DPS chief wants illegal OT suit dismissed

Department of Public Safety Commissioner Robert Guerrero wants the Superior Court to dismiss the lawsuit filed by CNMI Attorney General Edward Manibusan against him over the allegedly excessive overtime compensation he received from Super Typhoon Yutu recovery.

Guerrero, through his lawyer, Matthew T. Gregory, filed a motion to dismiss the OAG’s lawsuit against him because the claims alleged are outside the statute of limitations, and there are no affirmative facts pleaded showing an exception to the statute of limitations.

“Plaintiff’s complaint must be dismissed for being untimely under the CNMI statute of limitations pursuant to Rule 12(b)(6) of the Commonwealth Rules of Civil Procedure,” the lawyer said.

Because of this, Gregory said their motion to dismiss should be granted without leave to amend.

Gregory argued that the Commonwealth Code has a two-year statute of limitations in place for actions against the “director of Public Safety” for “any act or omission in connection with the performance of official duties.” In this case, Gregory said, the defendant is the commissioner of Public Safety, which is an identical position to the director of Public Safety.

“If the two-year statute of limitations applies in this case, then the complaint is untimely and must be dismissed. Plaintiff’s claims all center around the illegality of certain ‘emergency payments’ alleged to have been received by defendant. The complaint lays out the dates the defendant received typhoon emergency premium pay. The paragraph lists payments on Nov. 26, 2018; Dec. 21, 2018; Dec. 31, 2018; and Nov. 11, 2019. The complaint was filed on Feb. 1, 2022, more than three years after the payments,” Gregory said.

The lawyer added that aside from his position, that statute also applied here because Guerrero received these payments for acts directly related to his official duties.

“The statute of limitations merely requires that the act be in ‘connection’ to official duties. As such the statute of limitations applies to all the claims in this lawsuit. The fact that the lawsuit is brought against defendant ‘in his individual capacity’ is irrelevant to the statute of limitations. The claimed illegality of the payment is based on defendant’s position as commissioner. In this case, he received money for performing his official duties,” Gregory said.

In addition, Gregory said the OAG did not plead facts to show an exception to the statute of limitations.

“The exceptions to the statute of limitations deals with the disabilities of the minor or the insane, partial payment on accounts, an extension due to absence of time of a party from the Commonwealth, and an extension in cases involving fraudulent concealment. No such facts have been alleged in the complaint. The acts alleged clearly took place more than two years prior to the filing of complaint,” he said.