AMERICAN SAMOA SLIP OPINIONS 2012 Edition

Covering Certain Opinions From the District Court and Divisions of the High Court of American Samoa From 2011-2012

Collected and Disseminated by the High Court of American Samoa Pago Pago, American Samoa 96799

Edited by: John L. Ward IV, Jon Clemens, Law Clerks to the High Court of American Samoa

August 9, 2012 There is a dearth of recent case-law in this jurisdiction. In an effort to keep the local bar current with court decisions, the High Court of American Samoa has put together a volume of slip opinions taken predominantly from these last six months. Obviously, considering the recentness of some of the lower court orders and opinions and the potential for appeal on some of them, attorneys cite the contained Trial Division decisions at their own peril. However, the Appellate Division decisions do have stare decisis. Considering that citing to slip opinions may be new for some members of the bar, there is a gray box preceding every slip opinion indicating how that slip opinion ought to be cited. Moreover, the index’s headnotes are pin-cited. This should make the transition to slip opinion citation more endurable. More slip opinion volumes like these (or a supplement to this one) may appear in the near future while we wait on the publication of the American Samoa Reports. The slip opinions are organized by court/division, listed in chronological order within the court/division grouping. There are no page numbers in this volume, all of the page numbers on the individual slip opinions are indicated by bracketed and starred numbers, e.g., “[**2**].” The numbers in each individual slip opinion correspond to the numbers on the physical orders and opinions that issued. The versions of those slip opinions that appear herein are the official versions of those orders and opinions until such time as the High Court formally publishes or sanctions a reporter containing the same.

TABLE OF CONTENTS

Dist. Ct. ▪Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. (Dist. Ct. Mar. 4, 2012). ▪Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at (Dist. Ct. Mar. 26, 2012).

Trial Div. ▪Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). ▪Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum. j. and dismissal). ▪The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. (Trial Div. April 10, 2012) (order denying application). ▪Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). ▪Bartolome v. JKL, Inc., CA No. 30-08, slip op. (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for summ. j.). ▪Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. (Trial Div. July 10, 2012) (order dismissing motion). ▪Tuli’au v. Tuiasina, CA No. 22-12, slip op. (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). ▪De Guzman v. Fiamalua, CA No. 23-12, slip op. (Trial Div. June 7, 2012). ▪Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). ▪Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. (Trial. Div. July 27, 2012) (order rejecting plea agreement). ▪Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

App Div. ▪O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. (App. Div. May 11, 2011). ▪Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. (App. Div. Nov. 10, 2011). ▪Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. (App. Div. March 19, 2012). ▪Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. (App. Div. April 3, 2012) (order). ▪Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. (App. Div. Apr. 12, 2012) (order denying application for stay). ▪Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. (App. Div. Apr. 30, 2012). ▪Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). ▪Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). ▪Chand v. Fa’aoso, AP No. 08-10, slip op. (App. Div. Aug. 7, 2012).

OPINIONS OF THE

DISTRICT COURT OF AMERICAN SAMOA (2012)

Cite As: Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at ____ [page number] (Dist. Ct. Mar. 4, 2012). AMERICAN SAMOA GOVERNMENT, Plaintiff, v. BRIAN MISCOI, Defendant.

___________________________________ The District Court of American Samoa UTC Nos. 286246 & 286247 March 4, 2012

[1] The District Court takes judicial notice of the history and development of the Standardized Field Sobriety Tests. These uniform, field-testing procedures were developed by the National Highway Traffic Safety Administration (“NHTSA”) in response to high rates of vehicle crash fatalities related to impaired driving during the 1960s and 1970s. NHTSA had previously provided local police forces nation-wide with detection guides listing 20-24 examples of bad driving by a motorist predictive of driving under the influence. The follow-up S.F.S.T.s were researched and developed by NHTSA as police tools to use after a traffic stop was made to better assess whether probable cause existed to arrest a motorist for D.U.I. These tests performed by officers developing a reasonable suspicion that a stopped motorist is under the influence of alcohol or other drugs generally include the Horizontal Gaze Nystagmous Test (HGN), the 9-step Walk and Turn Test (WAT), and the One Leg Stand Test, (OLS). (The WAT and OLS tests are basically self-explanatory. The HGN test, on the other hand, relies upon studies of the effects of depressants, such as alcohol, upon a person’s central nervous system which naturally produce involuntary jerking of the eye’s iris when the effected person gazes to the side). [2] From a constitutional law standpoint, the Standardized Field Sobriety Tests (“S.F.T.S.s”) also further the protections afforded by the 4th Amendment. A motorist stopped for a traffic violation who exhibits some level of intoxication during his initial contact with the police, would, within the few minutes necessary to undergo testing and evaluation at the scene of the traffic stop, reasonably expect to continue on his trip, (with or without a ticket for the violation prompting the initial stop), if he successfully performs the S.F.T.S.s. [3] A traffic stop, however brief, is a seizure under the Fourth Amendment, but generally not an unreasonable seizure absent prohibited police conduct. [4] The 5th Amendment protects the accused’s right to not be compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature. An accused may be compelled, however, by the state to produce real or physical evidence. To be testimonial, the communication must, explicitly or implicitly, relate a factual assertion or disclose information. [5] Sobriety tests are carefully scripted and not designed to, nor would likely be perceived as, requiring any response from a criminal defendant. A criminal defendant’s statements during such tests are therefore voluntary, nontestimonial, and admissible. [6] The same protections against unconstitutional custodial interrogations of persons arrested for felonies applies to misdemeanor arrests as well. [7] The roadside questioning and administration of Standardized Field Sobriety Tests at a routine traffic stop do not constitute “custodial interrogation” requiring Miranda warnings to be given. Although a stopped motorist’s “freedom of action” is curtailed and some pressure may be felt by the motorist to answer the officer’s questions, in most stops the motorist believes he will soon be back on his way. Moreover, a traffic stop is normally brief and

conducted in public, rather than in a “police dominated” station-house custodial interrogation setting requiring Miranda warnings. [8] If a motorist stopped by police officers is subjected to treatment that renders the motorist “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 9 (Dist. Ct. Mar. 4, 2012). [9] The reasonableness of a traffic stop detention’s duration requires a “totality of circumstances” evaluation of the facts. [10] Reviewed solely under the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, and considering the totality of circumstances, the stop, detention and brief, voluntary transport to a safe location to conduct the Standardized Field Sobriety Tests would not violate a person’s U.S. Constitutional rights. [11] The District Court is bound by the U.S. Supreme Court’s pronouncements concerning the parameters of protection afforded individuals under the Fourth Amendment. [12] The Revised Constitution of American Samoa, in Article I, Sec. 5, basically restates the language of the Fourth Amendment to the U.S. Constitution and then adds a closing sentence, “Evidence obtained in violation of this section shall not be admitted in any court.” The language is both broad and unconditional. It prohibits a court from admitting (ostensibly from any party), any evidence obtained from an unreasonable search or seizure. [13] A traffic stop of a person, followed by a brief voluntary transport of that person in their vehicle to a safe public location to conduct the Standardized Field Sobriety Tests (“S.F.S.T.s”), under a totality of the circumstances, does not amount to an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether that person should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a Driving Under the Influence violation, a brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent Blood Alcohol Concentration results. [14] The reasonableness of seizures effectuated by a brief voluntary transport of a detained suspect in their vehicle to a safe public location to conduct Standardized Field Sobriety Tests , however, decreases in direct proportion to the proximity of the police station and the decreased reasonable expectation of the detained suspect of promptly resuming his trip. A progression of loss of access to his vehicle, keys, and drivers’ license, by a suspect, coupled with his removal from a public place into the bowels of a police station, all in the absence of probable cause for his arrest, triggers concerns under the Revised Constitution of American Samoa’s Article I, Sec. 5. [15] The term “evidence” is not qualified or limited in Article I, § 5, of the Revised Constitution of American Samoa. Under this broad constitutional language, any evidence obtained from an unreasonable seizure may not be admitted in court. This language admits to no distinction between non-testimonial and testimonial evidence, nor even to voluntarily produced evidence, such as breathalyzer B.A.C. tests, if the earlier seizure of the suspect which caused this evidence to be generated was unreasonable. Notwithstanding the U.S. Supreme Court’s holdings as to types or categories of evidence which are or are not admissible at trial under the judicially created Exclusionary Rule, Article I, § 5, of the Revised Constitution of American Samoa establishes a broad constitutional guarantee that evidence, (ostensibly, all evidence), obtained from an unreasonable search or seizure is not admissible in the courts of this Territory. [16] Where there is no testimony or evidence exhibiting a driver suspected of a Driving Under the Influence violation (“D.U.I.”) beyond the standard litany of “red eyes, slurred speech and odor of alcohol,” is unreasonable and will divest an officer of the probable cause necessary to arrest a person for a D.U.I. violation. [17] Under the Territory’s “Implied Consent” statutes, (A.S.C.A. § 22.0601-.0612), motorists operating on the highway in this Territory are deemed to have consented to a chemical test of breath, blood, urine, or saliva if arrested for D.U.I. Prior to the standard breathalyzer test used for these purposes by the Department of Public Safety, the arrested driver is advised of the test, the possible administrative suspension of driving privileges in the Territory for refusing the test, and the availability of additional (blood) testing for the driver if the B.A.C. is

performed. (The driver, having been previously placed under arrest would have, according to standard police practices, also been read Miranda warnings). [18] The practice of routinely transporting D.U.I. suspects to police stations for in-custody “field” sobriety testing, in the absence of probable cause for arrest or other compelling, reasonable circumstances, neither significantly increases officer or suspect safety levels, nor preserves an individual’s constitutional rights against unreasonable seizure by the government. [19] The statutes and case-law of this Territory (as well as other jurisdictions), contemplate that a driver stopped by police during a traffic stop will generally be briefly detained, issued a traffic citation or given a warning, and be allowed to resume the route to the driver’s destination. Any further detention of the driver must be, under a totality of the circumstances, reasonable, and that detention of no longer duration than necessary to promptly complete the officer’s investigation. Unlike other police-citizen encounters in non-traffic situations (where an individual might voluntarily consent to appear for police questioning at a station-house, be advised of his freedom to leave and Miranda rights, and then voluntarily waive those rights and make incriminating statements that would be admissible in court), separate and distinct considerations arise in traffic stop, detention, and D.U.I. arrest situations. [20] A suspected drunk-driver’s voluntary transport to conduct field sobriety tests at a safer location resulted in being directly transported to the Central Police Station, escorted inside, placed in a room and requested to perform physical acts, Standardized Field Sobriety Tests (S.F.S.T.s), the results of which would be used as evidence against him in any subsequent prosecution for D.U.I. At or reasonably near the traffic stop scene, a suspected drunkdriver’s public performance of S.F.S.T.s would not have required prior Miranda warnings. Even incriminating statements made by a suspected drunk-driver during the performance of such tests at the scene prior to arrest would have been generally admissible in court under case-law. Further, S.F.S.T.s could also have been conducted or reconducted at a police station if the suspect had been validly arrested for D.U.I. at or reasonably near the traffic stop. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 18 (Dist. Ct. Mar. 4, 2012). [21] Conceivably, upon a suspected drunk-driver’s police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, the suspected drunk-driver is in custody for all practical purposes. If there is no probable cause to support such a seizure (being in custody), Article I, § 5, of the Revised Constitution of American Samoa will operate to exclude any evidence after such a seizure, including Standardized Field Sobriety Tests that indeed indicated the suspected drunk-driver had driven under the influence. REV. CONST. OF AM. SAMOA art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 19-20 (Dist. Ct. Mar. 4, 2012).

Before: WARD, District Court Judge. Counsel:

For Plaintiff, Robert B. Hanley, Assistant Attorney General For Defendant, David P. Vargas, Esq. OPINION AND ORDER

This motion to suppress the results of Defendant John Miscoi’s, (“Miscoi”), ‘B.A.C.’, (breathalyzer), and Standardized Field Sobriety Test results conducted on 4 September 2011 in the Territory, came on regularly before the Court on 12 January 2012. Testimony was presented by Public Safety Officer Solaita, (“Solaita”), a veteran Police Officer, and Miscoi. From that testimony the court finds the following facts. At approximately 1:00 A.M. on 4 September 2011 Solaita and other officers were stationary in a police unit just off the main highway leading to Pago Pago. Solaita observed an approaching vehicle and estimated its speed at between 29-30 miles per hour in a 20 miles per hour zone. The unit’s radar equipment was activated and the speed of the vehicle read 30 miles per hour. The unit’s lights were activated as the vehicle passed and the vehicle, operated by Miscoi, was pulled over at the old location [**2**] of the Tool Shop Building Supply Store (which had been completely destroyed several months ago by the Tsunami). Solaita explained to Miscoi why he was stopped and Miscoi requested he be allowed to go home which he said was only a short distance away. Solaita, while speaking with Miscoi, noted he smelled of alcohol, had reddish eyes and his speech was slurred. Solaita decided to conduct the Standardized Field Sobriety Tests, (“S.F.S.T.”), and

explained to Miscoi that he intended to do so. Solaita, based upon his evaluation that the area of the stop was dark and otherwise not safe, (due, in part to its close proximity to a local nightclub), asked Miscoi if he would go to the main police station in Fagatogo to have the S.F.S.T. conducted. Solaita testified Miscoi agreed, so Solaita drove Miscoi in Miscoi’s car to the police station approximately 1 mile away from the scene of the traffic stop. During this ride of less than 5 minutes, Miscoi was in the front passenger’s seat and was not restrained by handcuffs or other security devices. Miscoi testified that he did not verbally agree to this transport, but had responded “whatever” to Solaita’s request and went with him to the station. Miscoi also stated it was dark at the traffic stop area. Upon cross-examination Solaita stated that areas closer to the traffic stop scene where the S.F.S.T.s might have been [**3**] conducted were either dark, or otherwise not suitable for safely conducting these tests. When Miscoi and Solaita arrived at the main station in Fagatogo, Miscoi was escorted inside where the S.F.S.T.s were conducted. Miscoi failed these tests, and was then arrested for Driving Under The Influence, (“DUI”), and read his Miranda rights. Miscoi then opted to take the breathalyzer test. DISCUSSION Miscoi withdrew, at the hearing, his objections to the use of the radar device by the police which prompted his vehicle stop. The stop, therefore, appears valid. Solaita observed Miscoi’s vehicle speeding, that speed was confirmed by the radar device and Miscoi’s vehicle duly stopped. This routine traffic stop for speeding soon evolved into a detention period embracing an on-site investigation for a possible D.U.I. and a transport of Miscoi to the Central Police Station to conduct the S.F.S.T.s. Miscoi broadly argues that the detention period, including his transport by police to the station, exceeded the brief period afforded police in such circumstances to verify or dispel the suspicion of a D.U.I. offense. Defendant therefore seeks to suppress the results of the S.F.S.T.s, the breathalyzer results and any statements he made during or after his transport to the police station. [**4**] [1] This court takes judicial notice of the history and development of the S.F.S.T.s. These uniform, field-testing procedures were developed by the National Highway Traffic Safety Administration (“NHTSA”) in response to high rates of vehicle crash fatalities related to impaired driving during the 1960s and 1970s. NHTSA had previously provided local police forces nation-wide with detection guides listing 20-24 examples of bad driving by a motorist predictive of driving under the influence. The follow-up S.F.S.T.s were researched and developed by NHTSA as police tools to use after a traffic stop was made to better assess whether probable cause existed to arrest a motorist for D.U.I. These tests performed by officers developing a reasonable suspicion that a stopped motorist is under the influence of alcohol or other drugs generally include the Horizontal Gaze Nystagmous Test (HGN), the 9-step Walk and Turn Test (WAT), and the One Leg Stand Test, (OLS). (The WAT and OLS tests are basically self-explanatory. The HGN test, on the other hand, relies upon studies of the effects of depressants, such as alcohol, upon a person’s central nervous system which naturally produce involuntary jerking of the eye’s iris when the effected person gazes to the side). In the early 1980s, NHTSA trained local police officers to learn and follow these standardized tests. During the training, officers learned how to administer standardized tests, observe a [**5**] subject’s performance, and score the performance in a standardized evaluation. [2] From a constitutional law standpoint, the S.F.S.T.s also further the protections afforded by the 4 th Amendment. A motorist stopped for a traffic violation who exhibits some level of intoxication during his initial contact with the police, would, within the few minutes necessary to undergo testing and evaluation at the scene of the traffic stop, reasonably expect to continue on his trip, (with or without a ticket for the violation prompting the initial stop), if he successfully performs the S.F.T.S.s. [3] As argued by Miscoi, the 4th Amendment of the U.S. Constitution protects him against unreasonable seizure. This court has held that a traffic stop, however brief, is a seizure under the 4 th Amendment, but generally not an unreasonable seizure absent prohibited police conduct. Miscoi cites Dunnaway v. New York, 422 U.S. 200 (1979), for his opinion that his transport and testing were in violation not only of his 4 th, but also his 5th, Amendment

protections against self-incrimination. In the Dunnaway case, a prisoner interviewed by police mentioned Dunnaway as a possible criminal suspect. Lacking probable cause to either arrest Dunnaway or obtain a search warrant, the police nonetheless picked up Dunnaway, took him to the police station, informed him of his Miranda rights, [**6**] and questioned him concerning the suspected criminal activity when he was in the police interrogation room. Dunnaway waived his rights, including his 6 th Amendment right to counsel, and made incriminating statements and drawings. The U.S. Supreme Court originally remanded this case for further hearings below based upon their then recent decision in Brown v. Illinois, 422 U.S. 590 (1975), holding that there was no per se rule to Miranda; simply reading a suspect his Miranda rights during a custodial interrogation by police does not cure the taint of an arrest on less than probable case. On remand the lower court, using a balancing test, concluded Dunnaway’s 4th, 5th, and 6th Amendment Rights were adequately protected during his custodial interrogation. The U.S. Supreme Court later reversed this, finding that the connection between the unconstitutional conduct by the police’s illegal arrest of Dunnaway and his subsequent incriminating statements and drawings was not sufficiently attenuated to permit the use at trial of that evidence. [4] The difficulty in applying Dunnaway to the instant matter is the lack of any incriminating statements made by Miscoi during this transport or station-house sobriety testing. As made clear in Pennsylvania v. Muniz, 496 U.S. 582 (1990), what is protected by the 5th Amendment is the accused’s right not to be compelled to testify against himself, ‴or otherwise provide the state with evidence of a testimonial or communicative [**7**] nature.‴ Id. At 589 (quoting Schmerber v. California, 384 U.S. 757, 761 (1966)). An accused may be compelled, however, by the state to produce “real or physical evidence”. To be testimonial, the communication must, explicitly or implicitly, relate a factual assertion or disclose information.” Id. (quoting Doe v. U.S., 487 U.S. 201, 210 (1988)). In the Muniz case, Muniz was arrested in the field for a D.U.I. and transported to a Booking Center. Without having been advised of his Miranda rights, during booking Muniz was required to answer booking questions and to perform standard sobriety tests, all of which were video-taped. The video, (and audio portion), was introduced at trial showing that Muniz slurred his speech, failed his sobriety tests, and made unsolicited incriminating statements during his sobriety tests. [5] Upon review, the U.S. Supreme Court held that all of this evidence, save the booking question and response by Muniz as to the date of his sixth birthday, could not be found to be testimonial and was therefore admissible against him at trial. Specifically, the Court held that the sobriety tests were carefully scripted and not designed to, nor would likely to be perceived as, requiring any response from Muniz. His statements during such tests were therefore voluntary. In yet another traffic D.U.I. case, the U.S. Supreme Court in Berkemer v. McCarty, 468 U.S. 420, (1984) addressed the [**8**] distinctions between a brief traffic stop detention and custodial interrogation. In Berkemer, the suspect driver was pulled over by police for weaving outside his traffic lane. He had difficulty standing when exiting his vehicle and was unable to perform the S.F.S.T.s without falling. Responding to the officer’s question the suspect admitted to drinking two beers and smoking marijuana a short time before the stop. He was arrested and driven to a local jail, where blood tests revealed no alcohol level. Although no Miranda rights had been given, police resumed questioning and the accused made incriminating statements. Under Ohio law, the D.U.I. violation was punishable as a misdemeanor. [6, 7] Upon review, the U.S. Supreme Court held that the same protections against unconstitutional custodial interrogations of persons arrested for felonies applies to misdemeanor arrests as well. The Court also held that the roadside questioning and administration of S.F.S.T.s at a routine traffic stop do not constitute “custodial interrogation” requiring Miranda warnings to be given. Although a stopped motorist’s “freedom of action” is curtailed and some pressure may be felt by the motorist to answer the officer’s questions, in most stops the motorist believes he will soon be back on his way. Moreover, a traffic stop is normally brief and conducted in public, rather than in a [**9**] “police dominated” station-house custodial interrogation setting requiring Miranda warnings. [8] The Court did note, however, that if a stopped motorist is subjected to treatment that renders him “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda.

[9] Also of relevance to the instant matter is the U.S. Supreme Court’s holding in U.S. v. Cortez, 449 U.S. 411, (1981), which addresses the reasonableness of a traffic stop detention duration and requires a “totality of circumstances” evaluation of the facts. We next apply these cases to the facts of Miscoi’s case. Miscoi’s traffic stop was made pursuant to an articulable suspicion by the police officer of a speeding violation. After observing Miscoi’s reddish eyes and slurred speech and smelling an odor of alcohol from his breath, (and, prior to transport, an admission by Miscoi of drinking an alcoholic beverage), Solaita advised Miscoi of the S.F.S.T.s and obtained Miscoi’s agreement to perform them. Based upon Solaita’s assessment of the scene of the stop, he announced he would drive Miscoi to the Central Police Station to conduct the tests. Miscoi acquiesced, and rode, unrestrained, in the passenger seat of his vehicle while Solaita drove Miscoi’s car approximately one mile from the scene of the stop to the Central Station where Miscoi was escorted [**10**] inside and performed the S.F.S.T.s, which he failed. Miscoi was then formally arrested for D.U.I., advised of his Miranda rights and of his right to refuse taking the breathalyzer test, and then performed the test. [10-12] Reviewed solely under the 4th, 5th, and 6th Amendments to the U.S. Constitution, and considering the totality of circumstances, the stop, detention and brief, voluntary transport to a safe location to conduct the S.F.S.T.s would not violate any of Miscoi’s U.S. Constitutional rights. Even if this court were to hold Miscoi had, for all practical purposes, been placed “in custody” during his transport, the Muniz case indicates that the non-testimonial evidence of sobriety tests performed in custody could still be introduced at his trial. This court is bound by the U.S. Supreme Court’s pronouncements concerning the parameters of protection afforded individuals under the 4 th Amendment. (See, generally, Penn. v. Labron, 518 U.S. 918 (1996); Arkansas v. Sullivan, 532 U.S. 769, (2001)). The Revised Constitution of American Samoa (“R.C.A.S.”), in Article I, Sec. 5, however, basically restates the language of the 4th Amendment to the U.S. Constitution and then adds a closing sentence, “Evidence obtained in violation of this section shall not be admitted in any court.” This constitutional protection must also be applied to the facts of this case, separate, and in addition to the U.S. Supreme Court’s [**11**] holding concerning the 4th Amendment. The language is both broad and unconditional. It prohibits a court from admitting (ostensibly from any party), any evidence obtained from an unreasonable search or seizure. [13] Applying Sec. 5. to the above analysis, this court still holds that Miscoi’s traffic stop, and brief voluntary transport in his vehicle to a safe public location to conduct the S.F.S.T.s, under a totality of the circumstances test, was not an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether Miscoi should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a D.U.I. violation, this brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent B.A.C. results. [14] The reasonableness of such seizures, however, decreases in direct proportion to the proximity of the police station and the decreased reasonable expectation of the detained suspect of promptly resuming his trip. A progression of loss of access to his vehicle, keys, and drivers’ license, by a suspect, coupled with his removal from a public place into the bowels of a police station, all in the absence of probable cause for his arrest, triggers Article I, Sec. 5 R.C.A.S. concerns. E.g., [**12**] Florida v. Roger, 460 U.S. 491, (1983) (for a similar progression in a case involving airlines travel). [15] The term “evidence” is not qualified or limited in Article I, Sec 5. R.C.A.S. Under this broad constitutional language, any evidence obtained from an unreasonable seizure may not be admitted in court. This language admits to no distinction between non-testimonial and testimonial evidence, nor even to voluntarily produced evidence, such as breathalyzer B.A.C. tests, if the earlier seizure of the suspect which caused this evidence to be generated was unreasonable. Notwithstanding the U.S. Supreme Court’s holdings as to types or categories of evidence which are or are not admissible at trial under the judicially created Exclusionary Rule, Article I, Sec 5 R.C.A.S. establishes a broad constitutional guarantee that evidence, (ostensibly, all evidence), obtained from an unreasonable search or seizure is not admissible in the courts of this Territory. [16, 17] In the instant case, Miscoi’s initial stop was for a routine speeding violation, (30 mph in a 20 mph zone). Solaita noticed an odor of alcohol from Miscoi’s breath, reddish eyes, and slurred speech during his initial encounter with Miscoi, and at some point prior to transport, Miscoi admitted consuming an alcoholic beverage prior to the stop. Both Miscoi and Solaita testified that the scene of the stop was dark. These facts present a barely sufficient basis, objectively viewed, for the [**13**] Officer to conduct S.F.S.T.s. There was no testimony as to Miscoi

exhibiting any driving behavior, even during the pursuit and traffic stop, indicating impaired driving. Although the standard litany of red eyes, slurred speech and odor of alcohol was recited by the Officer, no details, degrees or examples, such as “strong odor” “bright red” or “bloodshot”, or “barely understandable”, were used. No testimony was presented as to impaired motor skill functions of Miscoi such as swaying, staggering, or fumbling with his documents during the initial stop, prior to the transport. 1 By any standard of reasonableness applied, Solaita did not, at the time of Miscoi’s voluntary transport, have probable cause to arrest him for a D.U.I. violation. 2 The court recognizes that any traffic stop [**14**] involves increased risks to the personal safety of the police officer and may present increased risks to the driver and vehicle occupants as well. Even on main highways some vehicle stops may occur in places unsafe for either or both; moreover, village roadways are narrow and without road shoulders, sidewalks, or even lighting adequate to conduct nighttime S.F.S.T.s. Given the historically large numbers of D.U.I. citations issued in the Territory, it seems reasonable that the Department of Public Safety could have developed standard procedures, including surveying, identifying, and designating public locations reasonably near known “unsafe” roadway areas, to which police could briefly transport a D.U.I. suspect for S.F.S.T. purposes. 3 [**15**] [18] The court also appreciates that the field sobriety testing procedures and even the roadside breathalyzer testing devices developed to allow officers to ascertain and test probable cause for a D.U.I. arrest were intended for use, as their names imply, at or near the scene of the traffic stop. As clearly set forth in Berkemer, the reasonableness of a 1

