PO II Steve Topasna, Guam Police Department Does 1-100 v. Government of Guam Lourdes Leon Guerrero in her capacity as Governor of Guam CAPT. Steven Ignacio, in his capacity as Chief of Police, Guam Police Department Mr. Edward Birn, in his capacity as Director, Guam Department of Administration , 2021 Guam 23 ( 2021 )

IN THE SUPREME COURT OF GUAM
PO II STEVE TOPASNA, Guam Police Department; DOES 1-100,
Petitioners-Appellants,
v.
GOVERNMENT OF GUAM; LOURDES LEON GUERRERO in her
capacity as Governor of Guam; CAPT. STEVEN IGNACIO, in his capacity as
Chief of Police, Guam Police Department; MR. EDWARD BIRN, in his
capacity as Director, Guam Department of Administration,
Respondents-Appellees.
Supreme Court Case No.: CVA20-014
Superior Court Case No.: SP0064-20
OPINION
Cite as: 2021 Guam 23Appeal from the Superior Court of Guam
Argued and submitted on May 21, 2021
Via Zoom video conference
Appearing for Petitioners-Appellants: Appearing for Respondents-Appellees:
Thomas J. Fisher, Esq. Jordan Lawrence Pauluhn, Esq.
Fisher & Associates Assistant Attorney General
167 E. Marine Corps Dr., Ste. 101 Office of the Attorney General
Hagåtña, GU 96910 Litigation Division
590 S. Marine Corps Dr., Ste. 802
Tamuning, GU 96913
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 2 of 12
BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;
KATHERINE A. MARAMAN, Associate Justice.
CARBULLIDO, C.J.:
[1] Petitioner-Appellant Police Officer II Steve Topasna appeals from the Superior Court’s
denial of his Petition for a Writ of Mandamus. Topasna argues the Superior Court misinterpreted
Rule 8.406 of the Department of Administration’s Personnel Rules and Regulations in holding
that he and similarly situated government employees were not entitled to release from their work
duties, with pay and without charge to leave, during the State of Emergency declared in response
to the novel coronavirus (“COVID-19”). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
[2] In 1996, the then-governor of Guam promulgated the Department of Administration
(“DOA”) Personnel Rules and Regulations (“Personnel Rules”) by executive order. See Exec.
Order No. 1996-24 at 2. The Personnel Rules “apply to all employees occupying classified
positions employed by the departments and agencies under the jurisdiction of the Department of
Administration.” DOA Pers. R. & Regs. 1.000(A) (1996).
[3] In March 2020, the Governor of Guam declared a public health State of Emergency in
response to COVID-19. See Exec. Order No. 2020-03. The Governor later enacted several
measures by executive order to reduce public exposure to the virus, including limitations on
certain “non-essential” government operations. See Exec. Order No. 2020-04 at 1 (closure of
non-essential government operations); Exec. Order No. 2020-05 at 2 (clarifying operational
status of agencies). Executive Order No. 2020-05 announced that, until further notice, some
government agencies would be “completely closed,” other agencies would be “operational but
closed to public access,” and still other agencies would remain “fully operational, including
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 3 of 12
public access.” Exec. Order No. 2020-05 at 2. Many government employees were ordered to
report for duty at their work facility only if so requested by their supervisor. See id. By contrast,
Topasna avers that he was not ordered to refrain from reporting to work.
[4] In May 2020, Topasna, a Police Officer II with the Guam Police Department (“GPD”),
filed a Petition for a Writ of Mandamus with the Superior Court of Guam. Topasna sought,
under Rule 8.406 of the Personnel Rules (“DOA Rule 8.406”), to be released from his work
duties with pay and without charge to leave during the State of Emergency, or to be compensated
at double his regular rate for the essential work he performed during the State of Emergency.1
Topasna named the Government of Guam, the Governor, the Director of DOA, and the Chief of
GPD (collectively, “the Government”) as respondents. The Superior Court denied Topasna’s
petition, holding that mandamus would not lie because Topasna had failed to prove all predicate
conditions for relief under DOA Rule 8.406. The Superior Court entered its judgment, and
Topasna timely appealed.
1
Rule 8.406 provides:
Natural Disasters and Other Emergency Conditions
A. Excused absence with pay and without charge to leave shall be granted to employees when
natural disasters or other emergency conditions create unsafe working conditions.
