crime when they did so and that action did not amount to abuse.

The government also argued that suing the individual defendants in their personal capacities was inappropriate.  “Defendants Gallen, Johnna and Joseph acted not as private individuals but as law enforcement officers of the nation,” it said.

Legal filings in Oliver’s civil action will likely continue for quite some time unless the court agrees that it should grant the motion to dismiss after also considering the Plaintiff’s motion in opposition to that motion to dismiss, assuming that the motion in opposition is filed by the Court’s deadline for submission.