This Court is well aware of chronic alcohol and other drug abuse levels within this small island community. In addition to handling dozens to hundreds of DUI cases each year, the Court also hears over 600 adult criminal cases, misdemeanor and felony, involving peace disturbances, assault, domestic violence, child abuse, etc. which are alcohol related. Nearly one half of this Court’s juvenile caseload of over 300 cases each year also involve alcohol or other drugs. A significant percentage of D.U.I. cases also present elevated levels of alcohol, well over twice the legal limit of .08% B.A.C.. But for the island’s smallness, causing vehicle trips generally to be of short duration and a maximum speed limit of 30 m.p.h., the current level of vehicle crashes, injuries, and fatalities would be substantially higher than currently prevail. 2

Under the Territory’s “Implied Consent” statutes, (A.S.C.A. § 22.0601-.0612), motorists operating on the highway in this Territory are deemed to have consented to a chemical test of breath, blood, urine, or saliva if arrested for D.U.I. Prior to the standard breathalyzer test used for these purposes by the Department of Public Safety, the arrested driver is advised of the test, the possible administrative suspension of driving privileges in the Territory for refusing the test, and the availability of additional (blood) testing for the driver if the B.A.C. is performed. (The driver, having been previously placed under arrest would have, according to standard police practices, also been read Miranda warnings). The Court notes that, although drivers are arrested for D.U.I. prior to the B.A.C. testing, in those cases where the B.A.C. results are less than the legal impairment limit of .08%, the arresting officers may, and frequently have, then issued the driver uniform traffic citations for the offense prompting the traffic stop along with a careless driving citation addressing the “impaired” but not legally “under the influence of intoxicating liquor or drugs” motor vehicle operation of the driver. 3

This Court well appreciates the risks daily, (and especially nightly), faced by the Police Officers of this Territory. Officers are not equipped with firearms in the Territory and often are faced with suspects under the influence of alcohol exhibiting belligerence, verbal abuse, physical resistance or violence during initial police contact. The ever present risk of roadside injury from other vehicles only increases during nighttime vehicle stops. Even an otherwise safe stop area can immediately become unsafe due to heavy rains, winds, or flooding. Any number of variable circumstances could render a brief voluntary transport of a D.U.I. suspect to a nearby alternative public testing site reasonable. As this case demonstrates, however, standardized procedures need to be developed and utilized in such circumstances. A single police officer transporting an unrestrained suspect in that suspect’s vehicle does not strike this Court as being much, if any, more “safe” than at the scene with other officers. The vehicle’s mechanical condition is unknown and the suspect has ready access to all items in the vehicle known to him, but unknown to the officer, such as weapons, contraband, or even more alcohol that could affect further testing. The suspect also, through impaired accidental movement or by design, has ready access to an unlocked door during this transport. For both officer and citizen safety, these recurrent roadside enforcement risks need to be reevaluated and safe standardized procedures adopted and utilized.

brief seizure of a motorist on a public highway and investigatory detention is based upon its short duration and being conducted publicly. 468 U.S. at 437-40. These aspects preserve an acceptable balance between the police power of the government and the motorist’s constitutional rights. If those circumstances are altered to the extent that for all practical purposes, the motorist is in police custody with no reasonable expectation of ready release, the government must be able to demonstrate the Officer had [**16**] probable cause for any such seizure. 4 Although motivated by legitimate concerns for officer and suspect safety, briefly exercised with a minimum of individual restraint upon Miscoi and with his consent and cooperation, the rapid transition from a public roadside vehicle stop to a police dominated room at the Central Station, for all practical purposes, put Miscoi in police custody. The officer lacked, at that time, probable cause to do so. Miscoi’s seizure at that point became unreasonable and any evidence, voluntary, involuntary, before a Miranda reading, or after, cannot be admitted before this Court under Article I, Sec 5. of the R.C.A.S. The present practice of routinely transporting D.U.I. suspects to police stations for in-custody “field” sobriety testing, in the absence of probable cause for arrest or other compelling, reasonable circumstances, neither significantly increases officer or suspect safety levels, nor preserves an individual’s constitutional rights against unreasonable seizure by the government. Other reasonable, alternative approaches are routinely employed by police departments throughout the United States, including portable hand-held devices to develop evidence supporting [**17**] probable cause, as the officers fulfill their public duty to keep public roadways safe from alcohol or other drug-impaired motorists. Given the strict sanctions provided by Article I, Sec. 5 of the R.C.A.S., these compelling public safety issues require the immediate and active consideration of such alternative approaches by the government. CONCLUSION [19] This opinion deals with the narrow issue of traffic stops and subsequent brief detention of motorists by police officers suspecting alcohol or other drug impairment of the detained driver. The statutes and caselaw of this Territory (as well as other jurisdictions), contemplate that a driver stopped by police will generally be briefly detained, issued a traffic citation or given a warning, and be allowed to resume the route to the driver’s destination. Any further detention of the driver must be, under a totality of the circumstances, reasonable, and that detention of no longer duration than necessary to promptly complete the officer’s investigation. Unlike other police-citizen encounters in non-traffic situations (where an individual might voluntarily consent to appear for police questioning at a station-house, be advised of his freedom to leave and Miranda rights, and then voluntarily waive those rights and make incriminating statements that would be [**18**] admissible in court), separate and distinct considerations arise in traffic stop, detention, and D.U.I. arrest situations. [20, 21] This opinion is limited not only to traffic stops, detention, and traffic-related arrest situations, it is also limited to the facts of this case. Miscoi was stopped in his vehicle in the early morning hours driving home alone. His brief voluntary transport to conduct field sobriety tests at a safer location resulted in being directly transported to the Central Police Station, escorted inside, placed in a room and requested to perform physical acts, (S.F.S.T.s), the results of which would be used as evidence against him in any subsequent prosecution for D.U.I. At or reasonably near the traffic stop scene, Miscoi’s public performance of S.F.S.T.s would not have required prior Miranda warnings. Even incriminating statements made by Miscoi during the performance of such tests at the scene prior to arrest would have been generally admissible in court under caselaw previously cited herein. Further, S.F.S.T.s could also have been conducted or re-conducted at a police station if Miscoi had been validly arrested for D.U.I. at or reasonably near the traffic stop. The police lacked probable cause to arrest Miscoi at the traffic stop and selected a police secured and dominated non-public room to continue to gather evidence supporting probable cause for Miscoi’s arrest for D.U.I. Miscoi was not Mirandized before conducting the S.F.S.T.s. Although [**19**] his S.F.S.T. results, being non-testimonial, could arguably be admitted against him, as well as the subsequent breathalyzer test results based upon his “voluntary” performance of same, under caselaw cited above interpreting the 4th, 5th, and 6th Amendments to the U.S. Constitution, those test results become inadmissible in court under Article I, Sec. 5 of the R.C.A.S. Conceivably, upon his police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, Miscoi was in custody for all practical purposes, without probable cause to support this seizure. These S.F.S.T.s are therefore inadmissible in court. And, because those results provided, in the officer’s belief, probable cause then existed to arrest Miscoi for D.U.I., and Miscoi was then read his Miranda rights, 4

The Peleti case at Substation West some years ago whereby a suspect was beaten by police officers while restrained inside the station and subsequently died, still is within the common ken of this community. That case tragically underscores how an individual such as Miscoi could assess his situation and immediate options to perform or refuse the S.F.S.T.s while inside a closed room at the Central Police Station.

and advised of and consented to a breathalyzer test, that B.A.C. test result evidence is also inadmissible in court. The taint of the illegal police custody of Miscoi prior to the S.F.S.T.s being conducted cannot be attenuated under the facts of this case by his being Mirandized and then performing “voluntarily”, the breathalyzer test. To hold otherwise in this matter would grant approval to the very excesses of the government’s police powers that Article I, Sec. 5 of the R.C.A.S. sought to curb by prohibiting the admission of such evidence. Any and all evidence the government collected after Miscoi was escorted into the Central Police Station in the early [**20**] morning hours of 4 September 2011 is held to be inadmissible, by either A.S.G. or Miscoi, in court pursuant to Article I, Sec. 5 of the R.C.A.S.. The government has 15 days in which to advise the court as to whether any additional charges will be filed concerning this matter, and whether or how it wishes to proceed in U.T.C. 286246, and the accompanying speeding charge of U.T.C. 286246. A status hearing will be conducted March 29, 2012 at 8:30 A.M. by this court. So Ordered.

Cite As: Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at ____ [page number] (Dist. Ct. Mar. 26, 2012).

AMERICAN SAMOA GOVERNMENT, Plaintiff, v. JOHN MICHAEL MCDONALD, Defendant. ___________________________________ The District Court of American Samoa UTC No. 298980 March 4, 2012 [1] The District Court has repeatedly ruled in bench decisions in D.U.I. cases that a brief detention of a motorist at a traffic stop while a trained and certified D.U.I. police officer is promptly brought to the stop scene does not on its face create an unreasonable seizure of the motorist. If the officer initiating the traffic stop has an articulable basis for initiating that stop, the initial stop is constitutionally valid. [2] After a traffic stop based on an articulable basis, if the officer develops a reasonable suspicion that the driver had consumed alcohol or other drugs and might be intoxicated, a brief detention of the driver while a certified, trained D.U.I. police officer is promptly brought to the scene to take over the case development and evaluation of factors suggesting intoxication is also reasonable under the circumstances. [3] If a police-officer had seen a driver commit a moving violation and subsequently had articulable reasons to suspect that the driver was inebriated, a brief transport of the driver from the traffic stop scene to a safe, public location to conduct Standardized Field Sobriety Tests, when warranted by the unsafe conditions prevailing at the scene, does not generally turn the detention of the driver into an arrest. [4] If a police-officer had seen a driver commit a moving violation and subsequently had some reasons to suspect that the driver was inebriated, transportation of the driver to a police substation, where the police officer escorted the driver inside the substation and conducted the Standardized Field Sobriety Tests therein, such practices effectively result in the driver being placed in police custody, and in the absence of probable cause for the officer to arrest, this seizure is no longer reasonable. Evidence obtained thereafter becomes inadmissible in court. REV. CONST. OF AM. SAMOA art I, § 5. [5] Where officers saw a driver perform two instances of unsafe driving; and upon pulling the driver over, the driver told one officer he consumed two beers but changed his story to admitting consumption of four to six beers to the other officer; and moreover the driver’s physical state of having red, watery eyes, an odor of alcohol on his breath, an inability to stand outside his vehicle without using the vehicle for support, and difficulty in pulling out his wallet to present identification—all of this indicates under a totality of the circumstances that the officers had probable cause to seize the driver. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 6-7 (Dist. Ct. Mar. 26, 2012). [6] When officers under a totality of the circumstances had probable cause to seize a driver, the driver’s performance of Standardized Field Sobriety Tests (non-testimonial evidence) in a police sub-station does not require a reading of Miranda rights as the results of those tests are non-testimonial evidence and admissible in court. Before: WARD, District Court Judge Counsel:

For the Plaintiff, Camille Philippe, Assistant Attorney General.

For the Defendant, David P. Vargas, Esq. OPINION AND ORDER This motion to suppress the B.A.C. (Blood Alcohol Content breathalyzer test) and Standardized Field Sobriety Test (“S.F.S.T.”) results of Defendant John Michael McDonald (“McDonald”), conducted on 24 November 2011 in the Territory, came on regularly before the court on 16 February 2012. Testimony was presented by Public Safety Officers Leapai (“Leapai”) and Parker (“Parker”), and the Defendant’s wife, Mrs. McDonald. From that testimony the Court finds the following facts. At approximately 1:30 A.M. on 24 November 2011, a police trainee accompanied Leapai at or near the village of Nuuuli; both were patrolling the roadway heading from the Lion’s Park area towards the intersection with the main highway in a police unit. Leapai noticed that the taillights of the vehicle ahead of his unit were not illuminated. Subsequently he observed the vehicle [**2**] swerve out of its lane before reaching the intersection and again swerving out of its lane upon entering, east bound, the main highway. Leapai pulled over that vehicle shortly thereafter at or near the parking lot of the K-2 Store. Leapai approached the vehicle’s driver, whom he identified in court as McDonald, and advised him as to the reason for the traffic stop. While speaking with McDonald, Leapai observed that his eyes were red and detected an odor of alcohol on his breath. Leapai asked McDonald if he had consumed an alcoholic beverage and McDonald responded he had only consumed 2 beers at a party earlier. Leapai asked McDonald to step out of the vehicle and then advised him he would call another police officer to the scene to determine if McDonald could safely continue to drive. Soon thereafter Officer Parker arrived on the scene. Parker is a certified D.U.I. Officer, trained to administer and evaluate S.F.S.T.s and breathalyzer tests. Parker testified that upon arriving at the scene of the traffic stop, and after being briefed by Leapai as to what had occurred before Parker’s arrival, Parker noticed that McDonald had red, watery eyes and detected an odor of alcohol coming from his person. Parker re-advised McDonald as to the basis for the stop and asked McDonald if he had been drinking. McDonald responded that yes, he had been drinking earlier and had consumed 4-6 Steinlager beers. Again Parker noticed the odor of alcohol on McDonald’s breath, [**3**] and observed that during this conversation McDonald was swaying back and forth and leaning back against the car to maintain his balance. When asked for identification, McDonald also had difficulty in pulling out his wallet and producing his driver’s license. Parker next attempted to question McDonald’s wife, who was in the passenger seat of McDonald’s vehicle, but she was unresponsive. Parker noticed she appeared to be angry or upset and was crying. Leapai remained at the scene during this period and his trainee partner remained inside the police unit during the stop. Parker next advised McDonald about conducting the S.F.S.T.s and obtained McDonald’s consent to perform the tests. Parker, evaluating the traffic stop scene as both poorly-lit and not presenting a level ‘floor’ for conducting the tests, explained to McDonald that he would transport McDonald to the nearby Department of Public Safety Substation (“Substation West”) to conduct the tests. Parker also informed McDonald he was not under arrest at that time. On cross examination and redirect, Parker testified he was a 5-year veteran of the Department of Public Safety, having conducted 50-60 D.U.I. investigations and/or arrests. He stated that some S.F.S.T.s were conducted at the scene of the traffic stop if they could be safely performed there, but if not, the driver would be transported back to the [**4**] police station to conduct the S.F.S.T.s there. Parker also stated that McDonald gave him consent to drive McDonald’s car to Substation West, with McDonald seated behind Parker in the backseat, and Mrs. McDonald seated in the front passenger’s seat. Leapai followed in Parker’s unit with Leapai’s trainee partner driving Leapai’s unit. At Substation West, McDonald was escorted inside the police station where he performed and failed the S.F.S.T.s, was formally arrested for D.U.I., advised of his Miranda rights, and opted to perform a breathalyzer test. Mrs. McDonald testified that at the scene of the traffic stop adjacent businesses, including Talofa Video and the Nuuuli Shopping Center, had well-lit, level parking areas where the S.F.S.T.s could have been promptly performed. She also stated that the transport time from the stop scene to Substation West was no more than 5 minutes in duration. ISSUES McDonald contends that because Parker did not personally observe him operating his vehicle on the roadway, Parker could not lawfully arrest him for D.U.I. Further, McDonald argues that because his vehicle was stopped for mechanical defects, his detention upon suspicion of D.U.I. was unreasonable. Finally, McDonald contends that he

was taken into police custody without probable cause, thereby rendering all subsequent evidence obtained inadmissible in court. [**5**] DISCUSSION Recently this Court issued an Opinion and Order suppressing S.F.S.T.s and breathalyzer test results in Am. Samoa Gov’t. v. Miscoi, UTC Nos. 286246 and 286247 (slip op. (Dist. Ct. March 14, 2012), involving several facts not facially dissimilar to many of those presented in this case. 1 In deciding the issues presented in this case, the Court adopts its reasoning and caselaw citations used in Miscoi and will frequently reference it. [1, 2] With respect to McDonald’s first issue, this Court has repeatedly ruled in bench decisions in cases presenting similar facts that a brief detention of a motorist at a traffic stop while a trained and certified D.U.I. police officer is promptly brought to the stop scene does not on its face create an unreasonable seizure of the motorist. If the officer initiating the traffic stop has an articulable basis for initiating that stop under Whren v. U.S., 517 U.S. 806 (1996), the initial stop is constitutionally valid. After that traffic stop, if the officer develops a reasonable suspicion that the driver had [**6**] consumed alcohol or other drugs and might be intoxicated, a brief detention of the driver while a certified, trained D.U.I. police officer is promptly brought to the scene to take over the case development and evaluation of factors suggesting intoxication is also reasonable under the circumstances. [3, 4] As this Court held in Miscoi, a brief transport of the driver from the traffic stop scene to a safe, public location to conduct S.F.S.T.s, when warranted by the unsafe conditions prevailing at the scene, does not generally turn the detention of the driver into an arrest. In the instant case, Parker briefly transported McDonald to Substation West, took him inside the police station, and conducted the “field” tests there. As this Court held in Miscoi, such practices effectively result in the driver being placed in police custody, and in the absence of probable cause for the officer to arrest, this seizure is no longer reasonable. Evidence obtained thereafter becomes inadmissible in court. REV. CONST. OF AM. SAMOA art. I, § 5. [5] In this case, however, under a totality of the circumstances test, Officer Parker had probable cause to seize McDonald prior to transporting McDonald to Substation West. Officer Leapai observed, in addition to the taillights’ defective condition, two instances of unsafe driving by [**7**] McDonald. McDonald told Leapai he had consumed two beers, but changed his story to Officer Parker and admitted to consuming 4-6 Steinlagers. Parker observed McDonald at the stop to have red, watery eyes, and detected the odor of alcohol on his breath. In addition, McDonald was unable to maintain his balance standing outside his vehicle without using the vehicle for support. Further, McDonald exhibited difficulty in pulling out his wallet and presenting identification. [6] Notwithstanding Parker’s statement to McDonald at the stop scene that he was not under arrest, there was probable cause to take McDonald into police custody immediately before his transport to Substation West. Because this seizure of McDonald was supported by probable cause, the subsequent results of the S.F.S.T.s and the breathalyzer test are admissible in court as evidence. See, generally, Pennsylvania v. Muniz, 496 U.S. 582 (1990); Miscoi, UTC Nos. 286246 & 286247. CONCLUSION In Miscoi, the police officer lacked probable cause to find and charge the driver at the scene of the traffic stop with being under the influence of intoxicating liquor rendering him incapable of safely driving (A.S.C.A. § 22.0707). Evidence obtained from Miscoi after being effectively placed in police custody at the Central Police Station was therefore inadmissible in court. REV. CONST. OF AM. SAMOA art. I, § 5. [**8**] In the instant matter, Officer Parker did have probable cause at the scene of the traffic stop to find and charge McDonald with violating A.S.C.A. § 22.0707. The seizure of McDonald being a reasonable one supported by probable cause, his motion to suppress the test results of the S.F.S.T.s and the breathalyzer is denied. 2 1

In the Miscoi case, Miscoi was stopped for speeding and had pulled over in a poorly-lit area. Because Miscoi exhibited some indicia of alcohol consumption at the scene of the stop, police officers subsequently transported Miscoi to the Central Police Station for continued S.F.S.T. and breathalyzer analysis. This Court ruled that under the totality of the circumstances, the police officers lacked the probable cause necessary to arrest Miscoi for D.U.I. at the scene of the stop. This Court further ruled that Miscoi’s subsequent seizure and transport to the Central Police Station was unreasonable, and therefore suppressed the S.F.S.T. and breathalyzer test results. Cf. REV. CONST. OF AM. SAMOA art. I, § 5.

ORDER So Ordered. Further, this matter is calendared for a pre-trial hearing on 10 April 2012 at 8:30 A.M.

2

As more fully set forth in Miscoi, the present police practice of routinely transporting D.U.I. suspects from the traffic stop scene to the police station is facially suspect. Safer, quicker, and constitutionally permissible alternatives are readily available. The Department of Public Safety and the Office of the Attorney General are strongly admonished to review and revise this practice at their earliest opportunity.

OPINIONS OF THE

TRIAL DIVISION OF THE

HIGH COURT OF AMERICAN SAMOA (2012)

Cite As: Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at ____ [pincite page number] (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). HUBERT VERGARA, Plaintiff, v. AMERICAN SAMOA GOVERNMENT, and DOES I through X, Defendants. ___________________________________ High Court of American Samoa Trial Division CA No. 86-11 Feb. 9, 2012

[1] The court is not constrained to view complaints penned by an attorney as laxly as the court would one authored by a pro se litigant. [2] “A pleading which sets forth a claim for relief...shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” T.C.R.C.P. 8(a). Under T.C.R.C.P. 8(a), a plaintiff must allege enough facts to sustain a claim; additionally, the plaintiff’s complaint (composed of such claims) must be plausible. [3] A defendant may challenge a complaint’s plausibility under a T.C.R.C.P. 12(b)(6) motion. [4] The test employed when determining the plausibility of a complaint is two-fold. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts (“naked assertions”). Accordingly, if the facts are “naked assertions,” the court need not consider those facts as true. Secondly, only a complaint that states a plausible claim for relief survives a T.C.R.C.P. 12(b)(6) motion. The second prong is “context specific” and the court draws from its own experience and common sense when making this determination. Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only the possibility of misconduct, and nothing more, the complaint fails because it [**5**] alleges but does not show its pleader is entitled to relief. [5] When the plausibility of a complaint is questioned and shown by an opposing party to be lacking, the pleader’s failure to show entitlement to relief violates T.C.R.C.P. 8(a) and the complaint is subject to dismissal under T.C.R.C.P. 12(b)(6). [6] Where a plaintiff’s complaint is muddled with “naked assertions” the court need not consider those assertions true, and where the claims are so distorted that they permit the court at most to infer the mere “possibility of misconduct;” the Complaint fails the plausibility standard and is subject to dismissal under T.C.R.C.P. 12(b)(6). [7] An action for damages premised under 42 U.S.C. §§ 1983 & 1985 cannot lie against the American Samoa Government as the government is not a “person” within the meaning of those federal statutes. [8] The elements of negligence are: (1) Duty—a duty to use reasonable care; (2) Breach—a failure to conform to the required standard of care; (3) Causation—a reasonably close causal connection between the conduct and the resulting injury; and (4) Damages—an actual loss or damage resulting to the interests of another. Before KRUSE, Chief Justice, and FA’AMAUSILI, Associate Judge. Counsel:

For Plaintiff, Mark F. Ude,

For Defendant, Daniel M. Woods, Assistant Attorney General ORDER ON DEFENDANT’S MOTION TO DISMISS BACKGROUND Plaintiff Hubert Vergara (“Vergara”) is a prisoner currently incarcerated at the Territorial Correctional Facility (“TCF”) for a previous felony conviction. His present action against American Samoa Government (“ASG”) and other unnamed defendants is for a slew of perceived wrongs with his confinement: denial of visitation, denial of transportation to a medical facility for an unnamed ailment, being housed in an overcrowded cell, denial of work release, etc. While Vergara requests legal (money) damages, curiously he does not seek a special writ curing these perceived wrongs--wrongs Vergara premises on indistinct torts and constitutional challenges. 1 In a previous civil action filed in [**2**] 2009, Vergara attempted a habeas corpus petition to cure many of the wrongs alleged in this present action; the previous court found that Vergara was violating various (and constitutionally justifiable) prison rules which led to prisoner privilege-revocations—accordingly, Vergara’s habeas corpus petition was dismissed. See generally, Vergara v. Am. Samoa Gov’t, CA No. 36-09, slip op. (Trial Div. Oct. 16, 2009).2 On June 2, 2011, Vergara allegedly filed his Administrative Claim Letter with the Attorney General’s Office, asserting indistinct torts and constitutional challenges—claims Vergara assumes may be availed under Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq. Three months later, the Attorney General failed to respond, amounting to a denial of the Administrative Claim Letter. This inaction, thereby granted this Court putative jurisdiction over Vergara’s December 6, 2011 Complaint (pursuant to A.S.C.A. § 43.1205(b) and A.S.C.A. § 43.1209). However, Vergara’s Complaint, (as addressed infra) is totally deficient. On December 22, 2011, ASG filed a T.C.R.C.P. 12(b)(6) motion (failure to state a claim upon which relief can be granted) challenging the sufficiency of three of Vergara’s four claims. [**3**] On January 9, 2012, Vergara filed an Opposition.3 On January 12, 2012, ASG’s motion came on for hearing, with both parties appearing through counsel. DISCUSSION [1] We initially note that the Court is not constrained to view complaints penned by an attorney as laxly as we would one authored by a pro se litigant. See, e.g., Siamau v. Am. Samoa Gov’t, 7 A.S.R.3d 130, 131 (Trial Div. 2003) (“We examine the pro se pleadings in this case as broadly as possible without regard to the technical niceties demanded of attorney-drafted pleadings.”); Am. Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32, 34 (Trial Div. 1987) (Court adopts a “flexible approach to construction of [pro se plaintiff’s pleadings because] the pleadings [came] from the cell of a pro se defendant rather than from the pen of a schooled attorney.”). Indeed, we dismiss Vergara’s entire Complaint because of the pleading’s [**4**] deficiencies. [2,3] “A pleading which sets forth a claim for relief...shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” T.C.R.C.P. 8(a). Under T.C.R.C.P. 8(a), a plaintiff must allege enough facts to sustain a claim; additionally, the plaintiff’s complaint (composed of such claims) must be plausible. See Bell Atlantic Corp. v. 1