B. Excused absence, for natural disaster or other emergency conditions, may be granted only
when there has been an official proclamation of the hazardous conditions by Executive Order,
or an equivalent announcement by the Governor.
C. When the Governor declares a State of Emergency, the appointing authority shall determine
whether affected facilities or portions thereof, which are located in the area covered by the
Executive Order or proclamation, are to be closed.
1. Except for those employees determined by the appointing authority to be necessary for
providing essential services, employees shall be released from duty with pay, without
charge to leave, for the period the facility is closed.
2. Those employees, required to remain on duty to provide essential services, shall be paid
at double the regular rate, or granted compensatory leave credits for the hours worked
during the period the facility is closed and the other employees are on excused leave.
D. Employees who are on annual or sick leave status when an emergency condition is declared
by Executive Order, or announcement by the Governor and are not required to report to duty,
shall be considered as released from duty with pay without charge to leave for the period the
work facility is closed.
DOA Pers. R. & Regs. 8.406.
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 4 of 12
II. JURISDICTION
[5] This court has jurisdiction over appeals from final judgments rendered by the Superior
Court of Guam. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-57 (2021)); 7 GCA
§§ 3107(b), 3108(a) (2005). The appealed decision denying Topasna’s petition is a final
judgment “because it adjudicates all the claims and all rights and liabilities of all parties, in
accordance with 7 GCA § 3108(a) (2005).” Agana Beach Condo. Homeowners’ Ass’n v.
Mafnas, 2013 Guam 9 ¶ 10.
III. STANDARD OF REVIEW
[6] “The Superior Court’s decision to deny a writ of mandamus will not be reversed absent a
finding of abuse of discretion.” Dep’t of Agric. v. Civil Serv. Comm’n (Rojas), 2009 Guam 19 ¶
8 (citing Carlson v. Perez, 2007 Guam 6 ¶ 15). “A trial court abuses its discretion when its
decision is based on clearly erroneous factual findings or an incorrect legal standard.” Carlson,
2007 Guam 6 ¶ 15 (quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986)). However,
“[t]he trial court’s conclusions of law, such as whether the legal requirements for mandamus are
met and issues of statutory interpretation, are reviewed de novo.” Agana Beach, 2013 Guam 9 ¶
11 (citing Rojas, 2009 Guam 19 ¶ 8). Further, interpreting an agency rule or regulation is
reviewed de novo. See, e.g., Port Transp., Stevedore, & Terminal Emps. v. Guam Civil Serv.
Comm’n (Port Auth. of Guam), 2018 Guam 18 ¶ 28; Fleet Servs., Inc. v. Dep’t of Admin., 2006
Guam 6 ¶ 11; Doe v. N.H. Dep’t of Safety, 999 A.2d 362, 365 (N.H. 2010).
IV. ANALYSIS
A. The Superior Court’s Analysis of DOA Rule 8.406 Was Not an Abuse of Discretion
[7] Topasna raises only one issue on appeal: whether the trial court abused its discretion
“when it ignored and misinterpreted sections of [DOA Rule 8.406].” Appellant’s Br. at 1 (Nov.
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 5 of 12
24, 2020). In the Superior Court, Topasna argued for one of two outcomes: to be released from
his work duties with pay and without charge to leave (hereafter, “paid leave”) under DOA Rule
8.406(A), or to receive pay at double his regular rate or compensatory leave credit (hereafter,
“double pay”) under DOA Rule 8.406(C). The Superior Court’s Decision and Order mainly
focused on Topasna’s double pay claim. The Superior Court held that mandamus would not lie
because Topasna did not prove two predicate conditions for double pay under DOA Rule
8.406(C)(2): that Topasna’s work facility, GPD, was “closed” and that other GPD personnel
were placed on excused leave while Topasna had to report to work. See RA, tab 11 at 8-10 (Dec.
& Order, June 4, 2020).
[8] Topasna argues the Superior Court’s construction of DOA Rule 8.406 was erroneous
because it failed to give proper effect to DOA Rule 8.406(A). In Topasna’s view, subsection (A)
creates an entitlement to paid leave with only a single predicate condition: a gubernatorial
proclamation of a State of Emergency. Appellant’s Br. at 11. Thus, Topasna argues the Superior
Court erred in denying his paid leave claim for lack of evidence that his work facility was closed.
