9th Circuit Court dismisses Fund’s appeal

The U.S. Court of Appeals for the Ninth Circuit has dismissed the NMI Retirement Fund’s bid to reverse a U.S. District Court order to deny the Fund’s motion to dismiss the lawsuit filed by unnamed retirees.

The Ninth Circuit judges ordered the Fund and its board to pay for the costs incurred in the appeal by two unnamed retirees represented by attorney Bruce Jorgensen.

The judges ruled that the U.S. District Court for the NMI’s Jan. 25 (dismissal) order did not show any intention by the district judge that it will be the court’s final act in the matter.

“[On] the contrary, the possibility of further action by the district court was apparent, given its concerns about the pace of post-judgment proceedings in the CNMI Superior Court,” the Ninth Circuit judges said in their four-page order, a copy of which was filed in the District Court yesterday.

Citing precedent, the Ninth Circuit judges said a district court’s decision is appealable only when the decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

A final judgment, the judges said, is one that is “a full adjudication of the issues at bar, and clearly evinces the judge’s intention that it be the court’s final act in the matter.”

The judges said that the Fund and its board further contend that the district court’s issuance of a limited 60-day stay of proceedings in the lawsuit is an appealable final order.

The judges said the district court clearly foresaw, and indeed intended on issuance, that proceedings would resume after the temporary stay expired.

The judges pointed out the district court did not determine any disputed question or resolve any issue. In fact, the judges said, it is clear that the district court intended to continue the litigation after gauging the progress of the post-judgment proceedings in the Superior Court.

“Thus, the temporary stay entered here does not fall within the limited class of decisions appealable under the collateral order exception,” the judges said.

The District Court denied the Fund’s and its board’s motion to dismiss the lawsuit filed by attorney Jorgensen on behalf of two unnamed retirees against Gov. Benigno R. Fitial and the Fund over alleged non-payment of their retirement benefits.

The Fund and the board appealed to the Ninth Circuit.

U.S. District Court for the NMI visiting judge William Q. Hayes also denied attorney Jorgensen’s motion to lift the court’s order that stayed the proceedings in his clients’ lawsuit.