Vergara should not confuse constitutional violations as inherent grounds for money damages. We do not know whether Vergara still suffers from his medical ailment which (based upon reading Vergara’s earlier CA No. 36-09 case file and not his pleadings or papers in the present action) is an ulcer, but it strikes us as curious if indeed Vergara is still suffering from an ulcer that he would seek out money damages rather than a special writ. 3 Vergara stated in his Opposition, “Under T.C.R.C.P. 12(b)(6)...the moving party (Defendant ASG) has the burden of proof. Under this burden, Defendant ASG is obligated to show, either by way of affidavits and/or evidence properly submitted to support allegations made in its pleading, that the facts as alleged by Plaintiff are false or untrue. None of this has accompanied Defendant’s motion, only self-serving statements indicating insufficient basis for Plaintiff to file suit.” Pl.’s Opposition to Def.’s Mot. to Dismiss at 2-3, Vergara v. Am. Samoa Gov’t, CA No. 86-11 (filed Jan. 9, 2012). The legal “burden” Vergara describes is, of course, nonexistent. Vergara continues, “In the Motion to Dismiss a Claim for failure to State a Claim pursuant to T.C.R.C.P., [sic] 12(b)(6), the Defendant has not properly submitted either affidavits or other evidence supporting allegations made by Defendant ASG. Neither has Defendant ASG properly referenced any evidence already submitted, and on this basis the Motion to Dismiss should be denied.” Id. at 3. This argument is similarly devoid of legal accuracy. 2

Twombly, 550 U.S. 544, 557 (2007). Indeed, a defendant may challenge a complaint’s plausibility under a T.C.R.C.P. 12(b)(6) motion (as ASG has done here). [4] The test employed when determining the plausibility of a complaint is two-fold. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts (“naked assertions”). Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949-50 (2009) (citations omitted). Accordingly, if the facts are “naked assertions,” the court need not consider those facts as true. Id. Secondly, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950 (citations omitted). The second prong is “context specific” and the court draws from its own “experience and common sense” when making this determination. Id. (citations omitted). Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only “the possibility of misconduct,” and nothing more, the complaint fails because it [**5**] alleges but does not show its pleader is entitled to relief. Id. [5] The Trial Court Rules of Civil Procedure parallel the Federal Court Rules of Civil Procedure under evaluation in Iqbal and Twombly. We find the plausibility standard employed in Iqbal and Twombly highly persuasive and adopt it here. Consequently, when raised by an opposing party, the pleader’s failure to show entitlement to relief violates T.C.R.C.P. 8(a) and is subject to dismissal. [6-8] Vergara’s entire Complaint is muddled with “naked assertions” we need not consider true, and Vergara’s claims are so distorted that they permit this court at most to infer the mere “possibility of misconduct;” the Complaint therefore fails the plausibility standard articulated in Iqbal and Twombly. Vergara’s claims are entitled thusly: (1) “Breach of Contract;” (2) “Negligent Assumption of a Duty;” (3) “Overcrowding;” and (4) “Plaintiff Denied Work Release.” Plaintiff assumes a contract exists in his first claim, yet provides no facts to sustain such an assumption (only “naked assertions”). Vergara’s “Overcrowding” claim contains vague torts 4 and alleges constitutional violations premised under 28 [**6**] U.S.C. §§ 1983 & 1985 against ASG, where no such claim can lie. Ferstle v. Am. Samoa Gov’t, 4 A.S.R.2d 160, 166-67 (Trial Div. 1987) (an action for damages premised under 42 U.S.C. §§ 1983 & 1985 cannot lie against the American Samoa Government as the government is not a “person” within the meaning of those federal statutes). Vergara’s fourth claim nonchalantly assumes that the revocation of work release when previously granted is inherently “negligent.” Along with ASG, we too are nonplused as to what Vergara premises his “Plaintiff Denied Work Release” claim upon. Additionally, the casualness with which Vergara’s counsel throws about the term “negligence” is particularly disconcerting. Indeed, Vergara’s second claim is entitled “Negligent Assumption of a Duty.” This heading beguilingly poses as a legal phrase, but is not. The phrase, at most, amounts to an element of negligence (duty), and is not per se a cognizable claim. Though a lesson in simple negligence hardly befits a practicing and licensed attorney, we nevertheless print its elements here: (1) Duty—“a duty to use reasonable care;” (2) Breach—“a failure to conform to the required standard [of care];” (3) Causation—“a reasonably close causal connection between the conduct and the resulting injury;” and (4) Damages—“an actual loss or damage resulting to the interests of another.” VICTOR E. SCHWARTZ ET AL., PROSSER, WADE AND SCHWARTZ’S TORTS CASES AND MATERIALS 132 (11th ed. [**7**] 2005). When making future negligence claims before this Court, Plaintiff’s counsel would do well to actually contemplate and allege facts that satisfy the elements of negligence (along with outlining the elements themselves). More importantly, we caution that counsel to organize his pleadings clearly; state legal claims premised upon facts and not “naked assertions;” name proper defendants so as to afford notice to opposing parties; and articulate a legal posture plainly so that this Court can address proper relief. For reasons discussed, the Complaint is dismissed without prejudice. It is so ordered.

4

“Plaintiff asserts that Defendant ASG’s overcrowding of prisoners into a tightly limited space with complete disregard for the effects upon the prison populace is clear per se negligence.” Pl.’s Opp. to Def’s Mot. to Dismiss at 5, Vergara v. Am. Samoa Gov’t, CA No. 86-11 (filed Jan. 9, 2012). Besides not including this argument in his Complaint, we assume Vergara refers to the legal concept of “negligence per se,” (though we cannot be certain); however, the clarity of this claim is ironically lost on us because Vergara not only failed to include the elements of a “negligence per se” claim (which include violation of a statute), but he also did not provide any well-pleaded facts which would entitle him to relief under such a theory.

Cite As: Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at ____ (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum. j. and dismissal).

MISI SOLOA and TUSIGAIGOA SOLOA, Plaintiffs, v. AMERICAN SAMOA GOVERNMENT, Defendant. High Court of American Samoa Trial Division CA No. 77-07 March 29, 2012

[1] Under the Government Tort Liability Act, the court lacks subject matter jurisdiction to hear a tort claim against the government unless the claimant first exhausts the administrative remedy established under A.S.C.A. § 43.1205(a). [2] Section 43.1205(b) authorizes the Attorney General to settle administrative claims under the regulations encapsulated in A.S.A.C. §§ 43.0101-43.0108. [3] 28 U.S.C. § 2672, the federal counterpart to A.S.C.A. § 43.1205(b), confers authority upon regulatory agencies to settle administrative claims. It specifically requires the reviewing agency to conduct its review in accordance with regulations prescribed by the Attorney General. 28 C.F.R. § 14.4, the federal counterpart to A.S.A.C. § 43.0105, is the regulation that prescribes what information in addition to the administrative claim that the reviewing agency may require from the claimant in order to conduct its investigation. [4] Federal courts have interpreted 28 U.S.C. §§ 2672 and 2675 as not incorporating 28 C.F.R. § 14.4 because of the concern that it could allow the federal agencies to indefinitely forestall valid claims against the Federal Government by requesting additional information from a claimant on grounds that the administrative claim is deficient. [5] The Fono enacted the Government Tort Liability Act (“GTLA”) for the same reason Congress passed the Federal Tort Claims Act (“FTCA”): to waive the government’s sovereign immunity so as to provide those who have suffered, as a consequence of the government’s tortious conduct, with a legal avenue of redress and to hold the government accountable for its actions. It is this overriding purpose, and the textual similarities that the GTLA and the FTCA share, that ultimately carry the greatest weight. As such, the court finds federal case law interpreting the FTCA to be an appropriate and instructive source of persuasive authority for interpreting A.S.C.A. § 43.1205 and A.S.A.C. § 43.0105 and for determining whether the regulation is incorporated into the statute. A.S.C.A. § 43.1205 does not incorporate A.S.A.C. §§ 43.0101-43.0108. [6] The High Court’s jurisdiction is still predicated on the presentment of a claim to the Attorney General. This is clearly stated in A.S.C.A. § 43.1205. Such a claim, however, is deemed presented so long as the administrative claim presented to the Attorney General (1) reasonably notifies the Attorney General of the incident and (2) includes a claim for money damages for a sum certain. [7] If the Attorney General’s Office does not respond to an administrative claim letter within three months, the court will treat that silence as a rejection of the administrative claim letter and deem that the plaintiff has exhausted his administrative remedies, which will in turn grant the court subject matter jurisdiction over a claim brought under the Government Tort Liability Act.

Before RICHMOND, Associate Justice, and MAMEA, Associate Judge.

Counsel:

For Plaintiffs: Fiti A. Sunia. For Defendant: Kevin Kornegay, Assistant Attorney General.

ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND DISMISSAL Before the Court is Defendant’s Motion for Reconsideration of Order Denying Motions for Summary Judgment and Dismissal. Defendant argues that we erred when we denied Defendant’s summary judgment motion and found that we had subject matter jurisdiction over the claim. Defendant, therefore, maintains that we lack subject matter jurisdiction over Plaintiffs’ claim because Plaintiffs have failed to exhaust all of their administrative remedies. According to Defendant, Plaintiffs were required to provide the Attorney General with information in addition to what they provided in their administrative claim; as such, Plaintiffs have [**2**] failed to exhaust their administrative remedies. At the heart of Defendant’s argument is the issue of whether the GTLA incorporates the regulations, which require a claimant to submit additional information aside from that already mandated by the GTLA. Needless to say, if the regulations are incorporated into the GTLA, then any failure to comply with the regulations is a failure to exhaust the administrative remedies. Defendant specifically argues that we improperly analogized the Government Tort Liabilities Act (“GTLA”) with the Federal Tort Claims Act (“FTCA”) and misapplied FTCA case law. According to Defendant, the differences between local and federal statutes and regulations governing tort actions against government agencies are such that it would be improper to analogize the two statutory and regulatory schemes, much more, federal cases interpreting the FTCA. [1, 2] Under the GTLA, the court lacks subject matter jurisdiction unless the claimant first exhausts the administrative remedy established under A.S.C.A. § 43.1205(a).1 Section 43.1205(b)2 [**3**] authorizes the Attorney General to settle administrative claims according to A.S.A.C. §§ 43.0101-.0108.3 A.S.A.C.§ 43.0105 is the regulation at issue in this matter. It specifically describes what information the claimant must provide to the Attorney General in addition to the administrative claim letter before the American Samoa government can review the administrative claim. 1

A.S.C.A. § 43.1205(a) provides:

(a) An action may not be instituted upon a claim against the government for money damages for damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment unless the claimant has first presented the claim to the Attorney General and his claim has been finally denied by the Attorney General in writing, notice of the denial sent to claimant by certified or registered mail. The failure of the Attorney General to make a final disposition of a claim within 3 months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section. 2

A.S.C.A. § 43.1205(b) provides:

(b) The Attorney General shall, in accordance with regulations prescribed by the Governor, consider and determine, compromise or settle any claim for money damages against the government for damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of a government agency while acting within the scope of his office or employment, under circumstances where the government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 3

A.S.A.C. § 43.0101-.0108 are the regulations created pursuant to the GTLA.

[3] 28 U.S.C. § 2675 is the federal counterpart of A.S.C.A. § 43.1205(a). Section 2675 prescribes the process by which a [**4**] claimant may bring an action against the Federal Government under the FTCA. It requires that the claimant first present an administrative claim to the federal agency, whose tortious conduct allegedly caused plaintiff’s damages. 28 U.S.C. § 2672, the federal counterpart to A.S.C.A. § 43.1205(b), confers authority upon regulatory agencies to settle administrative claims. It specifically requires the reviewing agency to conduct its review in accordance with regulations prescribed by the Attorney General. 28 C.F.R. § 14.4, the federal counterpart to A.S.A.C. § 43.0105, is the regulation that prescribes what information in addition to the administrative claim that the reviewing agency may require from the claimant in order to conduct its investigation. [4] Federal courts have interpreted 28 U.S.C. §§ 2672 and 2675 as not incorporating 28 C.F.R. § 14.4 because of the concern that it could allow the federal agencies to indefinitely forestall valid claims against the Federal Government by requesting additional information from a claimant on grounds that the administrative claim is deficient. See Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir. 1999); Corte-Real v. United States, F.2d (1st Cir. 1991); GAF Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1987); Warren v. U.S. Dep’t [*5*] of Interior Bureau of Land Mgmt, 724 F.2d 776 (9th Cir. 1984); Charlton v. United States, 743 F.2d 557, 561 (7th Cir. 1984); Tucker v. U.S. Postal Service, 676 F.2d 954, 958-59 (3d Cir. 1982); Adams v. United States, 615 F.2d 284, 292 (5th Cir. 1980). Defendant argues that applying this interpretation to the local statutory and regulatory counterparts would be error because, according to Defendant, this problem does not present a threat under our statutory and regulatory scheme. Unlike their federal counterparts, A.S.C.A. § 43.1205 and A.S.A.C. §§ 43.0101-.0108. do not contain any language that would enable a local agency to preclude a claimant’s access to the court by extending the review period. Defendant specifically focuses on the fact that the review period under the GTLA and the American Samoa Administrative Code is strictly limited to three months; whereas, a federal agency may indefinitely exceed the FTCA six-month review period by continually requesting more information from the claimant. Defendant, therefore, asserts that we should not follow the federal court trend to interpret our local laws on this matter. Rather, Defendant is of the belief that A.S.C.A. § 43.1205(a) should be interpreted as incorporating A.S.A.C. § 43.0105. [**6**] Defendant’s argument is anything but convincing. Like their territorial counterparts, neither 28 U.S.C. §§ 2675 and 2672 nor 28 C.F.R. § 14.4 contain any language that extends the review period beyond what the statute prescribes. Yet, despite the absence of such language, the federal courts have noted the danger of incorporating 28 C.F.R. § 14.4 into 28 U.S.C. §§ 2672 and 2675—i.e., incorporation presents agencies with an opportunity to use the regulation to delay the administrative claim review process. We simply do not see how the same type of risk would not present itself if we found A.S.A.C. § 43.0105 to be incorporated into A.S.C.A. § 43.1205. Defendant relies on little else other than speculation, which is centered solely on the mandatory-versus-permissive distinction between A.S.A.C. § 43.0105 and 28 C.F.R. § 14.4. This argument is nonsensical since A.S.A.C. § 43.0105 contains vague and overbroad language. See A.S.A.C. §§ 43.0105(a)(8), (b)(6), and (c)(5).4 Much like the risk that the permissive language that 28 C.F.R. § 14.4 presents, the language under subsections 43.0105(a)(8), (b)(6), and (c)(5) of the American [**7**] Samoa Administrative Code provides the government wide discretionary latitude, which Defendant can use to its strategic advantage to interfere with a claimant’s access to the court. 5 Defendant’s assertion is made even less persuasive given the striking similarities between A.S.C.A. § 43.1205 and its federal statutory counterparts. It is apparent that the Legislature used the FTCA as a template when it formulated the GTLA. Equally obvious is the American Samoa Government’s utilization of 28 C.F.R. §§ 14.1-14.11. as the model for A.S.A.C. §§ 43.0101-0.108.

4

A.S.A.C. § 43.0105(a)(8), (b)(6), and (c)(5) contain the following language: “Any other evidence or information which may have a bearing on either the responsibility of the American Samoa Government for the [damages claimant has suffered].” (emphasis added). 5

Discussed, infra, at greater length.

[5] Furthermore, the Legislature enacted the GTLA for the same reason Congress passed the FTCA: to waive the government’s sovereign immunity so as to provide those who have suffered, as a consequence of the government’s tortious conduct, with a legal avenue of redress and to hold the government accountable for its actions. It is this overriding purpose, and the textual similarities that the GTLA and the FTCA share, that ultimately carry the greatest weight. As such, we find federal case law interpreting the FTCA to be an appropriate and instructive source of persuasive authority for interpreting A.S.C.A. [**8**] § 43.1205 and A.S.A.C. § 43.0105 and for determining whether the regulation is incorporated into the statute. Consequently, we see no reason why the federal courts’ findings that 28 U.S.C. §§ 2675 and 2672 do not incorporate 28 C.F.R. §§ 14.4. would not similarly apply to A.S.C.A. § 43.1205 and A.S.A.C. § 43.0105. The plain language of the GTLA is clear: A.S.C.A. § 43.1205(a), like its federal counterpart (28 U.S.C. § 2675), provides what is required before a claim against the government under the GTLA may be brought before the court. It requires the claimant to exhaust all administrative claims before the court may exercise proper jurisdiction over the claim. A.S.C.A. § 43.1205(b), like 28 U.S.C. § 2672, deals with the authority of agencies to settle claims, not with establishing court jurisdiction. It is apparent to us that Defendant improperly equated the regulatory administrative claim settlement requirements of A.S.C.A. § 43.1205(b) with the jurisdictional presentment requirements of A.S.C.A. § 43.1205(a) to invoke High Court jurisdiction. The regulatory requirements go far beyond the notice requirement of A.S.C.A. § 43.1205(a). [5] We have previously recognized that A.S.A.C. § 43.0105 does not augment the jurisdiction prerequisites of A.S.C.A. § [**9**] 43.1205. See Tuavale v. Am. Samoa Gov’t, AP No. 07-09, slip op. at 6 (App. Div. May 25, 2011); Mageo v. Am. Samoa Gov’t, CA No. 16-05, Order Denying Defendants’ Motion for Summary Judgment (Trial Div. July 20, 2010). Defendant has failed to present anything that would distinguish the present case from these prior rulings. We, therefore, remain unmoved. A.S.C.A. § 43.1205 does not incorporate A.S.A.C. §§ 43.0101-.0108. [6] Nonetheless, it is important to note that the High Court’s jurisdiction is still predicated on the presentment of a claim to the Attorney General. This is clearly stated in A.S.C.A. § 43.1205. Such a claim, however, is deemed presented so long as the administrative claim presented to the Attorney General reasonably notifies the Attorney General of the incident and includes a claim for money damages for a sum certain. Although we have never so concisely articulated our position, we have long ago adopted this interpretation of the law. See Moananu v. Am. Samoa Gov’t, CA No. 133-85, slip op. (Trial Div. Nov. 12, 1985); Utu v. Nat’l Pac. Inc. Co., 9 A.S.R.2d 88, 92 (Trial Div. 1988); Mataipule v. Tifaimoana Partnership, Ltd., 14 A.S.R.2d 100 (Trial Div. 1990). We see no reason why we should ignore well-established precedent. [**10**] Defendant raises another issue worth discussing. The issue is whether the Attorney General’s silence to an administrative claim over the entire three-month review period should be interpreted as a rejection of the administrative claim that exhausts all available administrative remedies, thereby, allowing the claimant to present the claim to the court. Not surprisingly, Defendant argues such silence from the Attorney General should not be construed as a rejection or even a failure to respond. Federal courts have allowed a claimant to treat a government agency’s silence and unresponsiveness throughout the statutory administrative review period as a final denial of his administrative claim. See, e.g., Pascale v. United States, 998 F.2d 186 (3d Cir. 1993); McCallister v. United States, 925 F.2d 841, 842 (5th Cir. 1991); Parker v. United States, 935 F.2d 176 (9th Cir. 1991). Needless to say, federal courts, in such instances, have found claimants to have exhausted all available administrative remedies and have exercised subject matter jurisdiction over these claims. [7] Defendant, however, argues that these rulings do not apply to our statutory and regulatory scheme because, unlike the federal regulation (28 C.F.R. § 14.4), A.S.A.C. § 43.0105 is mandatory in that it requires a claimant to provide specific [**11**] information with his administrative claim. That being the case, Defendant argues that the Attorney General should not have to request information that the law itself has directed the claimant to provide.

[7] We disagree. Defendant places too much importance on the distinction between the permissive language of 28 C.F.R. § 14.4 and the mandatory language of A.S.A.C. § 43.0105. This matter has been rendered moot by the fact that the regulation is not incorporated into the statute. [7] We also recognize the danger of expecting claimants to strictly adhere to the mandatory claims requirements of A.S.A.C. § 43.0105. Specifically, the language used in subparts (a)(8), (b)(6), and (c)(5) of that regulation is vague and broad. As such, the regulation can be used to prevent valid claims from reaching the court by imposing obstacles that are predicated on nothing more than technical procedural formalities that provide marginal assistance to investigating the administrative claim. We do not believe the Legislature envisioned the GTLA to operate in so harsh a manner. See Tuavale, AP No. 07-09 at 6; Crispin v. American Samoa Gov’t, 21 A.S.R.2d 60, 65-66 (Trial Div. 1992) (the GTLA’s administrative claim process should not be used to obstruct judicial determinations on technicalities). [**12**] We, therefore, reject Defendant’s line of speculative reasoning. Defendant cannot preclude a claimant’s access to the court by ignoring a claim and choosing not to notify the claimant that his claim is deficient. ORDER Defendant’s Motion to Dismiss is denied. It is so ordered.

Cite As: The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at ____ [page number] (Trial Div. April 10, 2012) (order denying application). THE ESTATE OF RUFO ALVEAR, JR., MYRNA A. BAUTISTA, GEORGE A. ALVEAR, EDUARDO A. ALVEAR, PATRICK HENRY A. ALVEAR, JOSEPH A. ALVEAR, JEANNETTE A. MATEO, MARCIA A. TAVITA, ANGELA A. AMATA, and DAVID I. ALVEAR, Plaintiffs, v. AMERICAN SAMOA GOVERNMENT, JOHN DOES I – X, jointly and severally, Defendants. ___________________________________ High Court of American Samoa Trial Division CA No. 09-12 April 10, 2012 [1] A “representative” in a survival action (or wrongful death action) is either an executor or an administrator. [2] A “successor in interest” can be a person who has not been formally appointed as a representative or administrator. The term “successor in interest” encompasses those individuals who have received a portion of the decedent’s estate after the estate has been distributed [3] An adult-decedent’s estate must undergo probate before anyone can become a “representative” or a “successor in interest” in a survival action. [4] The burden is upon an applicant applying for status as a “representative” (administrator/executor) or “successor in interest” of an estate to establish the applicant is an administrator or an executor or a “successor in interest” in a probated adult-decedent’s estate. [5] It is unsettled whether this older ruling is still applicable in the wake of the plausibility standard in pleadings: parents of a deceased minor child can maintain a survival action against another all the way to final judgment if the parents, a reasonable time after final judgment, probate their child’s estate. [6] In the estate of an adult-decedent, where the action was filed after the adult-decedent’s passing, only an administrator, executor, or a “successor in interest” has the right (locus standi) to bring a survival action on the decedent’s behalf. [7] Jus tertii is a legal classification concept, wherein a third party asserts the right of another in a lawsuit most often used (to ill-effect) in property actions and constitutional challenges. [8] Where an applicant applying for status as a “representative” or “successor in interest” of an adult-decedent’s estate provides nothing indicating the applicant is a legal administrator, executor, or “successor in interest” of the adult-decedent’s estate, the application will be denied.

Before: KRUSE, Chief Justice; LOGOAI, Chief Associate Judge. Counsel: For Plaintiffs, Mark F. Ude. ORDER DENYING APPLICATION

BACKGROUND Plaintiffs are composed of Rufo Alvear, Jr.’s estate, and his siblings, the latter of which reside throughout the globe from American Samoa to Dubai to the Philippines to the continental United States. We do not know if Rufo Alvear, Jr. (“Decedent”) was survived by direct issue or a spouse, as Plaintiffs’ Complaint omits such information. Nevertheless, Decedent’s sister, Angela A. Amata (“Amata,” a named plaintiff), filed an ex parte application (“Application”) with this Court to be named as “personal representative of the [Decedent] in accordance with American Samoa Code Annotated §[§] 43.5001 and [**2**] 43.502.” Application at 3. The statutes Amata cites therein concern survival actions/claims and wrongful death actions/claims, respectively; two different legal theories with particular application, each statute listing certain parties capable of instituting and collecting under the same. A.S.C.A. §§ 43.5001-43.5002. Decedent died on October 14, 2010, allegedly due in part to the American Samoa Government’s (and its unnamed agents’) negligence and intentional infliction of emotional distress. Plaintiffs collectively filed a Complaint on March 5, 2012, listing three separate claims: (1) Negligence, (2) Intentional Infliction of Emotional Distress, and (3) Wrongful Death. Before us at this time is the Application by Amata only. In ruling on the Application, we intimate nothing as to our jurisdiction over this action. DISCUSSION First, we deny Amata’s request to be named the personal representative of the decedent’s estate under A.S.C.A. § 43.5001(b) (“the deceased’s legal representatives may recover, on behalf of the estate, the reasonable expenses of the deceased’s last illness and burial”) for reasons articulated more fully infra concerning the legal status of a “representative” of an estate. [1-3] Secondly, local statutes outline the procedure for instituting survival claims/actions in pertinent part as follows: [**3**] “An action or cause of action...shall not abate by death...but shall in all cases, where a cause of action...arose in favor of such party prior to his death...survive and be maintained by his representatives or successors in interest; and in case such action has not been begun...the action may be begun...in the name of his representatives or successors in interest.” A.S.C.A. § 43.5002. A representative in a survival action (or wrongful death action) is either an executor or an administrator. See BLACK’S LAW DICTIONARY 1328 (8th ed. 2004). A “successor in interest” can be a person who has not been formally appointed as a representative or administrator. 6 Moore’s Federal Practice, § 25.12[3] (3d ed. 2004). The term “successor in interest” encompasses those individuals who have received a portion of the decedent’s estate after the estate has been distributed. Id. See, e.g., Hardy v. Kaszycki & Sons Contractors, Inc., 842 F.Supp. 713, 716-17 (S.D.N.Y. 1993); McShurely v. McCellan, 753 F.2d 88, 96, 98-9 (D.C. Cir. 1985); Rende v. Kay, 415 F.2d 983, 985 (D.C. Cir. 1969). Cf. Ashley v. Illinois Cent. Gulf R.R., 98 F.R.D. 722, 724 (S.D. Miss. 1983) (widow did not qualify as proper party because she was not a representative of decedent party’s estate, which had not yet been distributed). Accordingly, an estate must undergo probate before anyone can become a “representative” or a “successor in interest” in a survival action. A.S.C.A. § 43.5002. [4] The burden is upon Amata to prove she is a “representative” (administrator/executor) or “successor in interest” of Decedent’s estate. Nothing attached indicates as much. [**4**] [5-7] In Fa’avae v. American Samoa Power Authority, the parents of a minor youth brought an action against the American Samoa Power Authority (ASPA) for wrongful death on behalf of themselves and negligence on behalf of their son’s estate. 5 A.S.R.2d 53 (Trial Div. 1987). The court awarded damages for both, noting that the parents, as representatives of the estate could bring and collect, on behalf of their son, a survival action, There is an allegation in the complaint that the parents are the representatives of his estate; that allegation is to be construed liberally,1 so we will award this item of damages to the parents in 1

The Supreme Court articulated a “plausibility standard” in Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949-50 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). We adopted this standard in Vergara v. Am.

their capacity as representatives of the estate. This means that all probate rules have got to be complied with. Id. at 58. However, we limit Fa’avae’s current application (if any of it is still relevant) to the facts before it: parents of a minor child can maintain a survival action against another all the way to final judgment if the parents, a reasonable time after final judgment, probate their child’s estate. However, here, we rule on the facts before us: that in the estate of an adult-decedent, where the action was filed after the adult-decedent’s passing, only an administrator, executor, or a “successor in [**5**] interest” has the right (locus standi) to bring a survival action on the decedent’s behalf.2 [8] Here, Amata provided nothing indicating she is a legal administrator, executor, or “successor in interest” of Rufo Alvear, Jr.’s estate. Consequently, Amata’s Application to be named a “representative” is, at this time, denied. It is so ordered.

Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). The plausibility standard may render this holding in Fa’avae obsolete, as the plaintiffs in that case appear to have made naked assertions about their standing as “representatives.” We do not decide here whether Fa’avae’s holding remains intact, nor whether that persuasive authority has any application here, as the facts of this present action are dissimilar. 2 Jus tertii is a legal classification concept, wherein a third party asserts the right of another in a lawsuit. MERRIAMWEBSTER’S DICTIONARY OF LAW (1996). Jus tertii is most often used (to ill-effect) in property actions and constitutional challenges, but we can see its potential application in the action before us. But we note this Supreme Court admonition on allowing actions premised on jus tertii, [C]ourts must hesitate before resolving a controversy...on the basis of the rights of third persons not parties to the litigation. The reasons are two. First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert them or will not be able to enjoy them regardless of whether the in-court litigant is successful or not. Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (citations omitted). We rightly hesitate allowing this survival action to proceed. The probate process will better discern the Decedent’s estate’s division of property; more importantly, probate will determine the person bound by law to administer the decedent’s estate, and those, either by will or by intestacy, recognized as “successor[s] in interest.” A.S.C.A. § 43.5002.

Cite As: Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at ____ [page number] (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). PACIFIC GRADING CORP., and VAILU’U & SONS TRUCKING, Plaintiffs, v. CONSTRUCTION SERVICES OF SAMOA, INC.; MORU MANE; SALLIE MANE; and AMERICAN SAMOA GOVERNMENT, Defendants. ___________________________________ GMP & Associates, Intervenor. ___________________________________ CONSTRUCTION SERVICES OF SAMOA, INC., Crossclaimant, v. AMERICAN SAMOA GOVERNMENT, Cross-defendant. ___________________________________ AMERICAN SAMOA GOVERNMENT, Crossclaimant, v. CONSTRUCTION SERVICES OF SAMOA, INC., Cross-defendant ___________________________________ High Court of American Samoa Trial Division CA No. 43-02 May 3, 2012

[1] Summary judgment is proper where the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. [2] When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." [3] "Only disputes over facts that might affect the outcome of the suit under the governing law" are "material," and such a dispute is "genuine" only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. [4] A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, nonspecific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. [5] The current Federal Rules of Civil Procedure are controlling (when practicable) in this Territory. A.S.C.A. § 43.0201(a).

[6] To make a prima facie showing for summary judgment, the party moving for summary judgment can use admissions in the record; affidavits are not always necessary. [7] T.C.R.C.P. 8(a) espouses a seemingly lax pleading standard, "A pleading...shall contain (1) a short and plain statement of the claim showing the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." [8] If a party seeking relief under a claim, counterclaim, or cross-claim fails to state a claim upon which relief can be granted pursuant to T.C.R.C.P. 8(a), the defending party may move the court to dismiss the claim under T.C.R.C.P. 12(b)(6). [9] The supposed “no set of facts” pleading standard articulated in Conley v. Gibson, 355 U.S. 41, 45-6 (1957), “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” is a misunderstood passage that cannot be interpreted literally. [10] The plausibility standard mandates a plaintiff allege enough plausible facts to sustain a claim to satisfy T.C.R.C.P. 8(a) and survive a T.C.R.C.P. 12(b)(6) challenge. [11] Pleadings subject to the plausibility standard, and challenged under T.C.R.C.P. 12(b)(6), are evaluated under a two-part test. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts ("naked assertions"). Secondly, "only a complaint that states a plausible claim for relief survives a motion to dismiss [for failure to state a claim]." The second prong is "context specific" and the court draws from its own "experience and common sense" when making this determination. Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only "the possibility of misconduct," and nothing more, the complaint fails because it alleges but does not show its pleader is entitled to relief. [12] Seemingly-cursory facts in a civil, pro se complaint are afforded more liberal construction than pleadings drafted by an attorney. [13] In a T.C.R.C.P. 12(b)(6) challenge, the court's mandate to liberally construe pleadings to do substantial justice, T.C.R.C.P. 8(f), does not mandate the court take everything alleged in a pleading's claim for relief as true. For instance, a pleading's "naked assertions" are given no weight at all. [14] Well pleaded facts are considered true, but well-pleaded facts are still subject to the court's scrutiny: if, when drawing upon the court's "experience and common sense," the well-pleaded facts do not state a claim upon which relief can be granted, the claim is subject to dismissal. [15] A statement of a cause of action for breach of contract requires the pleading of (1) a contract, (2) plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff therefrom. [16] A T.C.R.C.P. 12(b)(6) defense is predicated upon the face of a claim for relief. [17] Where a party seeking relief alleges well-pleaded facts that would satisfy the elements of a contract breach, then a T.C.R.C.P. 12(b)(6) defense preserved in a defending party’s answer cannot inure at trial and is subject to adjudication and disposal via summary judgment. [18] When the court authorizes a pleading be amended pursuant to T.C.R.C.P. 15(a), the amended pleading relates back to the date the original pleading was first filed, as if the amended pleading were filed the day the original pleading was. [19] A breach of contract action, premised on a written contract must be brought within 10 years from the date of the breach unless "otherwise especially declared." A.S.C.A. § 43.0120(5).

[20] A party defending against a claim may raise a statute of limitations defense to dismiss the claim for the partyseeking-relief's failure to file the claim within the statutory period. [21] An admission in pleadings is considered a fact for summary judgment proceedings. [22] An amended pleading relates back to the date the un-amended, original pleading was filed. If the original pleading was filed before the statute of limitations period ran, then the claims contained in the amended pleading are not barred by any statute of limitation either. [23] A statute of limitations defense that could not inure at trial is subject to adjudication and disposal via summary judgment. [24] Laches is an equitable principle, which will bar a claim for relief subject to (1) the laches' elements being met, and (2) a court’s discretion. [25] Laches is composed of two elements: (1) a party-seeking-relief's unreasonable delay in asserting his rights; and (2) an undue prejudice stemming from such delay affecting the other party. [26] A contract-breach claim that is not violative of this Territory’s statute of limitations is also not subject to dismissal via laches. [27] Where a party moving for summary judgment rightly indicates that the record and law cannot substantiate a non-moving party’s laches defense, and the non-moving party was notified of the summary judgment motion and provides deficient or unsupported averments in support of his laches defense, then that laches defense is properly subject to disposal via summary judgment. [28] The plausibility standard which applies to claims also applies to defenses. Parties may move to strike defenses which offend the particularity standard. [29] To survive a motion to strike a defense premised on the plausibility standard, well pleaded facts must accompany a defense. A defense listed with no factual allegations of any kind cannot withstand the particularity standard as such a listing is a “naked assertion.” [30] A nakedly-asserted defense can be struck from a responsive pleading; a party so affected can move to amend the responsive pleading to include well pleaded facts justifying the defense.

Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and FA`AMAUSILI, Associate Judge. Counsel:

For Defendant/Crossclaimant/Cross-defendant Construction Services of Samoa, Inc., Charles V. [**2**] Ala`ilima For Defendant/Cross-defendant/Crossclaimant American Samoa Government, Daniel Woods, Assistant Attorney General

ORDER GRANTING AMERICAN SAMOA GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT BACKGROUND On or about January 8, 2001, the American Samoa Government ("ASG") awarded a construction contract to Construction Services of Samoa ("CSS"). CSS was to act as a general contractor for the Masausi Road and Drainage Reconstruction Project. CSS allegedly hired subcontractors for this project, including but not necessarily limited to: Pacific Grading Corp. ("PGC"), Vailu`u & Sons Trucking ("VST"), and GMP and Associates ("GMP"). PGC allegedly constructed and/or placed four-hundred and thirty linear feet of concrete drainage and two catch basins, for which PGC alleges $10,941 is still due and owing. VST billed CSS for trucking services allegedly

rendered, the total still owing on the same being $10,530. CSS allegedly hired GMP for design services totaling $38,000, for which $22,830.43 is allegedly still owing. ASG avers that CSS began performing under the contract in 2001, but failed to supply serviceable workers, pay its subcontractors, and timely complete the Masausi Project. ASG, at some point between January 2001 and February 2002, revised and extended the completion date of the contract to February 12, [**3**] 2002.1 CSS did not complete the project by that date. By April 8, 2002, ASG decided to terminate its contract with CSS and secured a "cover-contractor," GMP, to finish the Masausi Project. ASG avers it has suffered some "$66,000 more than ASG would have spent had CSS simply fulfilled its obligations under the Construction Contract." ASG's Amended Answer to Cross-claim at 2, Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02 (Trial Div. Nov. 7, 2011). We intimate nothing as to these averments; the former paragraphs are a skeletal framework of the plot underpinning this entire dispute, something we have pieced together while evaluating all of the parties' allegations. We now document the procedural maelstrom of this ongoing dispute. In May of 2002, Counsel Paul F. Miller of the Law Offices of Marshall Ashley represented PGC and VST. On May 10, 2012, PGC and VST filed a complaint, listing PGC and VST as Plaintiffs and CSS and ASG as Defendants. PGC and VST alleged that the services rendered by each of its companies to CSS and ASG were to the tune of $21,471 and that each company should collect under a theory of "implied contract...open account and/or unjust enrichment." Pl.'s Complaint at 3, Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02 (Trial Div. May 10, 2002). [**4**] Marie Ala`ilima Lafaele (also known as "Marie Alailima") originally represented CSS. On June 3, 2002, CSS filed an "Answer, Counter-claim, and Cross-claim." In that pleading, CSS answers PGC and VST's Complaint, and then raises a counterclaim against VST. CSS's counterclaim alleges that VST agreed to use CSS's equipment for a charged fee; the usage-fee CSS alleges VST owes amounts to $4,510.2 CSS's cross-claim against ASG maintains, The cross-defendant [ASG] is withholding funds earned by CSS in excess of the claims complained of by plaintiffs. Said funds have already been set aside to pay CSS's subcontractors on the Masausi road project pursuant to agreement and representations made to CSS. The exact amount of this set aside, cross-plaintiffs will establish at trial.... The Cross-defendant is therefore solely liable to pay plaintiffs from this set aside to the extent that plaintiffs claims are proven.... Cross-defendant is liable to defendant, CSS for return of remaining balance of [sic] set aside they have withheld after all claims of subcontractors have been paid. CSS's "Answer, Counter-claim, and Cross-claim" at 4, Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 4302 (Trial Div. June 3, 2002). On August 1, 2002, Counsel Marcellus T. Uiagalelei, then an Assistant Attorney General, filed ASG's Answer to PGC and VST's Complaint. On August 8, 2002, ASG denied CSS's allegations quoted supra in its Answer to CSS's Cross-claim, while raising a list of affirmative defenses. [**5**] On August 8, 2002, during the initial stages of discovery, the law offices of Rose & Joneson, P.C., substituted Marie Alailima as the attorney of record for CSS. After some discovery papers passed hands, on July 30, 2003, Marie Alailima substituted herself back in as the attorney of record for CSS, replacing Rose & Joneson, P.C. Less than a month later, on August 19, 2003, this Court approved the Law Offices of Marshall Ashley's withdrawal, by stipulation, as the attorney of record for PGC.3 By early 2004, not to be outdone, Assistant Attorney General Valerie McGuire replaced Counsel Uiagalelei as the lead attorney for ASG in this action. 4

1

We do not know the original terms of the construction contract between ASG and CSS because, through ten years of litigation, no party has volunteered a copy of the original construction contract. 2 VST, at that time, denied owing the same and preserved defenses of its own in its Answer to Counterclaim, filed June 7, 2002. 3 The Law Offices of Marshall Ashley never formally withdrew from representing VST. We note, however, that VST has filed nothing further in this action since at least 2003. 4 Counsel McGuire did not file a formal replacement of lead counsel notice with this Court.

On March 18, 2004, GMP, represented by Counsel S. Salanoa Aumoeualogo, filed its "Intervenor's Complaint," alleging an amount GMP felt CSS still owed GMP ($22,830.43) while GMP was a subcontractor for CSS on the Masausi Project. On April 20, 2004, this Court granted GMP's motion to intervene. On May 4, 2005, CSS filed its "Answer to Intervenor's Complaint, Counter-claim and Cross-claim."5 In that pleading, CSS avers that GMP overestimated the amount due and owing from CSS (averring that [**6**] the true amount owing to be $19,830.43 not $22,830.43).6 Moreover, CSS alleges that GMP rented office space from CSS, office space GMP used while working on the Masausi Project, and, further, that GMP delayed the Masausi Project by failing to render its design work timely. In its counterclaim against GMP, CSS avers that GMP owes CSS $4,350.44 in rental arrearage and $9,520 for the losses CSS suffered due to delay in design rendering. Regardless, by January of 2007, Counsel Robert K. Maez represented PGC. 7 On January 25, 2007, PGC moved this Court to set a trial date for this action. On March 16, 2007, at the hearing regarding PGC's Motion to Set Trial, this Court ordered trial to commence on September 27, 2007. On September 27, 2007, GMP; ASG, now represented by Counsel Frederick J. O'Brien;8 and CSS stipulated to continue the trial because Counsel Maez died between March and September of 2007. This Court rescheduled the trial for November of 2007. However, by December 17, 2007, the intervenor (GMP), and both Defendants, (ASG) and (CSS), through each of its respective counsel, filed a [**7**] "Joint Stipulation to Remove Matter From Trial Docket."9 On December 17, 2007, this Court found "that the Plaintiffs are currently not represented by counsel, and that good cause exists [for] removing this matter from the court's trial docket [and that Plaintiffs PGC and VST] are hereby ordered to either...[o]btain new counsel who shall file a Notice of Appearance within sixty (60) days, [or f]ile a Notice of Intent to Proceed Pro Se within sixty (60) days...." We accordingly removed the action from the trial docket. In the years since this December 2007 Order, neither PGC nor VST filed a notice of appearance nor a notice of intent to proceed pro se.10 Indeed, no party filed anything further in this matter until October 20, 2011, when CSS, now represented by Counsel Charles V. Ala`ilima11 filed a "Request to ASG for Production of Documents and Things." On November 7, 2011, ASG, now represented by Counsel Daniel Woods,12 responded by filing its "Combined Motion for Leave to File an Amended Answer to CSS's Crossclaim and [**8**] Memorandum in Support." ASG wanted to bring a contract breach cross-claim against CSS for the Masausi Project contract. In the interests of justice, and seeing as how the whole underlying complaint which gave rise to this action concerned the very same construction contract, we granted ASG leave to amend its original Answer (to CSS's Crossclaim, which ASG originally filed on August 8, 2002) to include a breach of contract cross-claim against CSS. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 2-3 (Trial Div. Dec. 29, 2011) (order granting ASG's motion for leave to amend answer to cross-claim). See T.C.R.C.P. 15(a).

5

CSS's cross-claim against ASG filed here is more detailed than its original cross-claim (filed June 3, 2002); however, CSS appears to have amended its original cross-claim without moving this Court for leave to do the same. Cf. T.C.R.C.P. 15(a). 6 CSS avers that the design work GMP performed was for $36,500 not $38,000. Furthermore, CSS avers that it had paid GMP an additional $1,500 GMP failed to include in its calculations. 7 Maez did not file a formal substitution of counsel notice. In our review of Maez's briefs, it does not appear that Maez represented VST, only PGC, as he made no submissions on VST's behalf. 8 Again, ASG did not file a replacement of lead counsel notice. 9 The Stipulation incorrectly lists Marie Alailima as "Counsel for Defendant[,] Pacific Grading Corporation." By this time ASG was represented by Counsel Jennifer L. Augspurger; Counsel Augspurger, as all of her predecessors before her, did not file a formal replacement of lead counsel notice. 10 Neither defendant, CSS nor ASG, has taken the initiative to invoke T.C.R.C.P. 41(b) to possibly dismiss PGC and VST's claims/Complaint. 11 Brother of Marie Alailima. He did not file a formal substitution of counsel notice. 12 Counsel Woods did not file a replacement of lead counsel notice.

On January 10, 2012, CSS filed an answer to ASG's Amended Answer/Cross-Claim, styled incorrectly as "Answer to Amended Counter-claim." On January 12, 2012, ASG filed its "Motion for Summary Judgment on CSS's Three Affirmative Defenses" (hereinafter "Motion for Summary Judgment"). The matter came on for hearing on March 15, 2012, ASG and CSS appearing through counsel. In its Motion for Summary Judgment, ASG argues that CSS's T.C.R.C.P. 12(b)(6), laches, and statute of limitations defenses cannot inure at trial and should be adjudicated now via summary judgment. We agree with ASG and issue summary judgment disposing of these three particular defenses. SUMMARY JUDGEMENT STANDARD OF REVIEW [1-4] Summary judgment is proper where the record shows there is [**9**] no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56(c). When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." T.C.R.C.P. 56(e). "Only disputes over facts that might affect the outcome of the suit under the governing law" are "material," and such a dispute is "genuine" only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, non-specific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990). [5-6] A.S.C.A. § 43.0201(a) mandates that the High Court "shall conform [the civil practice], as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure, Title 28, U.S.C." Indeed, this Court often looks to the Federal Rules of Civil Procedure for guidance and statutorily must conform itself to those Federal Rules as closely as is practicable. Crispin v. Am. Samoa Gov't, 21 A.S.R.2d 60, 66-7 (Trial Div. 1992). In 1981, this Court adopted most of the Federal Rules of Civil Procedure when it published its Trial [**10**] Court Rules of Civil Procedure ("T.C.R.C.P."). The Federal Rules have stylistically changed in the time since the T.C.R.C.P.'s genesis (though the numbering of the rules, and the topics each number discusses, has not). Given the statutory mandate of A.S.C.A. § 43.0201(a), the current Federal Rules of Civil Procedure are controlling (when practicable) in this Court. After review of the 2012 version of Rule 56 of the Federal Rules, we are satisfied that this current iteration of Federal Rule 56 to be "practicable" and, therefore, controlling and applicable. The distinctions between the federal version of Rule 56 and T.C.R.C.P. 56 are merely stylistic, not substantive. For instance, T.C.R.C.P. 56 does not explicitly state that a party moving for summary judgment can simply point to factual admissions or stipulations in the record as grounds for a prima facie showing of summary judgment. However, the Federal Rules say just that. FED. R. OF CIV. P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by...citing to particular parts of materials in the record, including...admissions). CSS is incorrect in stating that a party moving for summary judgment must provide an affidavit to make a prima facie showing for summary judgment.13 [**11**] An affidavit is not always necessary, admissions are sometimes sufficient. FED. R. OF CIV. P. 56(c)(1). Cf. T.C.R.C.P. 56(c) ("The judgment sought shall be rendered forthwith if the...admissions on file...show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."). Here, ASG relies solely on sufficient admissions and points of law; 14 accordingly, we rule ASG has made a prima facie showing of summary judgment from the admissions ASG culled from the record and marshaled in this present

13

"ASG presents no affidavits or other supporting evidence in connection with its memorandum and motion." Def.'s Opp. to ASG's Combined Summ. J. Mot., Pac. Grading Corp. v. Constr. Servs. of Samoa, at 1 (Trial Div. Feb. 3, 2012). But cf. T.C.R.C.P. 56(a) ("A party seeking to recover upon a claim, counterclaim or to obtain a declaratory judgment may...move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.")(emphasis added). 14 Indeed, CSS never denied the averments ASG cites in support of ASG's Motion for Summary Judgment. We therefore consider those averments CSS did not deny as admissions of fact. Cf. T.C.R.C.P. 8(d).

motion. It bears noting that CSS did not file affidavits or other evidence contesting those admissions. Cf. T.C.R.C.P. 56 (c). DISCUSSION We address the defenses in order: T.C.R.C.P. 12(b)(6); statute of limitations; and laches. We note, with the latter two defenses, the application of T.C.R.C.P. 15(c)'s relation-back principle, finding that summary judgment is appropriate for the three CSS affirmative defenses ASG targets in this present motion. We lastly address ASG's convincing alternative argument, moving that we strike all three of the aforementioned defenses for failing the particularity standard. [**12**] I.

T.C.R.C.P. 12(b)(6) Defense: Failure to State a Claim Upon Which Relief can be Granted

[7-8] T.C.R.C.P. 8(a) and T.C.R.C.P. 12(b)(6) are inextricably linked. T.C.R.C.P. 8(a) espouses a seemingly lax pleading standard, "A pleading...shall contain (1) a short and plain statement of the claim showing the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." T.C.R.C.P. 12(b)(6) is a defense utilized in civil proceedings. If a party seeking relief under a claim, counterclaim, or crossclaim fails to state a claim upon which relief can be granted pursuant to T.C.R.C.P. 8(a), the defending party may move the court to dismiss the claim so affected under T.C.R.C.P. 12(b)(6). [9-10] In the 1957 U.S. Supreme Court case of Conley v. Gibson, the Court articulated Rule 8(a)'s relaxed noticepleading standard along with an analysis as to how a pleading could survive a Rule 12(b)(6) challenge, "we follow...the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6 (1957) (emphasis added). This quoted passage has befuddled legal scholars, as a literal interpretation of that passage would allow for parties seeking relief to allege no facts at all in their pleadings and yet survive a 12(b)(6) challenge. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561 (2007) ("On such a focused and literal reading [**13**] of Conley's "no set of facts," a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some `set of [undisclosed] facts' to support recovery."). The Supreme Court revisited this peculiar passage from Conley in the case of Bell Atlantic Corporation v. Twombly, To be fair to the Conley Court, the [quoted] passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. 562-63. The Supreme Court in Twombly articulated a standard of plausibility; to survive a T.C.R.C.P. 12(b)(6) challenge, a plaintiff must allege enough plausible facts to sustain a claim. See id. at 557; T.C.R.C.P. 8(a). [11-12] This plausibility standard was further illuminated in 2009 in the case of Ashcroft v. Iqbal, where the Supreme Court articulated a two-part test that courts should use when evaluating pleadings under this particularity standard. 556 U.S. __, 129 S. Ct. 1937, 1949-50 (2009) (citations omitted). First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts ("naked assertions"). Id. (citations omitted). [**14**] Accordingly, if the facts are "naked assertions," the court need not consider those facts as true (thereby making the complaint, or claim, subject to dismissal under Federal Rule of Civil Procedure/T.C.R.C.P. 12(b)(6)). See id. Secondly, "only a complaint that states a plausible claim for relief survives a motion to dismiss [for failure to state a claim]." Id. at 1950 (citations omitted). The second prong is "context specific" and the court draws from its own "experience and common sense" when making this determination. Id. (citations omitted). Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only "the possibility of misconduct," and nothing more, the complaint fails because it alleges but does not show its pleader is entitled to relief. Id. The complaint, or claim, will then be subject to

dismissal under a T.C.R.C.P. 12(b)(6) challenge. See id.15 But cf. Ericksson v. Pardus, 551 U.S. 89, 91 (2007) (holding, even in light of Twombly, that seemingly-cursory facts in a civil, pro se complaint are afforded more liberal construction than pleadings drafted by an attorney). [**15**] [13-14] In a T.C.R.C.P. 12(b)(6) challenge, the court's mandate to liberally construe pleadings to do substantial justice, T.C.R.C.P. 8(f), does not mandate the court take everything alleged in a pleading's claim for relief as true. Indeed, under Iqbal and Twombly's interpretation of Rules 8(a) and 12(b)(6), a pleading's "naked assertions" are given no weight at all, only well-pleaded facts. And well-pleaded facts are still subject to the court's scrutiny: if, when drawing upon the court's "experience and common sense," the well-pleaded facts do not state a claim upon which relief can be granted, the claim is subject to dismissal. Iqbal, 129 S. Ct. at 1950. [15] "A statement of a cause of action for breach of contract requires [the] pleading of (1) [a] contract, (2) plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff therefrom." Acoustics, Inc. v. Trempte Constr. Co., 14 Cal. App. 3d 877, 913 (Cal. Ct. App. 1971) (citing WITKIN, CAL. PROCEDURE, Pleading § 251 (1954)).16 Looking at ASG's Cross-claim, we are now asked to determine if summary judgment is appropriate on CSS's 12(b)(6) defense—whether CSS at this time could maintain a T.C.R.C.P. 12(b)(6) defense. We conclude that CSS could not. [16-17] A T.C.R.C.P. 12(b)(6) defense is predicated upon the face of [**16**] a claim for relief (ASG's Amended Answer/Cross-claim). Here, ASG's Amended Answer/Cross-claim, on its face, satisfies its burden under T.C.R.C.P. 8(a), by alleging well-pleaded facts that would satisfy the elements of a contract breach. ASG avers in its Crossclaim that on January 8, 2001, ASG and CSS entered into a written contract concerning the Masausi Road and Drainage Reconstruction Project, where CSS was to serve as general contractor (contract); that ASG made payments to CSS pursuant to the contract (performance); that CSS began to perform, but subsequently failed to pay its subcontractors and to timely complete the project; that CSS breached the agreement by failing to complete the project by the completion date (breach); and that in an effort to mitigate its damages, ASG suffered $66,000 when hiring another firm to complete the project (damages). ASG's Amended Answer to CSS's Cross-claim at 2-3, Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02 (Trial Div. Nov. 7, 2011). ASG did not file a pleading merely stating that there was a breach of contract (a "naked assertion"), but instead provided enough well-pleaded facts which, if true, would grant ASG relief.17 At trial, ASG must prove those very facts to merit [**17**] relief. CSS's T.C.R.C.P. 12(b)(6) defense cannot, by law, inure—ASG's pleadings are sufficient to survive such a challenge now as at trial. Accordingly, we grant ASG's motion for summary judgment on this particular CSS defense—CSS's T.C.R.C.P. 12(b)(6) defense shall not be availed at trial.