To resolve his claim, we must determine whether work facility closure is a predicate condition
for paid leave under DOA Rule 8.406.
1. We apply the same canons of construction for interpreting statutes to interpret
administrative rules
[9] Although this court has often been called to interpret statutes, Topasna’s argument
requires the interpretation of a DOA agency rule. We have not opined whether the same canons
of construction applicable to statutory interpretation also apply to interpreting administrative
agency rules. After reviewing case law from other jurisdictions, we conclude the same canons of
construction apply in both circumstances. See, e.g., Black & Decker Corp. v. Comm’r of Internal
Revenue, 986 F.2d 60, 65 (4th Cir. 1993) (“Regulations, like statutes, are interpreted according to
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 6 of 12
canons of construction.”); Price v. Starbucks Corp., 122 Cal. Rptr. 3d 174, 181 (Ct. App. 2011)
(“The rules of statutory construction apply to the interpretation of regulations.”); Tex. Mut. Ins.
Co. v. DeJaynes, 590 S.W.3d 654, 663 (Tex. App. 2019) (“[C]ourts should interpret an
administrative rule as it would a statute, applying traditional principles of statutory
construction.”).
[10] We therefore interpret DOA Rule 8.406 given our typical canons of statutory
construction. The “starting point” of interpretation is the plain language of the rule. Barrett-
Anderson v. Camacho, 2015 Guam 20 ¶ 23 (quoting Aguon v. Gutierrez, 2002 Guam 14 ¶ 6).
But we need not adhere to the plain language of the rule where doing so “would lead to absurd or
impractical consequences, untenable distinctions, or unreasonable results.” Sumitomo Constr.,
Co. v. Gov’t of Guam, 2001 Guam 23 ¶ 17 (quoting Bowlby v. Nelson, DCA No. 83-0096A, S.C.
No. 69-83, 1985 WL 56583, at *2 (D. Guam App. Div. Sept. 5, 1985)). We review DOA Rule
8.406 as a whole, see, e.g., Macris v. Guam Mem’l Hosp. Auth., 2008 Guam 6 ¶ 19, and construe
those provisions “deal[ing] with the same subject matter” in pari materia with one another,
Aguon, 2002 Guam 14 ¶ 13; see also Lexin v. Superior Court, 222 P.3d 214, 241 (Cal. 2010).
Finally, we interpret DOA Rule 8.406 with the intention “to give effect to all of its provisions so
that no part would be superfluous or insignificant.” Macris v. Richardson, 2010 Guam 6 ¶ 15
(citing Duncan v. Walker, 533 U.S. 167, 174 (2001)).
2. Facility closure is a predicate condition for paid leave under DOA Rule 8.406
[11] We consider de novo whether Topasna’s reading of DOA Rule 8.406 reflects the relevant
canons of construction. See, e.g., Doe, 999 A.2d at 365. We begin with the plain meaning of
subsection (A): “Excused absence with pay and without charge to leave shall be granted to
employees when natural disasters or other emergency conditions create unsafe working
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 7 of 12
conditions.” DOA Pers. R. & Regs. 8.406(A). Topasna argues this subsection’s use of the word
“shall” proves that an employee’s entitlement to paid leave is mandatory. Appellant’s Br. at 8-9.
We agree the word “shall” means the entitlement, when properly triggered, is mandatory rather
than discretionary. Cf. Enriquez v. Smith, 2015 Guam 29 ¶ 26. However, the Superior Court
held that Topasna failed to establish the predicate conditions necessary to trigger the rule, not
that the Government may exercise discretion to ignore the rule if properly triggered. See RA, tab
11 at 8-10 (Dec. & Order). The salient question is not what “shall” means, but what predicate
conditions are necessary to trigger the entitlement.
[12] In Topasna’s view, the only predicate condition for paid leave under subsection (A) is a
gubernatorial declaration of a State of Emergency. Appellant’s Br. at 11. The State of
Emergency requirement is not found in the text of subsection (A); subsection (A) instead
contemplates “natural disasters or other emergency conditions creat[ing] unsafe working
conditions.” DOA Pers. R. & Regs. 8.406(A). Yet DOA Rule 8.406(A) neither defines nor
explains the terms “natural disasters,” “other emergency conditions,” or “unsafe working
conditions,” nor does the rule explain who has the authority to determine whether such
conditions exist. Read in isolation, DOA Rule 8.406(A) would be too ambiguous to create an
enforceable entitlement.
