Court dismisses DPS court action in ex-cop’s appeal of his termination

Superior Court Associate Judge David A. Wiseman granted Monday terminated police officer Flor Estabillo’s motion to dismiss the Department of Public Safety’s court action over his appeal.

Wiseman ruled that the court is not persuaded by DPS’ argument that the Civil Service Commission’s Aug. 11, 2014, ruling on jurisdiction created a legal right in DPS to perform under the Northern Mariana Islands Administrative Code.

Wiseman said the court does not find that CSC’s Aug. 11 order was a final agency action under the Commonwealth Administrative Procedure Act as a matter of law.

The Aug. 11 order refers to CSC’s ruling that denied DPS’ motion to dismiss Estabillo’s appeal based on lack of jurisdiction.

Wiseman also determined that DPS’ petition for judicial review does not plead sufficient facts to show that the underlying agency action was a final agency action as defined in the Commonwealth Administrative Procedure Act.

According to court records, Estabillo appealed with CSC the decision by DPS to terminate him on June 4, 2014, for unlawful possession of controlled substances and for other reasons.

DPS, through the Office of the Attorney General, moved to dismiss the appeal, asserting that CSC has no jurisdiction over Estabillo’s termination,

CSC, however, disagreed, saying it has jurisdiction in the matter. The commission denied DPS’ motion to dismiss Estabillo’s appeal.

This prompted DPS to bring the issue to Superior Court by filing a petition for judicial review. DPS asked the court reverse the commission’s finding that it had jurisdiction over Estabillo’s appeal.

In a motion to dismiss DPS’ petition for judicial review, Estabillo, through counsel Brien Sers Nicholas, argued that the court does not have jurisdiction to rule on the merits of DPS’ petition because the commission’s Aug. 11, 2014 order asserting jurisdiction was not final agency action.

Nicholas also argued that DPS failed to exhaust its administrative remedies.

In granting Estabillo’s motion to dismiss, Wiseman said no language in the relevant sections of the Northern Mariana Islands Administrative Code would inform the court that, if DPS’ allegations of fact were true, it would lead to the legal conclusion that the commission’s Aug. 11, 2014, ruling on jurisdiction was a statement of the agency’s final position on the legal rights of the parties.

Wiseman said NMIAC provides that “the commission shall render its findings of fact and final decision in writing with service on all parties.”

“Accordingly, until the commission issues the referenced final decision, the commission’s ruling is tentative or interlocutory,” the judge said.

In fact, Wiseman noted, the commission’s Aug. 11, 2014, ruling on jurisdiction appears to be made without prejudice, giving more weight to the tentative or interlocutory nature of the order.