15

We adopted the Twombly-Iqbal plausibility standard in the case of Vergara v. American Samoa Government, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.'s mot. to dismiss). This plausibility standard has always existed, even at the time of Conley—Conley's seemingly contrary holding (allowing "naked assertions" to survive a Rule 12(b)(6) challenge) seemed contrary because of a misunderstanding by legal commentators and scholars. See Twombly, 550 U.S. at 562-63. A misunderstanding the Supreme Court subsequently called out and resolved. Id. The standard articulated in Twombly and Iqbal derives its validity from Rule 8(a) of the Federal Rules of Civil Procedure. 16 We find this statement of elements in line with the common law elements of a breach of contract claim and apply it in the case at bar. See RESTATEMENT (SECOND) OF CONTRACTS § 236 cmt. a (1979). Cf. A.S.C.A. § 1.0201(4). 17 We do not have an opinion as to whether ASG's averment that a contract between ASG and CSS formed is sufficient enough to withstand a T.C.R.C.P. 12(b)(6) challenge—whether enough well-pleaded facts were alleged to assert all the elements of a contract–because CSS admitted a contract so existed. See T.C.R.C.P. 8(d) (CSS did not deny the existence of the Masausi contract between itself and ASG in its "Answer to Amended Counterclaim [sic]", filed January 10, 2012; that averment is therefore considered an admission).

II.

Defenses Concerning Time: Relation Back

T.C.R.C.P. 15(c) states that "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to [the] date of the original pleading." [18] Under T.C.R.C.P. 15(a), we allowed ASG to amend its Answer to include a cross-claim against CSS. Pac. Grading Corp. v. Constr. Servs. of Samoa, Inc., CA No. 43-02 slip op at 2-3, (Trial Div. Dec. 29, 2011) (order granting ASG's mot. for leave to amend answer to cross-claim). We ruled that justice so required the amendment— indeed, CSS's own cross-claim against the government concerns the same transaction and occurrence (the underlying construction contract between ASG and CSS concerning the Masausi Project). Consequently, ASG's Amended Answer/Cross-claim relates back to the date ASG first filed its Answer against CSS's cross-claim, August 9, 2002. A. Statute of Limitations [**18**] [19-20] A.S.C.A. § 43.0120(5) provides that "[a]ctions may be brought...after their causes accrue" and that "actions founded on written contracts, or a judgment of a court record, [must be brought] within 10 years" unless it is "otherwise especially declared." Therefore a breach of contract action, premised on a written contract must be brought within 10 years from the date of the breach unless "otherwise especially declared." A.S.C.A. § 43.0120(5). A party defending against a claim may raise a statute of limitations defense to dismiss the claim for the partyseeking-relief's failure to file the claim within the statutory period. See A.S.C.A. § 43.0120. [21-22] Here, CSS's statute of limitations defense is deficient, as ASG's Amended Answer/Cross-claim is timely brought. We construe CSS's following admission as fact: that ASG and CSS entered into a construction contract for the Masausi Project on January 8, 2001. See T.C.R.C.P. 8(d); CSS's "Answer to Amended Counter-claim [sic]" at 1, Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02 (Trial Div. Jan. 10, 2012). By admitting as much, CSS acknowledges that if any contract-breach occurred, it would have occurred sometime in 2001 or 2002. 18 ASG's Amended [**19**] Answer/Cross-claim relates back to the date it was originally filed, August 9, 2002. T.C.R.C.P. 15(c). Less than two years had passed from the date the construction contract came into being to the date ASG filed its Answer (from which ASG's Amended Answer/Cross-claim relates back). Within that less-than-two-year timeframe, ASG alleges a breach occurred. The related-back-to filing lies well within the 10-year statute of limitations period for contract disputes premised on a breach of written contract. A.S.C.A. § 43.020(5). [23] Based on the preceding analysis, CSS's statute of limitations defense could not inure at trial. Accordingly, we grant ASG's motion for summary judgment as concerns CSS's statute of limitations defense. B. Laches [24-25] Laches is an equitable principle, which will bar a claim for relief subject to (1) the laches' elements being met, and (2) this Court's discretion. See, Jennings v. Thompson, 25 A.S.R.2d 77, 82 (App. Div. 1994). Laches is composed of two elements: (1) a party-seeking-relief's unreasonable delay in asserting his rights; and (2) an undue prejudice stemming from such delay affecting the other party. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3, 11 (App. Div. 2003); Jennings, 25 A.S.R.2d at 82; Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (Trial Div. 1988) (citing Gardner v. Panama R.R. Co., 342 U.S. 29, 31 (1951)).

18

CSS denies that there was a breach, but ASG alleges there was one. We intimate nothing as to whether there was a breach (as that issue has not been raised in the present summary judgment motion), only that if there was a breach, it could only conceivably have occurred in 2001 or 2002, while the construction contract was in effect. See ASG's Amended Answer to CSS's Crossclaim at 2-3, Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02 (Trial Div. Nov. 7, 2011).

[26] Here, as a matter of law, laches could not bar ASG's [**20**] Amended Answer/Cross-claim for contract breach.19 ASG's Cross-claim is not violative of this Territory's statute of limitations, A.S.C.A. § 43.0120(5). See supra. Therefore, CSS's request that we find a timely filing unreasonable is inherently flawed. [2, 4] Moreover, CSS's argument that it will be unduly prejudiced is unsupported by any admissible affidavits or the record. A summary judgment opposition must present admissible sets of facts which would indicate a genuine issue of material fact warranting trial (where a fact-finding would yield the actual facts used to render a judgment). [27] Here, CSS's averments are deficient and unsupported. Proper notice of a summary judgment proceeding being had, we rule that CSS's laches argument is lacking, that there is no genuine issue of material fact, and summary judgment is appropriate as applied to this particular defense—consequently, CSS's laches defense cannot be brought at trial. III.

ASG's Alternative Argument: Motion to Strike

In the wake of Iqbal and Twombly, federal district courts [**21**] have had to sort out a different issue: whether the "plausibility standard" stemming from the Supreme Court's interpretation of Federal Rule of Civil Procedure 8(a)'s mandate for a "short and plain statement" of claims, is similarly applicable to defendants when pleading defenses pursuant to Federal Rule of Civil Procedure Rule 8(b)(1)(A)'s mandate that a party shall "state in short and plain terms its defenses to each claim asserted against it." FED. R. CIV. P. 8(b)(1)(A) (emphasis added). Cf. T.C.R.C.P. 8(b) (“A party shall state in short and plain terms his defense to each claim asserted..."). See, e.g., Barnes v. AT&T Pension Benefit Plan, 718 F.Supp.2d 1167 (N.D. Cal. 2010). Neither the Supreme Court, nor any Circuit Court, has addressed the plausibility standard's application when pleading affirmative defenses. Barnes, 718 F.Supp.2d 117172. [28-30] Here, ASG moves us alternatively to strike CSS's T.C.R.C.P. 12(b)(6), statutes of limitations, and laches defenses under this novel interpretation of the plausibility standard (as it relates to pleading defenses).20 See T.C.R.C.P. 12(f). We find this nascent strain of the plausibility standard persuasive and find all three of CSS's aforementioned defenses should be struck. CSS merely listed its defenses, with no factual allegations of any kind accompanying any listed defense. Cf. CSS's "Answer to Amended Counter-claim [sic]" at 1-2, Pac. Grading Corp. v. [**22**] Constr. Servs. of Samoa, CA No. 43-02 (Trial Div. Jan. 10, 2012). Under Iqbal and Twombly's particularity standard, CSS's conclusory list would amount to "naked assertions" for which we would give no weight. Iqbal, 129 S. Ct. at 1949-50 (2009) (citations omitted). Indeed, we would strike these CSS defenses but for summary judgment already disposing of the same. See supra. ORDER ASG's motion for summary judgment against CSS's T.C.R.C.P. 12(b)(6), statute of limitations, and laches defenses is granted. The listed defenses may not be availed at trial. It is so ordered.

19

ASG cites to Mageo v. Government of American Samoa, for the proposition that ASG is always immune from laches and statutes of limitations defenses. 4 A.S.R. 874, 881-85 (App. Div. 1963). However, Mageo's holding concerning the government's immunity from laches and statutes of limitations defenses was specifically rendered in a lands-action context and vein. Id. at 882 (holding, inter alia, "it is the basic law that the statute of limitations does not run against...the Government of American Samoa with respect to land."). We find it unnecessary, and hence decline, to address that concept of immunity in this action concerning contract breach, as we can decide this present motion on other principles. 20 To cure a struck defense for failing the plausibility standard, one would amend his pleading. Cf. T.C.R.C.P. 15.

Cite As: Bartolome v. JKL, Inc., CA No. 30-08, slip op. at ____ [page number] (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for summ. j.).

RUBY BARTOLOME, RHODERIZA B. AMIL, and MELANDO BAGUISI, Plaintiffs, v. JKL, INC., JLK, INC., WILFREDO ALAMANI, AMERICAN SAMOA GOVERNMENT, UFUTI F. IEREMIA, VAIALEGA “JAKE” IAKOPO, PHILO MALUIA, Jr., FOA ASI, SIAOSI PONA LEAEA, FEPULEA’I ARTHUR RIPLEY, Jr., and DOES I through X, jointly and severally, Defendants. ________________________________ High Court of American Samoa Trial Division CA No. 30-08 June 21, 2012 [1] The viability of a Section 1983 claim in American Samoa is not premised on determining whether due process of law in the Territory is protected under the Fifth Amendment or the Fourteenth Amendment or whether American Samoa’s constitution preempts both. One need only look at the statute’s plain language to realize that the source of the constitutionally protected right is inconsequential for determining whether Section 1983 applies to a territory. It is enough that due process, as applied to the Territory, is a right protected under the U.S. Constitution and that the Territory is a territory contemplated under Section 1983. [2] Congress intended to expand the applicability of Section 1983 to enable the people in the territories to redress deprivations of constitutionally protected due process rights irrespective of whether such rights spring from the Fifth Amendment or the Fourteenth Amendment. [3] Where the conduct concerned involves that of a person acting under color of territorial law, the issue of whether Section 1983 is a right of action available to the people in American Samoa depends on whether: (1) due process in American Samoa is protected under the U.S. Constitution; and (2) American Samoa is a territory that is contemplated under Section 1983. If both are true, then Section 1983 is a right of action that is available to the people in American Samoa. [4] Due process of law in American Samoa is a right whose protection not only comes from the Revised Constitution of American Samoa; it is also protected under the U.S. Constitution. [5] A constitutional right applies to an unincorporated territory on its own force if: (1) the right is fundamental as applied to the states and (2) its application to the territory would not be impracticable or anomalous to the culture and customs of American Samoa. [6] Due process, in general, is a constitutionally protected fundamental right. [7] Due process, as the U.S. Constitution protects it, is neither impracticable nor anomalous in the way that it is applied to the Territory. Due process is well observed and protected in the Territory. [8] American Samoa is indeed a territory contemplated under Section 1983. [9] American Samoa Government officials may be held liable in their individual capacities for violating due process while acting under the color of territorial law.

[10] Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. [11] It is the Immigration Board’s responsibility to determine whether an alien is deportable. Such determinations are made at a hearing, wherein, the alien facing deportation is entitled to be present. A.S.C.A. § 41.0605. Consequently, ASG is obligated to provide the alien, whose immigration status is at issue at the deportation hearing, with reasonable notice of the hearing, including the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1). A deportation proceeding is not required if the alien, “admits [to] being deportable because he has remained beyond the time allowed [and] voluntarily departs from American Samoa at his own expense.” A.S.C.A. § 41.0601. [12] Violations of a right specifically protected under the substantive component of the Due Process Clause of the Fourteenth Amendment are complete when the government official undertakes the wrongful action; consequently, claims for such violations are actionable under Section 1983. [13] The Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression. [14] The Supreme Court has repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense. A government official whose action “shocks the conscience” violates substantive due process. Thus, in a due process challenge to executive action, the threshold question is whether behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Government officials who use force with the intent to harm an individual is an action that may be deemed shocking. [15] The Fifth Amendment protects civil detainees in the custody of the United States from conditions that amount to punishment. Immigration detainees are civil detainees and should receive the same level of due process protection as pre-trial criminal detainees. Before RICHMOND, Associate Justice and MAMEA, Associate Judge. Counsel:

For Plaintiffs: Mark F. Ude. For Defendants American Samoa Government, Ufuti F. Ieremia, Vaialega “Jake” Iakopo, Philo Maluia, Jr., Foa Asi, Siaosi Pona Leaea, and Fepulea’I Arthur Ripley: Bensy Benjamin, Assistant Attorney General. For Defendants JKL, Inc., JLK, Inc., and Wilfredo Alamani: Charles V. Ala’ilima.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendants American Samoa Government (“ASG”), Ufuti f. Ieremia (“Ieremia”), Vaialega Iakopo (“Iakopo”), Philo Maluia, Jr. (“Maluia”), Foa Asi (“Asi”), Siaosi Pona Leaea (“Leaea”), and Fepulea’i Arthur Ripley (“Ripley”) present the following issues in support of their summary judgment motion: (1) 42 U.S.C. § 1983 is a right of action that is not available to the people in American Samoa; (2) American Samoa Government and the government officials [**2**] named in this action are entitled to qualified immunity; (3) Defendants did not violate Plaintiffs’— i.e., Rudy Bartolome (“Bartolome”), Rhoderiza Amil (“Amil”), and Melando Baguisi—due process rights because Plaintiffs did not suffer any deprivations of their property or liberty interests; (4) Plaintiffs’ Fourth and Eighth Amendment claims should be dismissed because Plaintiffs failed to plead to support sufficient facts to support these claims. For reasons provided below, we partially grant and partially deny Defendants’ Summary Judgment Motion, and we order Plaintiffs to amend their Complaint to properly bring their 42 U.S.C. § 1983 claims before this court.

STANDARD OF REVIEW “The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” T.C.R.C.P. 56(c). When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." T.C.R.C.P. 56(e). "Only disputes over facts that might affect the outcome of the suit under the [**3**] governing law" are "material," and such a dispute is "genuine" only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, non-specific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990). DISCUSSION I. 42 U.S.C. § 1983 applies to American Samoa Defendants contend 42 U.S.C. § 1983 (“Section 1983”) is not available as a right of action to the people in American Samoa because that statute serves only to enforce rights protected by the U.S. Constitution and federal laws. According to Defendants, whatever due process rights are in force within the Territory spring from the Revised Constitution of American Samoa and not from the U.S. Constitution or any federal statute because neither the Fifth Amendment nor the Fourteenth Amendment apply to American Samoa. Defendants specifically argue, Congress enacted Section 1983 primarily to enforce the Fourteenth Amendment, which applies only to states and not to [**4**] territories like American Samoa; hence, it would be logically inconsistent to infer that Congress had intended for Section 1983 to apply to a territory in which the Fourteenth Amendment has no force. Defendants similarly argue that a Section 1983 right of action cannot exist in American Samoa where the violated due process right is alleged to have sprung from the Fifth Amendment. According to Defendants, Congress never intended for the Fifth Amendment to apply in American Samoa since the Territory’s revised constitution already has a due process clause. [1] We disagree. The viability of a Section 1983 claim in American Samoa is not premised on determining whether due process of law in the Territory is protected under the Fifth Amendment or the Fourteenth Amendment or whether American Samoa’s constitution preempts both. One need only look at the statute’s plain language to realize that the source of the constitutionally protected right is inconsequential for determining whether Section 1983 applies to a territory. It is enough that due process, as applied to the Territory, is a right protected under the U.S. Constitution and that the Territory is a territory contemplated under Section 1983. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, [**5**] custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983 (emphasis added). The statute specifically “creates an action for damages and injunctive relief against individuals and local governmental bodies who deprive a plaintiff of rights, privileges, or immunities ‘secured by the Constitution and laws.’” SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:

THE LAW OF SECTION 1983 56 (3rd ed. 1991). Congress initially enacted Section 1983 to address Fourteenth Amendment violations. District of Columbia v. Carter, 409 U.S. 418, 423 (1973). However, it is evident in the subsequent changes Congress has made to the statute that Section 1983 is no longer limited to enforcing only the Fourteenth Amendment. By its very terms, a plaintiff may bring a Section 1983 claim against any “person who, under color of any statute, ordinance, [**6**] regulation, custom, or usage, of any . . . Territory . . .” deprives the plaintiff of “any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Section 1983, in its current version, is not so specific that it only singles out Fourteenth Amendment violations. 42 U.S.C. § 1983. The statute’s proscription is broad in that it plainly encompasses the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Id. (emphasis added). Granted, such a broad proscription carries little weight if one only were to strictly consider Section 1983’s original language in the context of Congress’ original purpose for enacting the statute. After all, nowhere in the statute’s original promulgation was “Territory” ever mentioned; “as originally enacted, [Section 1983] applied only to action under color of law of any State.” Flores De Otero, 426 U.S. at 582. [2] However, three years after enacting the statute, “Congress presumably pursuant to its power to ‘make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,’ granted by the Constitution’s Art. IV, § 3, cl. 2, added . . . the words, ‘or Territory’” to Section 1983. Examining Board of Engineers v. Flores De Otero, 426 U.S. 572, 582 (1976). Despite providing no explanation to why it [**7**] amended Section 1983, it seems apparent to us that Congress intended to expand the applicability of Section 1983 to enable the people in the territories to redress deprivations of constitutionally protected due process rights irrespective of whether such rights spring from the Fifth Amendment or the Fourteenth Amendment. Such congressional intent is not only plainly evident in the statute’s text it is also exemplified in Congress’ subsequent decision to amend the statute so that it would expressly apply to the District of Columbia, which is a congressionally controlled district whose due process protections come from the Fifth Amendment, not the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). The United States Supreme Court also appears to have embraced this idea of Congress extending Section 1983 to territories to enforce those constitutionally protected rights applicable to the territories regardless of whether such rights arise from the Fourteenth Amendment. According to the Court, “it is now settled that either the equal protection component of the Fifth Amendment or the equal protection clause of the Fourteenth Amendment applies to residents of Puerto Rico that deprivations of equal protection under color of Commonwealth law or regulation are redressible under 42 U.S.C. § 1983.” Tenorio v. Liga Atletica Interuniversitaria, 554 F.2d 492, 494 (1st Cir. [**8**] 1977) (citing Flores de Otero, 426 U.S. at 600-01). This bears special significance since the Court recognized that Puerto Rico was a territory under Section 1983. Flores de Otero, 426 U.S. at 597. Moreover, the Court seemed open to the notion that Puerto Rico, after having received the status of being a commonwealth, may now be considered a state where Section 1983 is concerned. Id. (“Whether Puerto Rico is now considered a Territory or a State . . . makes little difference because each is included within § 1983.”). Such indifference speaks loudly: Section 1983 is a right of action available to territories to enforce due process regardless of whether the right comes from the Fourteenth Amendment or the Fifth Amendment so long as the right is protected by the U.S. Constitution.1 [**9**]

1

Defendants argue that the Fifth Amendment cannot be the source of due process in American Samoa because it is a territory under the complete control of the United States Government, and its constitution contains a due process clause placed there by the federal government. The inference, therefore, is that the federal government would not have included a due process clause in the American Samoa Revised Constitution if it intended for the Fifth Amendment to remain applicable to American Samoa since to do so would render the Fifth Amendment superfluous. We disagree. Congress authorized Puerto Rico to draft its own constitution on a condition that Puerto Rico includes a bill of rights almost identical to that of the U.S. Constitution. Flores de Otero, 426 U.S. at 590-94. As is the case for American Samoa, the federal government has plenary control over Puerto Rico. Nonetheless, the Court recognizes that “the protections accorded by either the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to the residents of Puerto Rico.” Id. at

We see no reason why Congress would have intended otherwise. Congress’ original intent for enacting Section 1983—i.e., to enforce the Fourteenth Amendment—simply cannot be reconciled with its subsequent decision to include territories into the folds of Section 1983. If Congressional intent truly has not changed since the statute’s initial enactment, the consequent implication of adding “Territory” to Section 1983 would be that Congress had intended to extend the Fourteenth Amendment to the territories. Indeed, we are doubtful that Congress would so drastically expand a constitutional provision, whose application has long been held to be limited to the states, in so innocuous a manner as including the word “Territory” into a statute, which itself creates no new right but merely provides a right of action to enforce preexisting constitutional rights. [3] Consequently, we need not ask which amendment under the U.S. Constitution protects the violated constitutional due process right. It is, therefore, settled. Where the conduct concerned involves that of a person acting under color of territorial law, the issue of whether Section 1983 is a right of action available to the people in American Samoa depends on whether: (1) due process in American Samoa is protected under [**10**] the U.S. Constitution; and (2) American Samoa is a territory that is contemplated under Section 1983. If both are true, then Section 1983 is a right of action that is available to the people in American Samoa. Having established as much, we turn our attention now to addressing the two parts. A. Due process of law in American Samoa is protected by the U.S. Constitution [4] Due process of law in American Samoa is a right whose protection not only comes from the Revised Constitution of American Samoa; it is also protected under the U.S. Constitution. In the Insular Cases, the United States Supreme Court specifically held the Constitution applies in such unincorporated territories "insofar as its tenets restate those fundamental limitations in favor of personal rights that are ‘the basis of all free government.’” Dorr v. United States, 195 U.S. 138, 146-47 (1922) (quotations omitted). See also Balzac v. Porto Rico, 258 U.S. 298 (1922); Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S. 244 (1901). The Supreme Court specifically noted there are constitutionally protected rights so "fundamental in nature that they cannot be transgressed." Dorr, 195 U.S. at 146-47. We are certain that due process of law qualifies as being such a right. [5] Granted, the Supreme Court has never parsed the meaning of "fundamental limitations . . . in favor of personal rights that [**11**] are the basis of all free government." Nonetheless, we have previously held that a constitutional right applies to an unincorporated territory on its own force if: (1) the right is fundamental as applied to the states and (2) its application to the territory would not be impracticable or anomalous to the culture and customs of American Samoa.2 Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002) (citing Wabol v. Villacrusis, 958 [**12**]

600. We see no reason why American Samoa should be treated any differently. Therefore, as it is apparent to the United States Supreme Court where Puerto Rico is concerned, we find it equally apparent that the inclusion of a due process clause in a territorial constitution by the federal government does not automatically render the due process clause of the Fifth Amendment superfluous and inapplicable. To suggest that a fundamental right protected by the U.S. Constitution can so easily be set aside and replaced by a territorial constitution with nothing more than an inference based on speculation is indeed absurd. 2

The test articulates the methodology developed from the case law over the years for determining whether a constitutional right is binding upon an unincorporated territory. The first prong is based on what the Supreme Court long ago determined through the Insular Cases, to wit: only those fundamental rights protected under the Constitution could ever qualify as a "fundamental limitation in favor of personal rights that are the basis of all free government." See Dorr, supra. Needless to say, not all fundamental rights are binding to unincorporated territories in the same way, and to the same extent, as they are bound to the federal government and the states. Similarly, the impractical and anomalous prong of the test is not a novel conception for addressing the problem of determining what constitutional rights apply to unincorporated territories. The Supreme Court originally applied the impractical and anomalous prong to determine whether the Sixth Amendment right to a jury trial in a criminal case extends to U.S. citizens abroad. See Reid v. Covert, 354 U.S. 1 (1957). The District of Columbia Court of Appeals later applied the same prong in a tax evasion case addressing the issue of whether a U.S. citizen residing in

F.2d 1450 (9th Cir. 1990); King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975); STANLEY K. LAUGHLIN, JR., THE LAW OF THE UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS 147-56 (1st ed. 1995)). [6] Due process, in general, is a constitutionally protected fundamental right. See Mora v. Mejias, 206 F.2d 377, 382 (1st Cir. 1953) ("there cannot exist under the American flag any governmental authority untrammeled by the requirements of due process of law as guaranteed by the Constitution of the United States"); Palko v. Ct., 302 U.S. 319, 325 (1937) (the due process clause protects those “principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”); Powell v. Alabama, 287 U.S. 45, 68 (1932) (“The necessity of due notice and an opportunity of being heard is described as among the ‘immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.”). [7] Moving onto the second prong of the test, we have confirmed time and again that due process, as the U.S. Constitution protects it, is neither impracticable nor anomalous in the way that it is applied to the Territory. Due process is well observed and protected in the Territory. See, e.g., Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991) (notice is the central device for determining whether there are conflicting claims.); [**13**] Ifopo v. Siatu’u, 12 A.S.R.2d 24, 28 (App. Div. 1989) (The central purpose of A.S.C.A. §§ 37.0101-0104 is to give notice to potential claims.). The right is so engrained in the local psyche it is memorialized in the Territory’s constitution and incorporated into the statutes. AM. SAMOA REV. CONST. art. I (“No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.”); A.S.C.A. § 1.0201(2) (“the parts of the Constitution of the United States of America and the laws of the United States of America as, by their own force, are in effect in American Samoa.”). See generally A.S.C.A. §§ 1.010147.0804. It is, therefore, evident that due process of law in American Samoa is a right that is protected under the U.S. Constitution. Consequently, we remain unpersuaded by Defendants’ assertion that due process exists in American Samoa insofar as it is protected by the Territory’s constitution and not by the U.S. Constitution. What remains unclear, however, is whether due process in American Samoa springs from the Fifth Amendment or the Fourteenth Amendment. But, as discussed above, this ambiguity is irrelevant where the applicability of Section 1983 to American Samoa is concerned. [**14**] a.