[13] But subsections of a rule should not be read in isolation; all language of a rule “must be
examined within its context,” which includes looking at its related provisions. Macris v. Guam
Mem’l Hosp. Auth., 2008 Guam 6 ¶ 19 (quoting Aguon, 2002 Guam 14 ¶ 9). DOA Rule
8.406(B) clarifies subsection (A). Subsection (B) provides that “[e]xcused absence, for natural
disaster or other emergency conditions, may be granted only when there has been an official
proclamation of the hazardous conditions by Executive Order, or an equivalent announcement by
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 8 of 12
the Governor.” DOA Pers. R. & Regs. 8.406(B). Reading subsections (A) and (B) together, this
predicate condition is clear: a gubernatorial declaration is necessary to satisfy the “natural
disasters or other emergency conditions” language of subsection (A). We therefore agree with
Topasna that the declaration of a State of Emergency, or an equivalent announcement by the
Governor, is a predicate condition for paid leave under DOA Rule 8.406.
[14] Still, ambiguity remains as to the meaning of “unsafe working conditions.” To
understand this phrase, we look to subsection (C), which provides: “When the Governor declares
a State of Emergency, the appointing authority shall determine whether affected facilities or
portions thereof, which are located in the area covered by the Executive Order or proclamation,
are to be closed.” DOA Pers. R. & Regs. 8.406(C). We find the plain meaning of subsection (C)
clear: the appointing authority has the power to determine whether certain work facilities are
affected by the conditions creating the State of Emergency and, if so, to close the work facility.
Therefore, subsection (C) provides that the appointing authority has the power to determine
whether “unsafe working conditions,” as contemplated by subsection (A), are present.
Subsection (C)(1) adds that except for certain employees who provide “essential services,”
employees “shall be released from duty with pay, without charge to leave, for the period the
facility is closed.” DOA Pers. R. & Regs. 8.406(C)(1). We find the meaning of this subsection
plain as well: when the appointing authority closes the work facility, the facility’s non-essential
employees must be placed on paid leave while their work facility is closed. As with subsections
(A) and (B), subsections (C) and (C)(1) complement one another.
[15] There is a conflict, however, between the plain language of subsection (C)(1) and
Topasna’s expansive reading of subsection (A). In Topasna’s view, an employee is entitled to
paid leave under subsection (A) solely upon the declaration of a State of Emergency. Subsection
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 9 of 12
(C)(1), however, contemplates paid leave only if—and only while—the employee’s work facility
is closed because of the State of Emergency. Therefore, the grant of paid leave under subsection
(C)(1) is much narrower than the grant of paid leave under Topasna’s reading of subsection (A).
Topasna glosses over this distinction, suggesting subsection (C)(1) merely “reiterates the
requirements of [subsection] (A) and acknowledges the existence of certain essential services
that must be met.” Appellant’s Br. at 12. We disagree with Topasna’s assessment. If Topasna’s
reading were correct, then an employee would be entitled to paid leave under subsection (A)
even if the facility is not closed under subsection (C). The language “for the period the facility is
closed” in subsection (C)(1) would be swallowed by the broader rule of subsection (A) and
would therefore be superfluous. We are disinclined to read legal texts in this way. See, e.g.,
Bank of Guam v. Del Priore, 2007 Guam 7 ¶ 27 (disapproving a statutory construction that
would render statute’s express language superfluous).
[16] There is a similar conflict between Topasna’s reading of subsection (A) and the plain
language of subsection (D). Subsection (D) provides that employees already on annual or sick
leave at the time of the State of Emergency declaration “shall be considered as released from
duty with pay without charge to leave,” but only “for the period the work facility is closed.”
DOA Pers. R. & Regs. 8.406(D). As above, if Topasna’s reading of subsection (A) were correct,
then such an employee would be entitled to paid leave under the broad rule of subsection (A)
despite the narrower and more specific grant of paid leave under subsection (D). The “for the
period the work facility is closed” language in subsection (D) would likewise be superfluous.
