DESPITE his deteriorating health, former Department of Public Works public information officer Felipe Q. Atalig is still pursuing his case against DPW for terminating him in March 2018 for sexual harassment.
The 83-year-old who represents himself testified in Superior Court on Tuesday last week in response to the CNMI government’s motion to dismiss his petition for judicial review “for failure to timely serve agencies.”
Associate Judge Wesley Bogdan presided over the motion hearing at 10 a.m. on Aug. 16.
The Office of the Attorney General, through Assistant AG Charles P. Reyes Jr., stated that the court should ignore Atalig’s “hollering,” dismiss the case on the grounds that Atalig failed to comply with mandatory claim-processing rules, and deny the petitioner’s call for sanctions.
Citing Norita v. Commonwealth, 2020 MP 12, and Commonwealth v. Borja, 2015 MP 8, the OAG said DPW’s claim-processing pertaining to appeals is “distinct from issues implicated in the rules in regular civil cases not involving appeals.”
The OAG said, “A court has to allow a party the opportunity to timely invoke claim-processing rule before (or at) the merits-briefing…to allow the party to preserve the issue for possible appeal.”
The OAG stated that Atalig’s calls for a sanction are procedurally and substantively flawed.
Procedurally, the OAG added, the petitioner did not comply with the rules because he failed to file a separate motion and provide a 21-day safe harbor notice prior to the motion.
Atalig, who filed his petition on Sept. 2, 2020, told the judge that when DPW filed its motion to dismiss on Oct. 8, 2020, “there was absolutely no mention about failure to timely serve agencies. Absolutely nothing.”
Atalig said when DPW filed its initial motion to dismiss, the department “knew or should have known about the claim-processing issue and completely failed to assert such a claim in its first motion to dismiss.”
He said DPW “negligently failed to include the claim-processing issue in its initial motion to dismiss.”
He added that DPW, in its second motion to dismiss, has not explained nor has it provided any legal justification how or why the rules of procedure for administrative appeals would allow DPW to file a second/successive motion to dismiss.
He noted that Rule 2(g)(2) of the NMI Rules of Procedure for Administrative Appeals states that “other motion may be considered on a case by case basis.”
He said it “does not explicitly state that a second successive motion to dismiss may be made. If that is the case, the rule would have expressly stated that a second successive motion to dismiss was permissible.”
Lastly, Atalig said, DPW has not “provided any legal authority or administrative law case precedent…which holds that a successive motion to dismiss based on the claim-processing issue is permissible under the NMI Rules of Procedure of Administrative Appeals.”
Atalig added, “Your honor, as I have already argued, DPW has waived its right to file a successive motion to dismiss based on a claim-processing issue because 1) no such express provision was stated in the NMI Rules of Procedure for Administrative Appeals which permits a successive motion to dismiss for insufficient service or process, and 2) the NMI Rules of Civil Procedure govern this matter and thus, DPW’s successive motion to dismiss is not permissible and should therefore be denied.”
Felipe Q. Atalig