B. American Samoa is a “Territory” contemplated under 42 U.S.C. § 1983

[8] With American Samoa being a U.S. territory and the fact that Section 1983, by its terms, extends to territories, it is evident that American Samoa is indeed a territory contemplated under Section 1983. While we need not spend much time addressing this matter, its relevance is such that some explanation on why American Samoa is a Section 1983 territory is merited. We begin this discussion with the case in which the Supreme Court defined at least some of the parameters distinguishing a territory contemplated under Section 1983 from an entity that it considered outside that statute's coverage. In Carter, the Court held that the District of Columbia was not a “Territory” within the meaning of Section 1983. The Court explained:

American Samoa had a right to a jury trial. King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975). Citing Reid, the court in King explained that the issue of whether a constitutional right is binding upon a territory depends not so much on whether the territory is incorporated or the right at issue is fundamental, but on "whether in American Samoa circumstances are such that trial by jury would be impractical and anomalous." Id. at 1147 (quotations omitted). In Banks v. Am. Samoa Gov't, we reaffirmed the Reid and Morton opinions by noting limitations of the Constitution's supreme authority over American Samoa. 4 A.S.R.2d 113 (Trial Div. 1987). In particular, we explained that the “rights which are regarded as fundamental in Anglo-American tradition but not in other free and civilized societies do not apply in an unincorporated territory, at least when they would tend to be destructive of traditional culture.” Banks, 4 A.S.R.2d at 124-25. See also King, 520 F.2d at 1147. We further noted that due process, as applied to American Samoa, "depends on whether the particular application in question is fundamental to ‘the basis of all free government,’ and on the burdens it would impose on the culture of the territory.” Id. at 126.

Since the District is itself the seat of the National Government, Congress was in a position to observe and, to a large extent, supervise the activities of local officials. Thus, the rationale underlying Congress’ decision not to enact legislation similar to § 1983 with respect to federal officials—the assumption that the Federal Government could keep its own officers under control—is equally applicable to the situation then existing in the District of Columbia. Carter, 409 U.S. at 429-30. The Court further explained that the circumstances in the territories were different from that of the District of Columbia. Id. at 430. Although “Congress [**15**] possessed plenary power over the Territories . . . effective federal control over the activities of territorial officials [for practical reasons] was virtually impossible.” Id. According to the Court: The territories were not ruled immediately from Washington. . . . . Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto. The scope of self-government exercised under these delegations was nearly as broad as that enjoyed by the States. Thus, although the Constitution vested control over the Territories in the Congress, its practical control was both confused and ineffective, making the problem of enforcement of civil rights in the Territories more similar to the problem as it existed in the States than in the District of Columbia. Id. at 430-31 (quotations and internal citations omitted). “With [the] unique status of the District of Columbia in mind, and in the absence of any indication in the language, purposes, or history of § 1983 of a legislative intent to include the District within the scope of its coverage,” the Court concluded that the District of Columbia was not a “State or Territory” within the meaning of Section 1983.3 Id. at 432. Keeping in mind these considerations, we see no reason why American Samoa should not be included within Section 1983. From [**16**] an administrative standpoint, American Samoa is somewhat more isolated from the Federal Government than the other U.S. territories. Aside from the fact that more than 7,000 miles separate American Samoa from Washington D.C. or that the closest state is approximately 2,500 miles away, the Territory remains outside any federal judicial district or circuit. As evidenced by the scarcity of permanent federal offices within its borders, federal presence within the Territory indeed seems virtually nonexistent when compared to the other U.S. territories. Such seeming isolation certainly is understandable given the fact that, unlike the District of Columbia, it is the policy of the United States Government to place American Samoa in a position of selfgovernance. See Secretary’s Order No. 3009(g)(5) (“Until Congress of the United States provides further for the civil government of American Samoa, the President of the United States, through the Secretary of Interior, has the ultimate responsibility for the administration of the Territory of American Samoa.”). See also REV. CONST. AM. SAMOA, preamble (“Whereas it is appropriate that, in the process of developing self-government, the people of American Samoa should enjoy certain rights and responsibilities inherent in the representative form of government”); 48 U.S.C. § 1662a (“Amendments of, or modifications to, the constitution of [**17**] American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect January 1, 1983, may be made only by Act of Congress.”). Indeed, American Samoa today enjoys a level of autonomy and selfgovernance that is noticeably absent from the District of Columbia. Specifically, American Samoa has a republican form of government; it elects its own Governor and legislature; appoints the directors and lesser officials in the executive branch, sets its own educational policies, amends its own civil and criminal codes, and determines its own budget. See generally REV. CONST. AM. SAMOA and A.S.C.A. §§ 1.0101-47.0804. Moreover, American Samoa retains full control over its borders and sets its own tax policies and laws. See Id. Also, Congress implicitly has ratified American Samoa’s constitution making the Territory closely akin to that of an organized territory. See 48 U.S.C. § 1662a. While congressional authority over American Samoa is plenary, Congress and the Executive Branch of the United States have taken many strides toward fulfilling the goal of Congress to increase the Territory’s self-governance.

3

Ironically, six years after Carter, Congress amended Section 1983 to include the District of Columbia. Act of Dec. 29, 1979, Pub. L. No. 96-170, § 1, 93 Stat. 1284.

Consequently, federal policy regarding the administration of American Samoa is intentionally limited and, at times, certainly confusing and ambiguous. Daily administration of American Samoa undoubtedly [**18**] is a local governmental responsibility and federal supervision is nowhere near the level at which it is with the District of Columbia or other territories. Needless to say, federal control over American Samoa is at a much longer arm's length than the clear and direct control Congress exerts over the District of Columbia or other territories. In many ways, American Samoa enjoys a level of freedom from direct federal oversight not unlike the territories contemplated by the Court in Carter. In light of what is plainly stated in Section 1983, its purpose, and American Samoa's political status as a territory of the United States, it is quite clear to us that American Samoa is indeed a territory within the meaning of Section 1983. Consequently, that statute provides a right of action that is available to the people in American Samoa. As an aside, we duly note Defendants' contention that the policies underlying Section 1983 and American Samoa's status as a territory go against applying that statute to the Territory. Relying almost entirely on the Supreme Court's opinion in Ngiraingas v. Sanchez, 495 U.S. 182, 203-04 (1990), Defendants specifically argue that the Court's interpretation of the policy underlying the Section 1983 had changed over the years from what it had originally presented in Carter when it ruled Section 1983 inapplicable to the District of Columbia. Defendants reached [**19**] this conclusion by pointing out the majority's rejection of the dissenting opinion, which relied heavily on Carter. We agree Section 1983 jurisprudence has changed significantly since Carter. Nonetheless, we fail to see how Ngiraingas could be construed as championing a policy that goes against applying Section 1983 to American Samoa. That case focused on a very narrow issue: whether the Territory of Guam or its officers acting in their official capacities are "persons" under Section 1983. Ngiraingas, 495 U.S. at 186-92. In Ngiraingas, after finding that the language of Section 1983 provided no indication to whether "person" includes territories, the Supreme Court looked at the intent of Congress at the time it enacted that statute and when it amended it to include the word "Territory." Id. The Court noted that Congress, when it enacted Section 1983 in 1871, was concerned with the lack of federal control over the unconstitutional acts of state officials, not with the territories whose courts were already under direct federal control. Id. at 187-189. As such, the purpose for enacting Section 1983 was to enforce the Fourteenth Amendment. Seeing how the Fourteenth Amendment applied only to States, the Court saw it unlikely that Congress would have intended to include territories as persons in 1871. Id. Not surprisingly, the Court refused to expose territorial [**20**] governments and officials, acting in official capacities, to suit under Section 1983. Id. This reading remained unchanged even after Congress amended Section 1983 to expressly include "Territory" into the fold. Id. at 189-92. This is because, at the same time Congress amended Section 1983, it redefined the word "person" by excluding territories from its meaning. Id. Justice Brennan recognized the narrow opinion the majority presented; thusly, he strictly confined his dissenting opinion within the boundaries of that narrow holding. [9] None of this, however, serves to completely bar the application of Section 1983 to the territories. The policy changes and justifications Defendants gleaned from Ngiraingas are specific to the issue of whether a territory or a government official acting in an official capacity is considered a "person" within the meaning of Section 1983. The reasons the Court in Ngiraingas spells out for why territories are not persons under Section 1983 have no bearing on the issue of whether a Section 1983 claim can be brought against a government official in an individual capacity. As we have discussed extensively, Section 1983 is a right of action available to the people in American Samoa. Granted, Ngiraingas has closed the door to exposing ASG and its officials acting in official capacities to such suit. However, not all doors have been barred; it is indeed the case [**21**] that ASG officials may be held liable in their individual capacities for violating due process while acting under the color of territorial law. Although it would have behooved Plaintiffs to explicitly state as much, we find the Complaint sufficient to establish that Plaintiffs are suing the named government officials in their individual capacities. Nonetheless, in light of Ngiraingas, we find it appropriate to dismiss all Section 1983 claims against the American Samoa Government. II. The ASG officials named in the action may not be entitled to qualified immunity Defendants argue that the ASG officials involved in this action have qualified immunity from civil suit and liability because it was not reasonably clear that the forceful removal of Plaintiffs from the Territorial Correctional Facility

(“TCF”) was unlawful. Defendants further argue that Ieremia, Iakopo, and Ripley should not be held liable for the forcible removal of Plaintiffs Bartolome and Amil from the TCF because they were not present when the two plaintiffs were removed. We agree Plaintiffs’ Amended Complaint is severely deficient, and it fails to provide sufficient facts to support the plausibility of some of its claims. Nonetheless, this being a summary judgment motion, we are required to consider facts submitted outside the pleadings in a light most favorable to the [**22**] Plaintiffs. In so doing, we are convinced that justice would not be served by ignoring those events that transpired after Bartolome and Amil had been forcibly removed from the TCF.4 As such, we seriously query whether the ASG officials truly were acting within their authority when they removed Bartolome and Amil from the TCF. We cannot help but wonder whether the ASG officials intentionally and maliciously abused their governmental powers and purposely attempted to hide such abuses behind a façade of facially lawful procedural formality and the guise of legal authority. Under such genuine suspicions, justice simply will not allow us to put on our horse blinds and look only at the pleadings. [10] Bearing all of this in mind, we turn our attention to Maluia and Iaokopo.5 Indeed, “government officials performing discretionary functions, generally are shielded from liability [**23**] for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). From what we have gathered from the record, the forcible removable of Bartolome and Amil seems but the headwater of a stream of events charted by Maluia and Iakopo to advance an unlawful scheme to deport these two individuals in violation of their constitutionally protected rights and the Territory’s immigration laws. Evidence suggesting that such abuses of governmental power may have occurred simply cannot be ignored. Consequently, we are not at all convinced that Maluia and Iakopo should be entitled to qualified immunity.6 Maluia and Iakopo arrived at the TCF on May 12, 2008, with orders to release Bartolome and Amil (“Release Orders” or “Orders”) from custody. However, rather than releasing Bartolome and Amil from government custody altogether, the corrections officers, at the request of Maluia and Iakopo, transferred custody of the two detainees directly over to Maluia and Iakopo who, immediately thereafter, drove them to the airport for deportation.7 We find all of this troubling for several reasons. [**24**] Based on the warrants and supporting affidavits authorizing the arrest of Bartolome and Amil, it is our impression ASG lawfully arrested Bartolome and Amil for failing to comply with the Territory’s immigration law by remaining within the Territory beyond the time allowed. The warrants further lead us to believe ASG was holding the two plaintiffs at the TCF until the Immigration Board could finally determine whether both aliens should be deported. These reasons undoubtedly make the arrests and detentions lawful given that A.S.C.A. § 41.0610 expressly grants ASG such authority. The same statute, however, limits immigration arrests to such purposes. Indeed, we found

4

See Affidavits of Ruby Bartolome and Rhoderiza Amil, which Plaintiffs attached with their response to Defendants’ Summary Judgment Motion. Plaintiffs’ Opposition to Defendants’ Summary Judgment Motion. See also Officer Siaosi Leaea’s and Officer Asi’s Police Report. 5 It is not entirely clear whether Maluia was the only officer present when Bartolome and Amil were forcefully removed from the TCF or whether Iakopo was also there. In their affidavits, which were attached to Plaintiffs’ Opposition to Defendants’ Summary Judgment Motion, Bartolome and Amil only mention Maluia being present at the time they were forcibly removed from the TCF over to Immigration custody. However, Officers Leaea and Asi mention, in their police report, that Iakopo and Maluia were present when they removed Bartolome and Amil to Immigration custody. Seeing that there is a genuine issue as to whether Maluia was acting alone or together with Iakopo when Bartolome and Amil were forcibly removed from the TCF, we find it premature to disregard Iakopo entirely; consequently, for purposes of this summary judgment order, we assume Iakopo was present. 6

7

See n.4, supra.

Bartolomes and Amils affidavits give us cause to question the legality of the removal of the two plaintiffs from the TCF.

nothing else in the record suggesting that ASG arrested Bartolome and Amil for reasons outside their failure to comply. [11] The law is also clear in that, under such circumstances, it is the Immigration Board’s responsibility to determine whether an alien is deportable. Such determinations are made at a hearing, wherein, the alien facing deportation is entitled to be present. A.S.C.A. § 41.0605. Consequently, ASG is obligated to provide the alien, whose immigration status is at issue at the deportation hearing, with reasonable notice of the hearing, including the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1); Farapo v. Am. Samoa Gov’t, 23 [**25**] A.S.R.2d 136 (App. Div. 1993). A deportation proceeding is not required if the alien, “admits [to] being deportable because he has remained beyond the time allowed [and] voluntarily departs from American Samoa at his own expense.” A.S.C.A. § 41.0601. We found nothing in the record showing that the Immigration Board authorized the deportation of Bartolome and Amil. The record is similarly devoid of any document from the Immigration Board suggesting that deportation hearings for Bartolome and Amil had been scheduled or that they had been notified of such hearings. The Orders that Maluia and Iakopo presented to the TCF to have Bartolome and Amil released into their custody provides nothing about authorizing the immigration officers to transport Bartolome and Amil to the airport or to have them deported from the Territory. To the contrary, the Release Orders state that Bartolome and Amil “may be released from custody” because a “person in American Samoa” accepted the responsibility of ensuring that Bartolome and Amil would appear before the Immigration Office upon request. Therefore, it is indeed odd that Maluia and Iakopo would attempt to deport Bartolome and Amil with release orders that so clearly entitled the two plaintiffs to freely remain within and travel about the Territory. The fact that neither Bartolome’s and Amil’s attorney nor Tom Hardy (i.e., the responsible individual [**26**] ensuring that the two plaintiffs would appear at the Immigration Office upon request) were aware of their release further punctuates Maluia’s and Iakopo’s seeming unlawful conduct. The resistance Bartolome and Amil put forth from being removed from the TCF certainly settles any question as to whether they had volunteered to depart from the Territory. Indeed, Maluia’s and Iakopo’s motivations for effectuating such removal from the TCF seem to violate wellestablished immigration laws and constitutional rights. Based on the facts before us, it is our impression that Maluia and Iakopo never intended to follow the Release Orders; instead, they used the Orders as a pretext to have custody over Bartolome and Amil transferred to them so that they could then expel the two plaintiffs from the Territory. Maluia’s and Iakopo’s attempt at deporting the two plaintiffs is made all the more egregious by the likelihood that the Immigration Officers were aware that they never had the authority to do so. After all, both officers had two days to confirm whether the Orders gave them the authority to expel Bartolome and Amil from the Territory and whether the Immigration Board had already made a determination over the deportability of the two plaintiffs. Given all of this, the idea that Maluia and Iakopo were acting under a mistaken belief of authority indeed seems preposterous. Such [**27**] facts are simply too hard to ignore. We are left seriously questioning whether or not Maluia and Iakopo had Bartolome and Amil removed from the TCF with the intent to expel them from the Territory knowing full well that deporting the two aliens was not only beyond their authority but also in violation of the law and wellsettled constitutionally protected rights of the two plaintiffs. 8 Consequently, at this point, we believe qualified

8

An alien’s right to a deportation hearing and counsel at that hearing is settled constitutional law. If an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law. Although it later may be established [the alien] can be expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal. . . . Not even Congress may expel him without allowing him fair opportunity to be heard. Chew v. Colding, 344 U.S. 590, 596, 97-98 (1953). Furthermore, an alien facing deportation has a right to a hearing and a right to be represented by counsel at that hearing; this is too important a fundamental right to circumscribe. Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994). Cf. A.S.C.A. § 41.0205. It is without question Plaintiffs in the present matter were entitled to a deportation hearing. Such a constitutional right is well settled. We find nothing in the record showing that the ASG afforded Bartolome and Amil such a

immunity does not shield Maluia and Iakopo from liability for any potential abuses of governmental power in which they may have engaged. [**28**] Regarding Officers Leaea and Asi, it certainly does appear they were unaware Maluia and Iakopo intended to deport Bartolome and Amil when they transferred custody of the two plaintiffs over to the Immigration Officers. Nonetheless, the facts describing the methods and level of force the officers used to remove the two plaintiffs are sufficient to raise a genuine issue of whether the officers acted reasonably under the circumstances. Consequently, we find this matter merits further consideration. Rendering a final judgment by summarily dismissing the claims against Leaea and Asi without further considering the extent of the injuries Bartolome and Amil suffered together with their conduct and that of the officers indeed seems premature at this juncture. Ieremia and Ripley, however, present a different story. The Amended Complaint is devoid of factual allegations that a conspiracy between these individuals and the other named defendants existed. Instead, it is littered with bald assertions and general statements that fail to convince us that Ieremia and Ripley are properly before us as defendants in this action. Moreover, the facts in the record fall short of convincing us that these individuals should be held liable for the conduct of the ASG officials when they forcibly removed Bartolome and Amil from the TCF. We certainly see nothing in the [**29**] record that would otherwise implicate a conspiracy involving these individuals. Consequently, it seems only proper that the Section 1983 claims against these two individuals be dismissed. III. A genuine issue exists on whether ASG officials violated Bartolome’s and Amil’s substantive due process rights Defendants further argue that the only due process violation alleged in Plaintiffs’ Complaint is their forcible removal from the TCF by ASG officials. Defendants conclude this alone does not deprive Bartolome and Amil of any liberty interest since they no longer had a right to remain in the TCF. [12] Violations of a right specifically protected under the substantive component of the Due Process Clause of the Fourteenth Amendment are complete when the government official undertakes the wrongful action; consequently, claims for such violations are actionable under Section 1983. Zinermon v. Burch, 494 U.S. 113, 125 (1990). [13] “The Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.’” Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (quoting DeShaney v. Winnebago County Dept. Social Servs., 489 U.S. 189, 196 (1989)). The Court has long held that “the touchstone of due process is protection of the individual against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S. 833, 847 [**30**] (1998) (quoting Wolff v. McDonell, 418 U.S. 539, 558 (1974)). It is the substantive component of the Due Process Clause that protects individuals who have not been “seized” and are not prisoners but whom government officials have wrongfully subjected to excessive force amounting to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“Pretrial criminal detainees in state custody are protected by the Due Process Clause of the Fourteenth Amendment against any conditions that constitute punishment.”). [14] The Supreme Court has "repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’” Id. at 846 (quoting Harker Heights, 503 U.S. at 129). A government official whose action “shocks the conscience” violates substantive due process. Lewis, 523 U.S. at 847. “Thus, in a due process challenge to executive action, the threshold question is whether behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8. Government officials who use force with the intent to harm an individual is an action that may be deemed shocking. Id. at 849 (“Conduct intended to injure in some way unjustifiable by any government interest is the sort of official

hearing at the time Maliua and Iakopo arrived at the TCF and took custody over the two plaintiffs. We also find no inkling of information suggesting that Bartolome and Amil voluntarily waived their rights to a deportation hearing.

[**31**] action most likely to rise to the conscience-shocking level.”). See also United States v. Salerno, 481 U.S. 739, 746 (1987).9 [15] Similarly, “the Fifth Amendment protects civil detainees in the custody of the United States from conditions that amount to punishment.” See Wong Wing v. U.S.¸ 163 U.S. 228, 237-38 (896). Immigration detainees are civil detainees and should receive the same level of due process protection as pre-trial criminal detainees. See Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000). A civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive. A restriction is punitive where it is intended to punish, or where it is excessive in relation to its non-punitive purpose or is employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, with respect to an individual confined awaiting adjudication under civil process, a presumption of punitive conditions arises where the individual is detained under conditions identical to or similar to, or more restrictive than those under which pretrial criminal detainees are held, or where the individual is detained under [**32**] conditions more restrictive than those he or she would face upon commitment. Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004). Cf. Agyeman v. Corrections Corp. of Amer., 390 F.3d 1101, 1104 (9th Cir. 2004) (civil detention “may be a cruel necessity of our immigration policy; but if it must be done, the greatest care must be observed in not treating the innocent like a dangerous criminal.”).10 For purposes of this summary judgment order, we find enough facts for us to fairly assume that, at the time the ASG officials removed Bartolome and Amil from the TCF, the two plaintiffs likely were detainees. It certainly appears that way given that they never truly were released from ASG custody. Suffice it to say, if it is indeed true that Maluia and Iakopo removed the two plaintiffs from the TCF against their will with the intent to unlawfully expel them from the Territory then Bartolome and Amil may very well have suffered a substantive due process deprivation. The two plaintiffs committed no crimes other than overstaying their welcome. As plainly stated in the [**33**] Release Order, Bartolome and Amil rectified this violation. Consequently, the Attorney General signed the Release Orders approving their release from ASG custody and authorizing them to remain in the Territory. That Maluia and Iakopo attempted to deport Bartolome and Amil in contravention of the Release Orders is indeed very disconcerting and merits closer inspection. Such conduct may very well qualify as conscience-shocking and violate substantive due process. The fact that the ASG officials may have applied excessive force to remove Bartolome and Amil from the TCF further adds to the egregiousness of their conduct. Bartolome and Amil, for all intents and purposes, were free to leave on their own accord; however, this is not what may have happened. As we have alluded above, we are unwilling to make a final determination on whether Bartolome and Amil were detainees or free individuals who were unlawfully seized in violation of the Fourth Amendment. There simply are

9

As discussed infra, bartolome and Amil are civil detainees more closely akin to pre-trial criminal detainees than prisoners. Keeping that in mind, the Supreme Court has held that deprivations of pre-trial detainee interests caused by government officials acting with deliberate indifference possess sufficient culpability to qualify any such abusive conduct as conscience-shocking; consequently, such conduct constitutes a substantive due process violation. Lewis, 523 U.S. at 849-51. The Court, however, cautions that deliberately indifferent conduct, by itself, is not so egregious that it patently qualifies as conscience-shocking behavior. Id. 850. “Substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking.” Id. 10

We duly note that under A.S.C.A. § 41.0706, “Any person who refuses or fails to comply with any notice issued to him under the provisions of [the Territory’s immigration laws] or the rules [made under the immigration laws] with which he is required to comply, shall upon conviction be guilty of a class A misdemeanor and sentenced accordingly.” Indeed, it is partly because Bartolome and Amil had violated this statute that warrants for their arrest had been issued. It certainly appears that our own immigration laws liken Bartolome and Amil to that of criminal pre-trial detainees. Whether this truly is the case is a matter that merits further scrutiny and is beyond the scope of this summary judgment motion.

too many questions about their status as detainees to discount Plaintiffs’ Fourth Amendment claims. It would indeed be error on our part to so quickly discount Plaintiffs’ Fourth Amendment claims if it turns out that the harms they suffered were seizures under the Fourth Amendment and not violations of their substantive due process rights. Furthermore, although it certainly appears Plaintiffs [**34**] have failed to plead sufficient facts in the Amended Complaint to render such Fourth Amendment claims plausible, a review of the entire record reveals that there are enough facts to raise genuine issues over the veracity of these claims. Accordingly, we are unwilling to dismiss Plaintiffs’ Fourth Amendment claims at this juncture.11 What we are certain of, however, is that at no such time could Bartolome and Amil have been considered prisoners. Consequently, we see nothing in the record to support Plaintiffs’ Eighth Amendment claims. We need not reiterate our refusal to ignore the information presented to us outside the pleadings that cause us to question the lawfulness of the government officials’ conduct. However, we also recognize that Plaintiffs’ Amended Complaint is grossly insufficient because it completely ignores everything that happened after Bartolome and Amil were forcefully removed from the TCF. Consequently, the picture the Amended Complaint paints seems to be one in which the ASG officials did nothing wrong when they forcefully removed the two plaintiffs from the TCF. This picture also seems to hold up even if we were to consider the two plaintiffs’ subsequent restraint and attempted deportation by Maluia and Iakopo. After all, the Amended [**35**] Complaint is clear; the only issue the plaintiffs preserve, regarding the way the ASG treated them that day, is how the ASG officials forcefully removed them from the TCF. We surmise from Plaintiffs’ affidavits, however, that this is not the only potential grievance the plaintiffs have against Defendants. Why so much of the Amended Complaint fails to mention details so crucial to their Section 1983 claims is beyond our ken. We are indeed tempted to limit the scope of the Section 1983 claims to that of the plaintiffs’ forceful removal from the TCF as maintained in its Amended Complaint. To do so would likely bar the plaintiffs from pursuing any of the Section 1983 claims and, possibly, the other claims against the ASG officials. However, it is our impression that such procedural failures have little to do with the plaintiffs themselves and more to do with their counsel. Constitutional rights are at stake here; we hardly think justice would allow us to extinguish so great a collection of rights because of the procedural fecklessness of Plaintiffs’ counsel. We, therefore, exercise our authority under T.R.C.P. 15 by offering Plaintiffs a final opportunity to amend their Complaint so that their Section 1983 claims are properly before this court. [**36**] ORDER We find that 42 U.S.C. § 1983 is a right of action available to the people in American Samoa. We partially grant Defendants’ Summary Judgment Motion and order that all Section 1983 claims against ASG, Ieremia, and Ripley be dismissed. We also partially deny Defendants’ Summary Judgment Motion and uphold Plaintiffs’ Section 1983 claims against Maluia, Iakopo, Leaea, and Asi. Lastly, we order that Plaintiffs amend their Complaint to properly bring their Section 1983 claims against Maluia, Iakopo, Leaea, and Asi before this court. Plaintiffs have 30 days to make all the necessary amendments to their Complaint. We warn Plaintiffs that a failure to properly amend the Complaint could result in a dismissal of the claims against these individuals. It is so ordered.

