SECRETARY of Finance Tracy B. Norita has asked the Superior Court to dismiss the amended complaint filed by former firefighters who received $1,000 in premium pay instead of $5,000.
Assistant Attorney General Rellani Ogumoro, who represents Finance, said the amended complaint failed to establish the court’s subject matter jurisdiction pursuant to the Commonwealth’s Administrative Procedure Act.
“Under CAPA, a petitioner can only seek judicial review of an agency action within 30 days of the agency action,” Ogumuro said.
She noted that the amended complaint stated that the former firefighters received $1,000 in premium pay on or about June 6 to June 13, 2022.
The plaintiffs filed suit for a judicial review of the agency action about 200 days later, on Dec. 16, 2022, she added.
She said CAPA limits the court’s review only to those claims that are timely made.
“Plaintiffs’ second cause of action is an equal protection claim that exists within the CAPA claim. Therefore, the jurisdictional requirements of CAPA govern. Thus, the court is unable to review concurrent claims presented under plaintiffs’ untimely request for judicial review. Without jurisdiction for judicial review under CAPA, the court is unable to turn to the merits of the complaint or the remaining claim,” Ogumuro said.
The former firefighters are Paul T. Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Argernon A. Flores, Derek B. Gersonde, Shawn DLR Kaipat, Philip Kalen and Adam J. Safer. Through attorney Joseph Horey, they filed a complaint of injunctive relief against then-Secretary of Finance David DLG Atalig and the Department of Finance.
The new Finance secretary, Norita, has replaced Atalig as respondent and defendant in the complaint.
The former firefighters are alleging denial of equal protection of the laws, and deprivation of civil rights under the U.S. Constitution.
In a previous order, Presiding Judge Roberto C. Naraja granted in part and denied in part the Department of Finance’s motion to dismiss the lawsuit filed by the former firefighters over premium pay.
The judge granted Finance’s motion to dismiss the first cause of action for judicial review of an administrative action. The judge likewise granted Finance’s motion to dismiss the third cause of action for civil rights violation under 42 U.S.C. § 1983.
The judge at the same time directed the plaintiffs to file a second amended complaint.
“The Second Amended Complaint shall specifically allege facts supporting an inference of subject matter jurisdiction under the Commonwealth Administrative Procedures Act,” Judge Naraja said.
According to the former firefighters’ amended complaint, although each of them “met all the qualifications set out in the Governor’s announcement for premium pay in the amount of $5,000, defendant’s predecessor approved premium pay for each of them in the amount of $1,000, rather than the full $5,000.”
They said the “defendant’s predecessor’s actions in approving less than the full $5,000 amount of premium pay for plaintiffs were arbitrary, capricious, and contrary to constitutional right.”
According to the lawsuit, on or about Dec. 29, 2021, then-Gov. Ralph DLG Torres announced that the Department of Finance would release $5,000 premium pay for each CNMI government employee who had worked at least 40 hours to directly mitigate the Covid-19 pandemic.
As Department of Fire and Emergency Medical Services employees, the plaintiffs said they had worked at least 40 hours to directly mitigate the Covid-19 pandemic.
Each of the plaintiffs filled out and submitted their respective applications for premium pay to the Department of Finance.
“Although each of the plaintiffs met all the qualifications for premium pay in the amount of $5,000, defendant approved premium pay for each of them in the amount of $1,000, rather than the full $5,000,” their lawsuit stated.
“Upon information and belief, the reason that plaintiffs were paid less than full premium pay was that they had been terminated from their government employment on or about May 21, 2021, after they had already performed the amount of direct pandemic mitigation work required to qualify for full premium payment,” the lawsuit added.
The former firefighters were terminated because of their refusal to get the Covid-19 vaccine. They have filed a separate and pending lawsuit to request the court to reinstate them as firefighters.
