ISLAND’S CHOICE, INC., Appellant,
v.
PROCUREMENT AND LOLO M. MOLIGA,
CHIEF PROCUREMENT OFFICER, Appellees.
High Court of
Appellate Division
AP No. 07-99
[1] The court does not have jurisdiction to review a
final order of the Chief Procurement Officer (CPO) in the absence of a final
decision by the Governor on the administrative appeal of the CPO’s
decision.
[2] Where a party has exhausted all administrative
remedies within an agency and is aggrieved by a final (or effectively
dispositive) decision in a contested case, the party is entitled to judicial
review as prescribed under A.S.C.A. § 4.1040 et seq.
[3] A party aggrieved by a preliminary, procedural or
intermediate agency action or ruling need not exhaust all administrative
remedies prior to filing for judicial review if review of the final agency
decision would not provide an adequate remedy.
[4] Under A.S.C.A. § 4.1041, reviewable agency
decisions or rulings may be instituted by filing a petition in the appellate
division within 30 days, but the mere filing of the petition does not
automatically stay the administrative decision to be reviewed.
[5] Once a petition for review is filed, either the
agency may grant, or the court may order, a stay on appropriate terms.
[6] Under the broad legal themes of separation of
powers, sovereign immunity, exhaustion of administrative remedies and judicial
restraint, immediate review of an administrative decision will be denied where
no grounds are demonstrated that remaining administrative remedies are
inadequate.
[7] Under A.S.C.A. § 4.1040, where the disputed
procurement award could be adequately remedied by the Governor’s reversal and
remand of that award at the conclusion of the administrative review
proceedings, the court lacks judicial review jurisdiction, and also lacks the
authority to [3ASR3d50] exercise its
ancillary powers to issue a stay.
Before KRUSE, Chief Justice, WARD*,
Acting Associate Justice, SAGAPOLUTELE, Associate Judge, and ATIULAGI,
Associate Judge.
Counsel: For
Appellant, Brian M. Thompson
For Appellee, Fiti A. Sunia, Assistant
Attorney General
OPINION AND ORDER
Facts and Procedural History
On
Earlier this year,
Island’s Choice’s notice of dispute also included a
proposed “Stay Order” for the CPO to execute, and stated that failure to do so
would result in the filing of a requested stay in the High Court. Island’s Choice next filed a “notice of
appeal” on May 17, 1999, with the Governor’s Office pursuant to A.S.A.C. § 10.0282,
which establishes an administrative appeals process for reviewing contested ASG
procurement awards. That notice also
requested that the Governor issue a stay of the award “to forestall unnecessary
action in the High Court.”
On
On
On
On
At the second hearing of
Discussion
[1]
[2-3] Our jurisdiction to review final (or effectively
dispositive) agency decisions in contested cases is prescribed under A.S.C.A. §
4.1040 et seq. A.S.C.A. § 4.1040
provides an entitlement of judicial review for a “person who has exhausted all
administrative remedies within an agency and who is aggrieved by a final
decision in a contested case. . . .”
Subsection (b) of that statute qualifies the application of subsection
(a), and prohibits simultaneous judicial review under § 4.1040 and under any
other statute specifically providing adequate means of judicial review. Subsection (c) further qualifies subsection
(a) by relieving a person aggrieved by a “preliminary, procedural or
intermediate agency action or ruling” from exhausting all administrative
remedies prior to filing with the court for judicial review “only if review of
the final agency decision [3ASR3d52] would
not provide an adequate remedy.”
[4-5] A.S.C.A. § 4.1041 sets forth how proceedings for
judicial review of final, or immediately reviewable interim, agency decisions
or rulings may be instituted and how stays of such rulings may be issued. Subparagraph (a) provides that proceedings
for review are instituted by filing a petition in the appellate division within
30 days after the decision to be reviewed is issued or, if reconsideration or a
rehearing is requested, within 30 days after the decision thereon. Subsection (b) reads:
The filing of a petition under this section
shall not stay enforcement of the agency’s decision. The agency may grant, or the court may order,
a stay on appropriate terms.
(emphasis added).
To properly invoke this court’s limited jurisdiction
to review administrative decisions of the executive branch, a party must timely
file a petition for judicial review within the 30-day period required by
A.S.C.A. § 4.1041(a). The mere filing of
that petition does not automatically stay the administrative decision to be
reviewed under the petition. A.S.C.A. §
4.1041(b). Once a petition for review is
filed with the court, either the agency may grant, or the court may order, a
stay on appropriate terms.
Island’s Choice attempted to invoke this court’s
judicial review powers by filing its
[6] Under the broad legal themes of separation of powers,
sovereign immunity, exhaustion of administrative remedies and judicial
restraint, we narrowly hold that neither is Island’s Choice presently entitled
to invoke the court’s judicial review powers nor has it demonstrated any basis
for this court to immediately review any interim agency decision on the grounds
that the remaining administrative remedies are inadequate.
At a minimum, A.S.C.A. §§ 4.1040-41 contemplate a
timely-filed petition for review which contains allegations sufficient to
facially support an inference: of the
petitioner’s entitlement to judicial review by virtue of exhausting all
administrative remedies (A.S.C.A. § 4.1040(a)) or of grounds sufficient to
support immediate review of an interim agency decision where further pursuit of
available administrative remedies by petitioner would not provide an adequate
remedy (A.S.C.A. § 4.1040(c)); and that the court was not prohibited from
exercising its judicial review powers by operation of a separate, specific law
(A.S.C.A. [3ASR3d53] § 4.1040(b)).
Island’s Choice initiated the administrative appeals
proceedings immediately prior to filing its petition for stay with this
court. The record reflects prompt
compliance by the executive branch with the administrative rules applicable to
the administrative review of procurement awards. The Governor’s final decision has not been
issued.
[7]
Island’s Choice relies heavily upon our decision in BHP Petroleum
South Pac., Inc. v. American Samoa Gov’t,
2 A.S.R.3d 1 (App. Div. 1998) as grounds for its position that we should assume
jurisdiction over this still-pending administrative matter. That reliance is misplaced. In the BHP case, the petitioner’s
filings demonstrated that the initial procurement award was made by the
Governor who had himself assumed the statutory powers of the office of the
Chief Procurement Officer. The
petitioners then attempted to pursue administrative review remedies by filing
notice with the Governor, which effectively would have required the Governor to
review his own decision made in his capacity as the CPO.
On its face, petitioner’s pleadings in BHP
presented the court with an interim agency ruling at clear variance with the
statutes creating and establishing a Chief Procurement Officer for ASG, and
demonstrating a clear appearance that administrative review under those
extraordinary circumstances would not provide an adequate remedy. The critical distinction in the BHP
case was the fact that despite petitioner’s best efforts to seek administrative
review, the Governor had neglected to even appoint an administrative appeals
panel until after petitioners filed their pleadings in the appellate division
of the High Court.
In the instant matter,
Order
For the foregoing reasons, the appeal is hereby
dismissed without prejudice.
It is so Ordered.
**********
* The Honorable John L. Ward II, District Court Judge, serving by designation of the Secretary of the Interior.