11

“Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

Cite As: Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at ____ [page number] (Trial Div. July 10, 2012) (order dismissing motion). AMERICAN SAMOA GOVERNMENT, Plaintiff, v. RAYMOND NOA, Defendant ___________________________________ In the High Court of American Samoa Trial Division CR No. 96-10 July 10, 2012 [1] Once a court renders a sentence in a criminal case, for which no appeal is taken, that criminal case ends. The criminal is then subject to the jurisdictional purview of the executive branch’s Corrections Division. A.S.C.A. § 46.2303. [2] Collateral issues concerning the Corrections Division or the Warden’s acting outside its/his scope of authority or violating constitutional or statutory rights can be addressed by the High Court’s Trial Division in a civil action. A.S.C.A. § 3.0208(a)(7)-(8). [3] A sentenced defendant cannot tack a civil motion for a special writ concerning his imprisonment onto his criminal case; the defendant must file a civil action or seek redress with the Corrections Division. Before: KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and FA’AMAUSILI, Associate Judge. Counsel:

For Plaintiff, Mitzie J. Folau, Assistant Attorney General For Defendant, Raymond Noa, pro se ORDER DISMISSING MOTION

The Defendant Raymond Noa (“Noa”) was sentenced on October 28, 2011 for Second Degree Assault, a class D Felony; Second Degree Property Damage, a Class A Misdemeanor; and Public Peace Disturbance, a Class B Misdemeanor after being found guilty of the same by a jury of his peers. The sentences were for five years, one year, and six months imprisonment, respectively, sentences running concurrently. Noa filed a verbosely entitled motion for, from what we can glean, are certain parole and/or work release benefits he feels are being denied him unjustly by the Corrections Division and the Warden of Territorial Correctional Facility (“TCF”). The same came on for hearing July 6, 2012, Noa appearing pro se. [1, 2] Once a court renders a sentence in a criminal case, for which no appeal is taken, that criminal case ends. The criminal is then subject to the jurisdictional purview of the [**2**] executive branch’s Corrections Division. A.S.C.A. § 46.2303. Some collateral issues concerning the Corrections Division or the Warden’s acting outside its/his scope of authority or violating constitutional or statutory rights can be addressed by the High Court’s Trial Division in a civil action. A.S.C.A. § 3.0208(a)(7)-(8). See, e.g., Lutu v. Ale, 28 A.S.R.2d 43, 53 (Trial Div. 1995). [3] Here, Noa has tacked on his motion, seemingly asking for a special writ, onto his criminal case; we have no jurisdiction to hear the motion. Noa must either file a civil action or remedy his grievances with the Corrections Division. Regardless, Noa’s present motion is dismissed. It is so ordered.

Cite As: Tuli’au v. Tuiasina, CA No. 22-12, slip op. at ____ [page number] (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). IVAN TULI’AU, Plaintiff, v. SALAMANO LAUMOLI TUIASINA; AMERICAN SAMOA GOVERNMENT, jointly and severally, Defendants. ___________________________________ High Court of American Samoa Trial Division CA No. 22-12 July 26, 2012

[1] Complaints which fall short of the plausibility standard are subject to dismissal under T.C.R.C.P. 12(b)(6) unless the court lacks the subject matter jurisdiction to hear a complaint, in which case dismissal under T.C.R.C.P. 12(b)(1) is appropriate. [2] A former or current government employee who wishes to challenge his employment-termination must bring such a dispute before the Office of the Administrative Law Judge (“OALJ”) in the first instance; that office has primary jurisdiction over such disputes. From the OALJ, a disaffected party may then seek judicial review, not at the Trial Division level but before the Appellate Division. A.S.C.A. § 4.0604 (b) & (h). [3] Any claim premised on the American Samoa Government’s failure to renew a professional license are matters beyond the scope of the Trial Division’s subject matter jurisdiction. A.S.C.A. § 31.1006 explicitly requires that “[a]ll proceedings respecting the...refusal, suspension, revocation, or modification of a [medical practitioner’s] license issued by the [Regulatory Health] Board, and judicial review thereof, must be in accordance with the provisions of the Administrative Procedures Act set forth in 4.1001 et seq.” [4] If the substance of a plaintiff’s claims hinges on whether the government wrongfully terminated the plaintiff’s employment, a decision the Office of the Administrative Law Judge (“OALJ”) renders, the form of plaintiff’s complaint as one lying in tort under the Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq., will not stand. The proper venue for such a dispute lies with the OALJ. Before: KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; FA’AMAUSILI, Associate Judge. Counsel:

For Plaintiff, Mark F. Ude. For Defendant, ASG, Bensy Benjamin, Assistant Attorney General. ORDER GRANTING DEFENDANT ASG’S MOTION TO DISMISS

BACKGROUND We have a less-than-accurate understanding of the allegations in this action because Plaintiff’s pleadings leave much to be desired in the way of a tenable factual background. Regardless, on May 17, 2012, Plaintiff Ivan Tuli’au (Tuli’au) filed a Complaint listing Salamano Laumoli Tuiasina (“Tuiasina”) and the American Samoa Government (“ASG”) as Defendants. On June 26, 2012, ASG filed a Motion to Dismiss for lack of Subject Matter Jurisdiction and alternatively a Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted — motions to

dismiss pursuant to T.C.R.C.P. 12(b)(1) and 12(b)(6), respectively. On July 18, 2012, Tuli’au countered with an Opposition, which addressed the T.C.R.C.P. 12(b)(1) argument. [**2**] Both of ASG’s motions came on for hearing on July 23, 2012, counsel for both parties appearing. However, immediately prior to the time set for hearing, Tuli’au also filed, without leave of court and therefore in violation of T.C.R.C.P. 15(a), an Amended Complaint, in a seeming effort to preserve his noticeably deficient Complaint. From what we can glean, Tuli’au was a locally licensed medical doctor who lost a government job on-island. In his Complaint, Tuli’au alleges that ASG would not renew his professional license,1 which, among other things, impacted him economically. We ruled from the bench on July 23, 2012; this Order merely echoes in written form that prior ruling: we find ASG’s argument concerning T.C.R.C.P. 12(b)(6) persuasive, but dismiss this action for lack of subject matter jurisdiction under T.C.R.C.P. 12(b)(1). DISCUSSION I. T.C.R.C.P. 12(b)(6) [1] We have twice articulated the pleadings standard in this jurisdiction, that of plausibility, which relies on the U.S. Supreme Court precedents of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937 (2009). Pac. Grading Corp. v. Constr. Servs. of Samoa, CA [**3**] No. 43-02, slip op at 12-16 (Trial Div. May 3, 2012) (order granting ASG’s mot. for sum. j.); Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). Plaintiff’s pleadings (including an improperly filed Amended Complaint)2 fall far short of the plausibility standard and are subject to dismissal under T.C.R.C.P. 12(b)(6). However, we are satisfied that T.C.R.C.P. 12(b)(1) is the more appropriate ground for dismissal in this instance as we cannot make a ruling if we lack the subject matter jurisdiction to do so. Hall v. Am. Samoa Med. Cntr., CA 43-07, slip op. 3-4 (Trial Div. July 6, 2012) (order of dismissal without prejudice). We lack subject matter jurisdiction here. II. T.C.R.C.P. 12(b)(1) [2] Tuli’au argues that he seeks relief under the Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq., and that this Court has exclusive jurisdiction to hear all torts leveled against the government. A.S.C.A. § 43.1209(a). Tuli’au vaguely proffers negligence, defamation, retaliation, intentional infliction of emotional distress, and constitutional violations as the claims for his present action. Notwithstanding these “claims,” the thrust of Tuli’au’s Complaint hinges on whether (1) he was terminated and (2) whether such termination was improper or wrongful. Indeed, it appears as if Tuli’au is attempting to circumvent the statutory process for wrongful termination [**4**] controversies against the government. However, a former or current government employee who wishes to challenge his employment-termination must bring such a dispute before the Office of the Administrative Law Judge (“OALJ”) in the first instance; that office has primary jurisdiction over such disputes. A.S.C.A. § 4.0604(b). From the OALJ, a disaffected party may then seek judicial review, not at the Trial Division level but before the Appellate Division. A.S.C.A. § 4.0604(h). That is the process due to Tuli’au in this instance. [3] Moreover, Tuli’au’s cause(s) premised on ASG’s failure to renew his professional license are also matters beyond the scope of our subject matter jurisdiction. A.S.C.A. § 31.1006 explicitly requires that “[a]ll proceedings respecting the...refusal, suspension, revocation, or modification of a [medical practitioner’s] license issued by the [Regulatory Health] Board, and judicial review thereof, must be in accordance with the provisions of the Administrative Procedures Act set forth in 4.1001 et seq.” Id. (emphasis added). [4] Indeed, it appears Tuli’au is attempting to guise his Complaint as one full of vaguely-stated torts against the government to seemingly circumvent the OALJ; however, the substance of his claims (though very vaguely stated) hinges on whether the ASG wrongfully terminated Tuli’au’s employment 3 (a decision the OALJ renders). Accordingly, we will not entertain this action; the [**5**] proper venue for this controversy lies with the OALJ.

1

Cf. A.S.C.A. §§ 30.1001-.1011, which vests in the Regulatory Health Board, not ASG, the licensing of medical practice and practitioners in the Territory. 2 Cf. T.C.R.C.P. 15(a). 3 Cf. A.S.C.A. §§ 31.001, et seq.

ORDER The present action is dismissed for lack of subject matter jurisdiction. It is so ordered.

Cite As: De Guzman v. Fiamalua, CA No. 23-12, slip op. at ____ [page number] (Trial Div. June 7, 2012). MA CRISTINA DE GUZMAN, Plaintiff v. VAELUAGA FIAMALUA, Defendant. ___________________________________ High Court of American Samoa Trial Division CA No. 23-12 June 7, 2012

[1] In a small claims dispute, a party can bring an action before the District Court and then appeal the judgment to the High Court within five days, or else the District Court’s judgment is final. A small claims action appealed to the Trial Division of the High Court results in a trial de novo, without any weight or reference given to the District Court trial below. [2] If a plaintiff cannot prove by a preponderance of the evidence the elements of his claim, the court will not issue a judgment in favor of the plaintiff. Preponderance means more probable than not. [3] In a civil action, under the preponderance of the evidence standard, when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. [4] On equal showings of evidence in a “he-said, she-said” dispute over an oral agreement, the court will rule in favor of the defendant. Before KRUSE, Chief Justice, and FA’AMAUSILI, Associate Judge. Counsel:

For Plaintiff, pro se For Defendant, pro se OPINION & ORDER

[1] This dispute was originally heard in the District Court under its simplified small claims procedure available under A.S.C.A. §§ 3.0308 and 43.0302; DCR 3. The District Court rendered judgment for the Plaintiff and consequently, the Defendant timely invoked her right to appeal under DCR 11 (by filing notice with this Court within 5 days of entry of the District Court’s judgment). Under A.S.C.A. § 3.0309, the procedure on appeal in small claims matters is that the action shall be tried de novo before the Trial Division of the High Court. This means that a party must relitigate the dispute “anew,” DCR 12, before this Court without any weight or reference to the District Court trial. The parties had a trial de novo before us on June 4, 2012. DISCUSSION [2, 3] We preface our discussion with some general principles of law. If a plaintiff cannot prove by a preponderance of the [**2**] evidence the elements of his claim, the court will not issue a judgment in favor of the plaintiff. Preponderance means more probable than not. Lafaele v. Cont’l Ins. Co., 4 A.S.R.2d 131, 133 (Trial Div. 1987). Note, therefore, that ‘“when the matter remains one of pure speculation or conjecture, or the probabilities are

at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’” Id. at 134 (quoting PROSSER & KEETON ON TORTS § 41 at 239 (5th ed. 1984). Plaintiff Ma Cristina de Guzman (“Cristina”) bought a 2009 Tacoma truck sometime in 2008 or 2009. She took out a loan with ANZ Bank to pay for the $30,500 vehicle. Around 2010, with $15,500 still remaining on the loan, Cristina realized she could no longer afford to make her regular monthly loan payments. In contemplation of this problem, Cristina turned to her, at that time, friend and current defendant in this present action, Vaeluaga Fiamalua (“Vaeluaga”). Vaeluaga’s father, Mataio Fiamalua (“Mataio”), owned a 2003 or 2004 (testimony varies) Suzuki vehicle of unspecified model. Vaeluaga agreed to take over Cristina’s loan for the Tacoma, to gain title to the Tacoma, and to give Cristina in return: the Suzuki, $1,000 in cash, and $1,000 to be paid in $100 installments. In 2010, on the day of the trade at Vaeluaga’s (or Mataio’s) residence, Cristina inspected the Suzuki, noticed a dent on the vehicle but made the trade anyway, driving off with the Suzuki and leaving behind the Tacoma. At this point, Vaeluaga and Mataio assumed Cristina’s loan repayments. This whole 2010 agreement was done orally. Not [**3**] until September 23, 2011, did the ANZ Bank formally transfer the loan repayment burden to Mataio (at Cristina’s request via letter). Sometime thereafter, Mataio registered the Tacoma in his name; however, to date, the Suzuki has not formally been transferred over to Cristina (the Suzuki’s title still lists Mataio as its owner). Apparently, Mataio’s presence is required to make a formal transfer of the Suzuki’s title and he has not made himself available for such transfer. Regardless, as of this date, Cristina acknowledges that Vaeluaga and Mataio made good on the $1,000 meant to be paid by installment, apparently satisfying the agreement. We find that Cristina subsequently became unsatisfied with the trade. As to when, however, we do not know. Regardless, over the course of time, following an additional outlay of $600 for new tires and a replacement battery, Cristina started to have second thoughts about the equities of the deal; she figured that the worth of the Suzuki and $2,000 was unfair recompense for a halfway-paid-for 2009 Toyota Tacoma. Cristina approached Vaeluaga sometime in November of 2011 and demanded an additional $1,000-2,000, to which Cristina testified, Vaeluaga orally agreed to pay $1,500 in $30 installments. At trial, Cristina provided a written agreement, dated November 7, 2011, that Vaeluaga allegedly refused to (and did not) sign, and three checks from Vaeluaga to Cristina totaling $120 (an amount seemingly akin to the terms of the November agreement Vaeluaga did not sign). The [**4**] check and deposit slips are dated December 2011 through January 2012. In turn, Vaeluaga testified that the check and deposit slips relate to the $1,000 installment payments Vaeluaga and Mataio were paying pursuant to the original agreement. Moreover, Vaeluaga testified that she refused to sign the tendered November written agreement because she did not feel she was bound to pay anything more than that contemplated in the original agreement. Before this Court, Cristina had a burden to provide all evidence proving the existence of a modified agreement where Vaeluaga would pay more than the $2,000.00 originally agreed to. 1 Cristina’s showing to this effect was weak. Besides the (unsigned) November agreement and the check and deposit slips we mentioned above, Cristina’s called one witness, her sponsor, who testified that she had accompanied Cristina to the November 2011 encounter with Vaeluaga. Rather than confirming Cristina’s claim that Vaeluaga had agreed to pay an additional $1,500, as the Court was led to believe when the sponsor was called to testify, the sponsor’s account of events was actually corroborative of Vaeluaga’s version of the facts: namely, that the latter did not agree to pay anything more beyond the $2,000 already paid to [**5**] Cristina. [4] On the strength of the evidence received, we cannot find that Vaeluaga had agreed to pay Cristina any additional monies beyond the $2,000 originally agreed to at the time of the trade. Accordingly, the facts as found cannot sustain a conclusion of any modification to the original, underlying agreement. That agreement was for the assumption of a loan and the trade of a Tacoma in exchange for a Suzuki and $2,000. Cristina could provide no writing or witnesses confirming that the Suzuki was guaranteed to look or operate in a certain matter, nor could she

1

This argument is Cristina’s only theory of relief. Without delving into the pith of contracts law, suffice it to note here that the courts are neither authorized nor empowered to reform contracts or agreements entered into between competent parties simply because the bargain struck proves, in hindsight, to be more advantageous to one side as opposed to the other(s). If anything, one-sided agreements are actually enforced by the courts, absent some sort of fraud.

provide that Vaeluaga was to provide more monies than the $2,000 initially agreed to. Indeed, Vaeluaga asserts that the underlying agreement was all that was contemplated. Cristina had her day in court to provide all evidence asserting her claim; she will not have another opportunity. On equal showings of evidence in this “he-said, shesaid” dispute over an oral agreement, we must rule in favor of the defendant. It is the plaintiff’s burden to prove the validity of her claim, Cristina’s burden. Here, Cristina has failed to so provide. ORDER Consequently, we render judgment in favor of Vaeluaga. Having said as much, we take it upon ourselves to add the following Rider: Although Mataio appeared at trial and sat with his daughter Vaeluaga, we note that he was never formally made a party to these proceedings either in this Court nor before the [**6**] District Court below (that is, Cristina never sued Mataio, only Vaeluaga). Consequently, we have no jurisdiction to order Mataio to do anything, such as require him to transfer the ownership papers of the Suzuki to Cristina’s name. Regardless, we strongly urge Mataio to do so, to register (or sign over) title to the Suzuki in Cristina’s name at the Office of Motor Vehicles. Otherwise we certainly have to be looking at another lawsuit. It is so ordered.

Cite As: Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at ____ [page number] (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

AMERICAN SAMOA GOVERNMENT, Plaintiff v. BANK OF HAWAII, Defendant ___________________________________ High Court of American Samoa Trial Division CA No. 29-12 July 11, 2012

[1] A preliminary injunction will only issue after an inter-partes hearing duly noticed, and upon "sufficient grounds," which an applicant establishes by a preponderance of evidence. Sufficient grounds for issuing a preliminary injunction are: (1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j). [2] Although a written undertaking with sufficient sureties should issue with a preliminary injunction, one is not needed if an injunction issues on application of ASG. A.S.C.A. § 43.1309. [3] A court issuing a preliminary injunction must determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side (the applicant’s showing of great or irreparable injury). [4] The applicant’s showing of great or irreparable injury turns on a balancing of equities determination, which in turn takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest. [5] The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act. Courts generally do not issue mandatory injunctions and require a higher showing of success on the merits if one were to be given. Where a bank is shown to have improperly frozen a government’s bank account at the behest of a foreign court’s writ of execution, the heightened showing is met. However, this ruling is narrow and the court’s order should not be misconstrued as generally allowing private individuals to seek out mandatory injunctions against another private individual for the return of money—those situations normally require an action for money (legal) damages not injunctive (equitable/coercive) relief. [6] Monies are fungible and, when contained in a bank account, intangible property. Intangible property's situs normally lies where the person is domiciled. However, a bank account opened in a separate state or other jurisdiction may be subject to that separate jurisdiction's courts. [7] The courts must give full faith and credit to judgments issued by other state, territorial, or federal courts. However, the High Court must give full faith and credit to foreign judgments subject to American Samoa’s Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701, et seq.

[8] Each state and territory has its own laws of process for enforcing foreign judgments and a court in one state or territory generally cannot abridge that process by issuing writs to apply to foreign property outside that court’s territorial jurisdiction. Such writs have no legal force in a foreign jurisdiction, only the judgment. [9] The procedural posturing of the action is for a mandatory preliminary injunction against a bank (which has locations in multiple jurisdictions) for that bank’s freezing of the local government’s account containing intangible property located in American Samoa under the imprimatur of an as-of-yet unenforced, foreign judgment. The court was satisfied that the government will likely succeed at trial to reverse the bank’s freeze, by being able to prove that the nexus concerning the situs of the intangible property in dispute flourishes in American Samoa, not Hawaii, thereby favoring the issuance of a preliminary injunction against the bank. [10] If a bank is allowed to freeze the government’s general account whenever a judgment-creditor enforces a judgment in a far-flung jurisdiction possessing a branch of that bank, it could have alarming consequences on the ability of American Samoa's government to function daily—not to mention adding additional cost for defending such lawsuits. Moreover, not only is the local hospital (for which lives may very well be jeopardized) dependent on the contents of the General Fund Account, but so much of this island community relies upon the local government for their livelihood, electricity, etc. that the harm from such perfunctory BOH freezes could be dire. Although equitable relief should not normally issue for the release of legal damages, when dealing with the government bank account for government workers and services in a community utterly dependent upon the same, provisional injunctive relief can be proper. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 8 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and FA`AMAUSILI, Associate Judge. Counsel:

For Plaintiff, Michael L. Iosua, Assistant Attorney General For Defendant, Jennifer Joneson

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BACKGROUND On May 1, 2012, Marisco, Ltd. ("Marisco") obtained a judgment 1 against the American Samoa Government ("ASG") for, from what we can glean is, a breach of contract claim for the repair of certain barges. 2 The United States District Court for the District of Hawaii issued the judgment; ASG did not appeal the same. In Federal District Court, money judgments are enforced by a writ of execution. [**2**] FED. R. CIV. P. 69. Marisco sought such a writ: on June 13, 2012, the United States District Court for the District of Hawaii issued a writ of execution. Marisco, Ltd. v. Am. Samoa Gov't, Civil No. CV 10-00137 LEK BMK (writ of execution). The U.S. Marshal's office for the U.S. District Court of Hawaii served the writ upon the main offices of the Bank of Hawaii (BOH) in Honolulu, Hawaii. On June 20, 2012, BOH treated the writ of execution as a writ of garnishment under Hawaiian state law and froze a portion of ASG's General Fund Account C the account bears appropriated ASG monies and federal grant monies for government payroll and other such government expenditures. The amount frozen was $988,980. On June 26, 2012, ASG brought an action against Bank of Hawaii for provisional and permanent injunctive relief to enjoin BOH's continued withholding of its funds. On July 5, 2012, ASG's application for preliminary injunction came on for expedited hearing, the parties appearing through counsel.

1

The judgment was for $811,631.87, plus interest at the uncompounded rate of .43% per year from September 1, 2009. 2 ASG and Marisco agreed to an arbitration, where a decision issued in favor of Marisco. The same arbitration decision became a final judgment.

DISCUSSION [1, 2] In these matters, we are guided by statute. A preliminary injunction will only issue after an inter-partes hearing duly noticed, A.S.C.A. § 43.1301(g), and upon "sufficient grounds," A.S.C.A. § 43.1301(j), which an applicant establishes by a preponderance of evidence. Samoa Aviation, Inc. v. 28 A.S.R.2d 101, 102 (Trial Div. 1995). Sufficient grounds for issuing a preliminary injunction are: (1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the [**3**] applicant before a full and final trial can be fairly held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j).3 [3, 4] A court issuing a preliminary injunction must therefore determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side. The first consideration is self-explanatory, while the second, great or irreparable injury, requires a balancing of the equities. A balancing of equities determination takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest. See, Alamoana & Yu-Tong Co. v. Am. Samoa Gov't, 4 A.S.R.3d 3, 6 (App. Div. 2000) (evaluating a stay of injunction on appeal, but likening the stay's factors test to the test used in a petition for preliminary injunction); see also Talauega v. Mulipola, 22 A.S.R.2d 7, 9 (Land & Titles Div. 1992) (balancing the "equities" by noting the harm a plaintiff and defendant would suffer if an injunction did or did not issue); Gurr v. Scratch, 22 A.S.R.2d 103, 105 (Trial Div. 1992) (noting "an element of the public interest" existing in preliminary injunction determinations). Cf. Univ. of Texas v. Camenisch, 451 U.S. 390, 392 (1981). [5] We initially note both subject matter, A.S.C.A. § 3.0208(a), and in personam jurisdiction, BOH has two onisland branches. [**4**] Lastly, we note that the four factors test for a preliminary injunction favor the issuing of a preliminary injunction here.4 A. The Likelihood of Success This action presents a peculiar situation: a bank is attempting to comply with the enforcement of a foreign judgment in a foreign jurisdiction by accessing a bank account of a government located within this Court's territorial jurisdiction. We are not concerned with whether that foreign judgment was legally rendered, nor whether such a judgment could legally be enforced in this jurisdiction. We are concerned with the very limited issue of whether a bank can freeze intangible property maintained in this Territory from a foreign jurisdiction. We are persuaded that the weight of the authorities tilts in favor of ASG's contention that such a bank cannot. i. The Situs of Intangible Property [6] Monies are fungible and, when contained in a bank account, intangible property. See DAN B. DOBBS, LAW OF REMEDIES § 6.1(1) (2d [**5**] ed. 1993) (citing Williams Mgmt. Enters., Inc. v. Buonauro, 489 So.2d 160, 162

3

Although a written undertaking with sufficient sureties should issue with a preliminary injunction, one is not needed if an injunction issues on application of ASG. A.S.C.A. § 43.1309. 4 "The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act." Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (citing AbdulWali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985)). Courts generally do not issue mandatory injunctions and require a higher showing of success on the merits if one were to be given. See, id; Stanley v. Univ. of S. Cal. (9th Cir. 1994) (requiring evidence clearly favoring the moving party). We believe such a showing is met here. However, this ruling is narrow and this order should not be misconstrued as generally allowing private individuals to seek out mandatory injunctions against another private individual for the return of money—those situations normally require an action for money (legal) damages not injunctive (equitable/coercive) relief.