[17] Topasna proposes no interpretive method to reconcile this conflict; his briefing discusses
subsection (C)(1) only briefly and does not discuss subsection (D). However, as a general rule of
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 10 of 12
statutory interpretation, when two in pari materia provisions conflict with each other, the more
specific provision trumps the general:
It is an old and familiar rule that, where there is, in the same statute, a particular
enactment, and also a general one, which, in its most comprehensive sense, would
include what is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect only such cases
within its general language as are not within the provisions of the particular
enactment.
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 646 (2012) (quoting United
States v. Chase, 135 U.S. 255, 260 (1890)). This “general-specific” canon ensures that “[w]here
there is no clear intention otherwise, a specific statute will not be controlled or nullified by a
general one.” Morton v. Mancari, 417 U.S. 535, 550-51 (1974). Instead, the more specific
statute will operate as an “exception to, or qualification of, the general statute.” Wark v. Wash.
Nat’l Guard, 557 P.2d 844, 845 (Wash. 1976) (en banc).
[18] Here, we perceive no clear intention in DOA Rule 8.406 that subsections (C)(1) and (D)
be controlled or nullified by the more general subsection (A). We therefore interpret these more
specific subsections as qualifications to the general policy of paid leave announced by subsection
(A). We conclude subsections (C)(1) and (D) limit an employee’s entitlement to paid leave to
periods in which the employee’s work facility is closed. And because the facility-closure
requirement necessary to subsections (C) and (D) qualify the general rule established by
subsection (A), we conclude that facility closure, like a State of Emergency declaration, is
therefore a predicate condition for paid leave under DOA Rule 8.406. Thus, the Superior Court’s
analytical approach relying on facility closure was not an error of law, and thus not an abuse of
discretion.
[19] Topasna also cites Koji v. Neves, 2016 Guam 36, for the proposition that a trial court’s
failure to perform a required analysis requested by one party is an abuse of discretion. Topasna
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 11 of 12
appears to argue the Superior Court abused its discretion by failing to analyze his paid leave
claim separately from his double pay claim. See Appellant’s Br. at 5, 9. However, Koji does not
apply to the facts here. In Koji, the trial court ignored a party’s motion for an inconvenient
forum analysis despite Guam’s inconvenient forum statute explicitly providing that a party may
raise the issue by motion. See 2016 Guam 36 ¶ 40. Here, the Superior Court did not ignore
Topasna’s request to be placed on paid leave, but properly considered and resolved the issue.
The Superior Court ruled that Topasna was ineligible for paid leave under subsection (C)(1)
because he had been designated as “essential” by the Chief of Police and because he failed to
prove that his work facility was closed. See RA, tab 11 at 7-9 (Dec. & Order). Because
subsection (C)(1) qualifies the rule of subsection (A), the Superior Court did not have to perform
a separate analysis under subsection (A); an analysis under subsection (C)(1) was sufficient to
resolve the issue. In contrast to Koji, the Superior Court did not abuse its discretion by not
performing an unnecessary analysis.
B. We Need Not Reach the Government’s Alternative Grounds for Defending the
Judgment
[20] The Government proposes several alternative grounds on which to resolve this case. See
generally Appellee’s Br. (Jan. 14, 2021). Although the Government did not cross-appeal the
Superior Court’s judgment, an appellee “may, despite a failure to file a cross-appeal, defend a
judgment on any ground consistent with the record, even if rejected or ignored by the lower
court.” Rahmani v. Park, 2011 Guam 7 ¶ 68. Thus, the Government’s alternative theories
defending the judgment are proper for our consideration. But because we have resolved the case
based on textual interpretation, it is unnecessary to reach the merits of these alternative theories.
Cf. Unpingco v. Derry, 2021 Guam 1 ¶ 21.
Topasna v. Gov’t of Guam, 2021 Guam 23, Opinion Page 12 of 12
V. CONCLUSION
[21] Because the Superior Court did not abuse its discretion in its analysis of Topasna’s claim
for paid leave under DOA Rule 8.406, we AFFIRM its Decision and Order denying Topasna’s
petition and the resulting judgment.
/s/ /s/
ROBERT J. TORRES KATHERINE A. MARAMAN
Associate Justice Associate Justice
/s/
F. PHILIP CARBULLIDO
Chief Justice