(Fla.App. 1986)). Intangible property's situs normally lies where the person is domiciled. 5 See Baldwin v. Missouri, 281 U.S. 586, 592-93 (1930). We note, however, that a bank account opened in a separate state or other jurisdiction may be subject to that separate jurisdiction's courts. Shaffer v. Heitner, 433 U.S. 186, 218 (1977) ("If I visit another State, or acquire real estate or open a bank account in it, I knowingly assume some risk that the State will exercise its power over my property or my person while there."). Here, the evidence indicates ASG opened its General Fund Account in American Samoa; the account is maintained with the Utulei, American Samoa branch of BOH. BOH's having other branches, such as Guam, from which ASG could withdraw funds does not necessarily subject ASG to that branch's foreign jurisdiction for judgment-creditor purposes because ASG opened its account in [**6**] American Samoa and is a government "domiciled" in American Samoa.6 [7, 8] We are required to give full faith and credit to judgments issued by other state, territorial, or federal courts. U.S. CONST. ART. IV, § 1; 28 U.S.C. § 1738 (2012). However, we must give full faith and credit to foreign judgments subject to our Uniform Enforcement of Foreign Judgments Act. See, A.S.C.A. §§ 43.1701, et seq. Indeed, if we issue a judgment in favor of a judgment-creditor, this Court cannot also issue a writ of execution ordering a sheriff of Oregon to seize and/or sell real, tangible, or intangible property of a judgment-debtor located in Oregon. To the contrary, a judgment-creditor travels to the state of Oregon and files an action to enforce our judgment against the judgment-debtor's Oregon property, abiding by Oregon's laws of process. Here, the writ of execution/garnishment the U.S. District Court of Hawaii issued attempts to attach itself to ASG's General Fund Account. As we have stated, that account appears not to be located in Hawaii and is therefore not subject to attachment there. [9] Again, we are not concerned with whether or not Marisco can enforce its U.S. District Court judgment in this jurisdiction. The procedural posturing of this action is for a mandatory [**7**] preliminary injunction against BOH for BOH's freezing of an account containing intangible property located in American Samoa under the imprimatur of an as-of-yet unenforced, foreign judgment. We are, for purposes hereof, satisfied that ASG will likely succeed at trial at proving such a point—that the nexus concerning the situs of this intangible property flourishes in American Samoa, not Hawaii, thereby favoring the issuance of ASG's preliminary injunction against BOH. B. Balancing the Equities i. Harm to Plaintiff [10] ASG is a territorial government of the United States. 7 See 48 U.S.C. 1662a (2012) ("Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect January 1, 1983, maybe made only by Act of Congress.") ASG's General Fund Account consists of appropriations and funds set aside for management of the entire government of American

5

According to Hawaiian Tax Regulations, "Income from intangible property, such as interest and dividends, is sourced at the place of the owner's domicile unless the property has acquired a business situs at another place in which event the income is sourced at that place. Intangible property has a business situs at another place, in which event the income is sourced at that place. Intangible property has a business situs in [Hawaii] if it is employed as capital in [Hawaii] or the possession and control of the property has been localized in [Hawaii]." HAW. CODE R. § 18-235-4-08(b) (Weil 2006). Though not directly on point, this Hawaiian regulation proffers a sort of general legal concept: the situs of intangible property is the owner's domicile. ASG does not maintain a business situs of its General Fund Account in Hawaii because ASG does not subject or localize the possession and control of that account in the state of Hawaii, paying taxes on the same, etc. 6 We are disquieted with the suggested treatment of post-judgment relief actions against a State or Territorial government in like manner to post-judgment relief actions against private individuals. The latter are not exactly apposite to the former. 7 Property kept in American Samoa remain outside the territorial jurisdiction of every court, save those courts presently located in American Samoa (Congress at this time has yet to establish or extend a federal judicial district incorporating this Territory). See, e.g., Pennoyer v. Neff, 95 U.S. 714, 724-25 (1878).

Samoa. Not only is the nearly one million dollars a sizeable amount for this government, the idea that judgmentcreditors can avoid this Territory's laws concerning judgment-enforcement, liens, attachments, garnishment, etc. would cause great harm to ASG and [**8**] impact the territory's local commerce.8 A.S.C.A. §§ 43.1701, et seq.; A.S.C.A. § 43.1803(b). If BOH is allowed to freeze ASG's General Fund Account whenever a judgment-creditor enforces a judgment in a far-flung jurisdiction possessing a BOH branch, it could have alarming consequences on the ability of American Samoa's government to function daily—not to mention adding additional cost for defending such lawsuits. Moreover, not only is the local hospital (for which lives may very well be jeopardized) dependent on the contents of the General Fund Account, but so much of this island community relies upon the local government for their livelihood, electricity, etc. that the harm from such perfunctory BOH freezes could be dire. [10] Although equitable relief should not normally issue for the release of legal damages, 9 when dealing with the government bank account for government workers and services in a community utterly dependent upon the same, we are persuaded that provisional injunctive relief can be, as here, proper. ii. Harm to Defendant BOH has the unenviable position of middleman in a jurisdictional tug-of-war concerning the reach of two separate courts. BOH's harm, however, is limited: an injunction would only have BOH releasing ASG's funds back into ASG's account--any [**9**] court sanction BOH could suffer in Hawaii it could quite as easily suffer here. Although BOH's plight evokes sympathy, BOH's claimed exposure to potential harm and conflicts of laws that arise is, after all, a consequence of banking in multiple jurisdictions. Indeed, the issue of intangible property and such property's situs is a legal subject a bank should be all too familiar with; BOH's actions here, perfunctorily freezing a government account, seems less than justified. iii. Public Interest As mentioned supra, many of the denizens of American Samoa rely on ASG for their livelihood. The public's interest weighs in favor of issuing an injunction against BOH. Indeed, all the equities balance in favor of issuing the injunction against BOH. ORDER Again, we are not ruling that Marisco is unable to satisfy its federal court judgment--Marisco is not a party in this action. We are ruling, at a preliminary stage, that ASG has proven by a preponderance of the evidence that BOH likely cannot freeze ASG's General Fund Account because that account contains intangible property seemingly located in this Territory and not the State of Hawaii. Consequently, ASG's application for a preliminary injunction will be granted: BOH shall restore the sum of $988,980, frozen on June 20, 2012, back into ASG's General Fund Account. It is so ordered.

8 9

Such circumvention impacts notions of sovereignty and jurisdiction. But cf. Douglas Laycock, The Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687 (1990).

Cite As: Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at ____ [page number] (Trial. Div. July 27, 2012) (order rejecting plea agreement). AMERICAN SAMOA GOVERNMENT, Plaintiff v. ANDREW PETERS aka LUAAO ANDREW FAGOTA, Defendant. ___________________________________ High Court of American Samoa Trial Division CR No. 53-12 July 27, 2012 [1] The constitutional avoidance doctrine states that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the court’s duty is to adopt the latter. [2] The constitutional avoidance doctrine would normally preclude a court from raising constitutional issues on its own. However, a court reviewing a plea agreement—i.e., to make certain that the factual basis therein will satisfy the elements of a listed crime—can sua sponte raise the constitutionality of a statutory crime whose elements are potentially violative of a person’s constitutional right to be free from unwarranted government search and seizure. [3] An axiom of statutory interpretation stemming from the constitutional avoidance doctrine: where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of the Legislature. This statutory interpretation axiom is favored in American Samoa; consequently, local courts will favor a construction of local statute in line with the U.S. and Territorial Constitutions over another construction potentially violative of either Constitution (unless the former construction is explicitly contrary to the Fono’s intent). [4] Article I, § 5 of the Revised Constitution of American Samoa tracks the Fourth Amendment of the United States Constitution which states that a person cannot be searched nor seized without a warrant based upon an officer’s probable cause sworn by oath or affirmation. However, unlike the Fourth Amendment, as applied to the states, the Territory preserves, as a constitutional right, the exclusionary rule—a judicially-made rule that withholds or suppresses evidence police obtained in violation of a criminal defendant’s constitutional rights. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 5 n.3 (Trial. Div. July 27, 2012) (order rejecting plea agreement). [5] The constitutional right against unwarranted search and seizure is subject to a series of judiciallydeveloped exceptions. One such exception concerns police officer interactions with the public. There are three different categories of police officer interactions with the public each with constitutional ramifications under the Fourth Amendment of the United States: the first category is an arrest, for which the Fourth Amendment requires that the police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment “seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 6-7 (Trial. Div. July 27, 2012) (order rejecting plea agreement). [6] The Fourth Amendment does not preclude statutorily punishing a person when he flees from officers who are attempting to effectuate a lawful arrest or a lawful investigatory stop/detention of that person. A.S.C.A. § 46.4615.

[7] A.S.C.A. § 46.4615 cannot punish members of the public for not complying with a police officer’s voluntary stop because such an interpretation of A.S.C.A. § 46.4615 would violate the U.S. and Territorial Constitutions. The constitutional avoidance doctrine supports the interpretation of voluntary stops lying outside the scope of punishment contemplated in A.S.C.A. § 46.4615 because where two interpretations of a statute where one would yield a constitutionally suspect result and the other a constitutionally tolerable result, the court will chose the constitutionally tolerable interpretations (absent clear legislative intent to the contrary). The Fono did not intend to punish members of the public who refused to participate in a voluntary police stop—such an interpretation would have absurd constitutional ramifications. [8] Courts are not allowed to participate in the plea discussion process. T.C.R.Cr.P. 11(e)(1). However, the court may review the plea to verify that Defendant is pleading guilty to a set of facts which would warrant criminal sanction (that also do not violate the U.S. or Territorial Constitutions). T.C.R.Cr.P. 11(f). [9] It is a well-settled concept in this Territory that ASG police officers may perform an investigatory stop of any person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. [10] A plea agreement for a criminal defendant pleading guilty to resisting arrest under A.S.C.A. § 46.4615 by fleeing from an officer’s investigatory stop must include (1) a factual basis indicating a stop was investigatory in nature, and (2) that the criminal defendant knew or should have known of an officer’s intent to perform an investigatory stop. If an A.S.C.A. § 46.4615 offense is included in a plea agreement and does not include such a factual basis, the court will reject the plea agreement. Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and FA’AMAUSILI, Associate Judge. Counsel:

For Plaintiff, Camille J. Phillips, Assistant Attorney General For Defendant, Leslie J. Cardin, Assistant Public Defender. ORDER REJECTING PLEA AGREEMENT

Background This court is bound to ensure that plea agreements present enough facts to warrant judgment. T.C.R.Cr.P. 11(f). The Defendant, Andrew Peters also known as Luaao Andrew Fagota, in this present criminal case stands accused of Burglary in the First Degree, a Class B Felony in violation of A.S.C.A. § 46.4030(a)(3); Stealing, a Class C Felony in violation of A.S.C.A. § 46.4103; and Resisting Arrest, a Class D Felony in violation of A.S.C.A. § 46.4615(a)(1). On June 25, 2012, Defendant was prepared to plead guilty to stealing and resisting arrest; in return, the American Samoa Government (“ASG”) was prepared to dismiss the burglary charge. However, we became concerned with the resisting arrest charge, because the plea [**2**] agreement merely recited that on May 22, 2012, the Defendant resisted arrest by fleeing from a law enforcement officer when he knew or should have known that the officer was attempting to make a lawful stop or detention of himself. Defendant did so by walking away from Officer White when Officer White made eye contact with Defendant and asked Defendant to come speak to him. Defendant admits he then ran through someone’s house, hid from and escaped the Officer. Defendant admits he did so for the purpose of preventing the officer from making that lawful stop or detention. Notice of Plea Agreement at 2. We took our T.C.R.Cr.P. 11(f) duty (to make certain pleas were factually based) one step further and noticed that A.S.C.A. § 46.4615’s language may constitutionally impinge the Defendant’s rights against unwarranted seizure. We were particularly concerned that a person who did not voluntarily respond to a police officer’s request to speak to the officer warranted criminal censure in the face of Fourth Amendment protections, embraced in this Territory’s own Constitution, REV. CONST. OF AM. SAMOA art. I, § 5, against unreasonable searches and seizure. In full contemplation of these protections, we directed counsel for briefing to explain how this Defendant’s “fleeing” from a police officer’s request in a seemingly voluntary stop did not impinge upon the Defendant’s Fourth Amendment rights. Both counsel duly supplied briefs. Of note is ASG’s brief, which advanced a fact pattern not contained within the plea agreement itself:

The situation in the case at issue involved the police officers responding to [a] call detailing a felony offense that had recently occurred, and giving a physical description of the suspect. The police, [**3**] immediately upon learning the information, went in search of the suspect. Police officers found the suspect near the area of the crime, shortly after the crime occurred, matching the physical description given—a description of Defendant Andrew PETERS, with whom officers were familiar from prior contacts. When Officer White attempted to initiated [sic] conversation with the Defendant, Defendant ran from him— ASG’s Brief at 6. For reasons contained infra, we find the submitted notice of plea agreement as pertaining to “resisting or interfering with arrest”1 is factually deficient to sustain a plea of guilt. T.C.R.Cr.P. 11(f); see also A.S.C.A. § 46.4615. DISCUSSION [1, 2] The Appellate Division’s decision in Stowers v. American Samoa Government, is one of the few local cases articulating and incorporating the constitutional avoidance doctrine in this Territory: ‘“where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.”’ 7 A.S.R.3d 16, 25 (App. Div. 2003) (internal citations omitted). This doctrine would normally preclude this Court from raising constitutional issues on its own. Id. At 26 (“constitutional issues are not to be needlessly confronted, as judicial review of legislative acts presents a grave and final act, difficult to change and in tension with a [**4**] pure democratice system.”). Although we sua sponte raised this issue2 in seeming contravention of the constitutional avoidance doctrine, we nevertheless find the idea of a criminal defendant pleading guilty to a crime whose very statutory elements are potentially violative of the Fourth Amendment and Article I, § 5, of the Revised Constitution of American Samoa important enough to warrant this constitutionally-determinative foray. [3] Notwithstanding, we glean another axiom of statutory interpretation stemming from the constitutional avoidance doctrine that shall be brought to bear here: ‘“where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of [the Legislature].”’ Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989) (quoting Edward J. DeBartolo Corp. v. Fl. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)). We find this strain of the constitutional avoidance doctrine a useful and appropriate canon of statutory interpretation; consequently, we will favor a construction of local statute in line with the U.S. and Territorial Constitutions over another construction potentially violative of either Constitution (unless the former construction is explicitly contrary to the Fono’s intent). [**5**] This order addresses our interpretation of A.S.C.A. § 46.4615 in regards to Defendant Peters, ultimately rejecting the submitted notice of plea agreement for lack of factual basis meriting the plea. T.C.R.Cr.P. 11(f). I. A.S.C.A. § 46.4615’s Constitutionality [4, 5] Article I, § 5 of this Territory’s Constitution tracks the Fourth Amendment of the United States Constitution 3 which states that a person cannot be searched nor seized without a warrant based upon an officer’s probable cause sworn by oath or affirmation; however, this rule is subject to a series of judicially-developed exceptions. To that end, we note the Seventh Circuit of the U.S. Court of Appeals’ succinct articulation of three different categories of police officer interactions with the public and the potential constraints of the Fourth Amendment on each: The first category is an arrest, for which the Fourth Amendment requires that the police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a 1

This heading for A.S.C.A. § 46.4615 is beguiling, as the statute seeks to reprimand not only civilian resistance to lawful arrests, but also civilian resistance to lawful police officer detentions or stops. 2 Neither the ASG nor the Public Defender raised the issue of A.S.C.A. § 46.4615’s constitutionality in the course of this criminal case. 3 Unlike the Fourth Amendment, as applied to the states, the Territory preserves, as a constitutional right, the exclusionary rule—a judicially-made rule that withholds or suppresses evidence police obtained in violation of a criminal defendant’s constitutional rights. See Mapp v. Ohio, 367 U.S. 643, 656 (1961); Elkins v. U.S., 364 U.S. 206, 217 (1960).

Fourth Amendment “seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the [**6**] citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. U.S. v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995) (quoting U.S. v. McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993)). We turn now to A.S.C.A. § 46.4615(a)(1), which reads, in pertinent part: A person commits the crime of...interfering with…detention [] or stop if, knowing that a law enforcement officer is…attempting to lawfully detain or stop an individual…or the person reasonably should know that a law enforcement officer is…attempting to lawfully detain or lawfully stop an individual…for the purpose of preventing the officer from effectuating the…stop or detention the person…resists the arrest[, detention or stop]4 by…fleeing from that officer…. A.S.C.A. § 46.4615(a)(1). [6, 7] A local statute cannot violate a person’s Fourth Amendment rights. Therefore, as case law concerning the Fourth Amendment now stands, A.S.C.A. § 46.4615’s prohibition against persons evading a police officer’s “arrest, detention or stop” reference the first two police interaction categories listed in Nobles (lawful arrest; lawful investigatory stop/detention). 69 F.3d at 180 (internal citations omitted). That is, the Fourth Amendment does not preclude statutorily punishing a person when he flees from officers who are attempting to effectuate a lawful arrest or [**7**] a lawful investigatory stop/detention of that person. See A.S.C.A. § 46.4615(a)-(b). We are hesitant to interpret A.S.C.A. § 46.4615 as punishing Nobles’ articulated third category of police interaction—voluntary stops—as such an interpretation would seem to violate both the Fourth Amendment and Article I, § 5, of the Revised Constitution of American Samoa. According to the Public Citizen case, where two interpretations of a statute where one would yield a constitutionally suspect result and the other a constitutionally tolerable result, the court will chose the constitutionally tolerable interpretations. 491 U.S. at 466. The Fono did not intend to punish members of the public who refused to participate in a voluntary police stop—such an interpretation would have absurd constitutional ramifications. A. A.S.C.A. § 46.4615(a)(1) as Applied to Defendant [8] Courts are not allowed to participate in the plea discussion process. T.C.R.Cr.P. 11(e)(1) (“The court shall not participate in [plea] discussions”). However, here, we are merely making certain that Defendant is pleading guilty to a set of facts which would warrant criminal sanction (that also do not violate the U.S. or Territorial Constitutions). T.C.R.Cr.P. 11(f). We have not yet made any factual determinations: according to the factual accounts in the record, when Officer White approached Defendant, Defendant was not at that time put under arrest (Defendant’s physical liberty was not restrained). However, Defendant argues what transpired between Officer White and Defendant was a voluntary stop (category three) and not an investigatory stop or [**8**] detention (category two); ASG argues the opposite. Needless to say, the constitutionality issue turns on whether Officer White was attempting to perform an investigatory stop or detention and whether Defendant knew or should have known of Officer White’s purpose. [9] It is a well-settled concept in this Territory that ASG police officers may perform an investigatory stop of any person ‘“when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.”’ Am. Samoa Gov’t v. Kava, 4 A.S.R.3d 240, 243 (Trial Div. 2000) (citing U.S. v. Place, 462 U.S. 696, 701 (1983); Michigan v. Summers, 452 U.S. 692, 699 n.7 (1981); Terry v. Ohio, 392 U.S. 1, 21 (1968)). [10] According to ASG’s brief, Officer White and/or the officers with him knew Defendant and said that Defendant matched a physical description of someone who had engaged in a recent burglary (a criminal activity). Officer White, happening upon Defendant in an area near the alleged burglary site, therefore had reasonable, articulable suspicion that Defendant had engaged in burglary. When Officer White made eye contact and requested Defendant approach Officer White, we could construe this as an investigatory stop. Defendant’s flight from Officer White could be grounds for an A.S.C.A. § 46.4615(a)(1) violation, which in this context (provided Defendant knew or 4

A.S.C.A. § 46.4615(a)(1) only uses the term “arrest” here; however, A.S.C.A. § 46.4615(b) explicitly states, “This section applies to arrest, stops or detention with or without warrants amid [sic] to arrest, stops or detention for any crime or ordinance violation.” Id. (emphasis added). Consequently, given subsections (b)’s mandate, we include the terms “stop” and “detention” alongside “arrest” in A.S.C.A. § 46.4615(a)(1).

should have known of Officer White’s intent to perform an investigatory stop) comports with the Fourth Amendment and Article I, § 5, of the Revised [**9**] Constitution of American Samoa. [10] However such facts were not alleged in the plea agreement; we therefore reject the notice of plea submitted to us on June 14, 2012. T.C.R.Cr.P. 11(f). We will, however, give each counsel leave to resume plea discussions if they so choose. We will schedule a hearing for July 30, 2012 at 9 a.m. to see the outcome of such discussions, if any. Otherwise this matter will be rescheduled for jury trial. It is so ordered.

Cite As: Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at ____ [page number] (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial). ROY J.D. HALL, JR., Plaintiff v. AMERICAN SAMOA MEDICAL CENTER, an agency of the executive branch of the American Samoa Government, Defendant ___________________________________ High Court of American Samoa Trial Division CA 49-07 August 7, 2012

[1] Motions for amended judgment or new trial require a moving party show that an error of the court affected his substantial rights, or that recently uncovered facts would change the court's ruling. [2] Procedural due process of law means the process envisioned and promised by statute. If a person is denied the process promised by statute, they may bring a constitutional claim before the Trial Division of the High Court; however, if a person files an action in the Trial Division of the High Court before complying with the process mandated by statute, the Trial Division of the High Court lacks the jurisdiction to hear the action. [3] The Fono has stated that a person aggrieved by agency action may challenge an agency's violation of the Administrative Procedures Act (“APA”). However, that person must first go to the agency and demand compliance with the APA; such a demand would normally result in a contested case hearing (or the agency's silence). Regardless, from there, the person could seek continued redress from the Administrative Law Judge ("ALJ") for review of the agency's decision(s)/silence before appealing the same to the Appellate Division of the High Court. That is the process due any member of the public who challenges the American Samoa Medical Center (“ASMC”) for ASMC's alleged improper promulgation of a rule in violation of the APA's requirements (provided the rulemaking lies within the ASMC's statutorily granted competence). [4] If the subject matter of an action regards run-of-the-mill Administrative Procedures Act administrative law and a plaintiff is in no danger of an irreparable harm, the court will not assert jurisdiction over the action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 4-5 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial). [5] Controlling case-law prohibits the Trial Division from interfering with the processes contained in the Administrative Procedures Act (“APA”) and the Administrative Law Judge Act (“ALJA”) by hearing controversies attempting to circumvent the APA and the ALJA under the guise of a declaratory relief action. [6] According to statute, the American Samoa Medical Center (“ASMC”) has the right to levy and set facility fee charges, A.S.C.A. § 13.0602(a)(1), and American Samoans are entitled to free medical attention, A.S.C.A. § 13.0602. A dispute premised on either against the ASMC is an agency matter because the charging of facility fees and the offering of medical attention are, by statute, administered by the ASMC; therefore, any dispute concerning the same should first be brought to the ASMC in a contested case hearing, subject to review by the Administrative Law Judge and the Appellate Division of the High Court, respectively. Hall v. Am. Samoa Med’l Ctr., CA No. 4907, slip op. at 5 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial). [7] It is within the Trial Division’s discretion whether to hear a declaratory relief action or not.

Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and FA`AMAUSILI, Associate Judge. Counsel:

For Plaintiff, Sharron I. Rancourt For Defendant, Sara A.H. Sayles, Assistant Attorney General

ORDER DENYING PLAINTIFF'S MOTION FOR “RECONSIDERATION” AND/OR NEW TRIAL BACKGROUND On June 1, 2007, Plaintiff Roy J.D. Hall, Jr. ("Hall") filed a declaratory relief action against Defendant American Samoa Medical Center ("ASMC"), an "independent agency" of the American Samoa Government statutorily established to operate the local government-owned and operated Lyndon Baines Johnson Tropical Medical Center 1 ("LBJ"). See American Samoa Medical Center Act, A.S.C.A. §§ 13.0101, et seq. Hall's suit questions the validity of certain facility fee increases ASMC instituted, ASMC's adoption of certain rules, and ASMC's refusal to provide medical [**2**] attention free of charge. In the course of what proved to be a drawn-out and protracted civil action (advanced only on the Court's trial calendar after two successive defense motions to dismiss for want of prosecution), the Appellate Division handed down its opinion in Am. Samoa Gov't v. Samoa Shipping Co., Ltd., AP No. 09-09 at 5-9 (App. Div. Nov. 10, 2011), concerning improper use of declaratory relief actions to bypass and subvert administrative review proceedings in the first instance, as provided by local statutes. In light of this appellate ruling, which we considered sua sponte, we ruled that Hall's "declaratory relief action" was improperly before us C that Hall should have sought relief pursuant to the Administrative Procedures Act ("APA"), A.S.C.A. §§ 4.1001, et seq., and the Administrative Law Judge Act ("ALJA") of 1998, A.S.C.A. §§ 4.0601, et seq. Consequently, we issued an order dismissing this action without prejudice on July 6, 2012. On July 13, 2012, Hall filed his "Motion for Reconsideration of Order of Dismissal." We treat this loosely-styled motion as a motion for amended judgment or new trial pursuant to T.C.R.C.P. 59; it was timely filed. The motion came on for hearing on August 7, 2012, counsel for both parties appearing. For reasons stated infra, we deny the same. DISCUSSION [1] Motions for amended judgment or new trial require a moving party show that an error of the court affected his substantial [**3**] rights, or that recently uncovered facts would change the court's ruling. See Lucky Star, Inc. v. Am. Samoa Gov't, CA 28-11, slip op. at 1-2(Trial Div. Dec. 1, 2011) (order denying motion for new trial (citing Am. Samoa Gov't v. South Pac. Island Airsystems, Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995); T.C.R.C.P. 61))). [2] Procedural due process of law means the process envisioned and promised by statute. If a person is denied the process promised by statute, they may bring a constitutional claim before the Trial Division of the High Court; however, if a person files an action in this Court before complying with the process mandated by statute, we lack the jurisdiction to hear the action. See McGuire v. Zoning Bd., 26 A.S.R.2d 59, 61 (App Div. 1994). [3] We think there may be some confusion about the process due Plaintiff in this instance. The Fono has stated that a person aggrieved by agency action may challenge an agency's violation of the APA. A.S.C.A. § 4.1007. However, that person must first go to the agency and demand compliance with the APA; such a demand would normally result in a contested case hearing (or, as was the case here, the agency's silence). A.S.C.A. §§ 4.10254.1032. Regardless, from there and pursuant to A.S.C.A. § 4.0604(h), the person could seek continued redress from the Administrative Law Judge ("ALJ") for review of the agency's decision(s)/silence before appealing the same to the Appellate Division of the High Court. A.S.C.A. §§ 4.1040-4.1044. That is the process due any member of the public who challenges the ASMC for ASMC's alleged [**4**] improper promulgation of a rule in violation of the APA's requirements (provided the rulemaking lies within the ASMC's statutorily granted competence).

1

Since the ASMC is not an entity that can sue or be sued, the action here is actually against the American Samoa Government ("ASG").

[4, 5] In this present motion, Hall is arguing that the ASMC violated his statutory rights by not passing a "rule" in accordance with the APA—a rulemaking power that lies within the ASMC's statutorily granted authority. Cf. A.S.C.A. § 13.0602(a)(1). Hall further argues that he should not be subjected to the APA review process outlined above because ASMC's violation was a clear and unambiguous violation of the APA. If that argument sounds 2 circular and ironic, well, it is. Disputes against the ASMC must go through the process described above. Some (but not all) exceptional situations need not follow that process and may come to the High Court directly. Hall claims his case is exceptional and warrants circumvention of the APA, citing to Sala v. Am. Samoa Gov't, 21 3 A.S.R.2d 50 (Trial Div. 1992) for support. However, this matter is not exceptional and does not warrant overriding the process the Fono laid out in the APA and the ALJA. The subject matter here regards run-of-the-mill APA administrative law and Hall is in no danger of an irreparable [**5**] injury which might warrant judicial intervention in this instance. Indeed, Samoa Shipping prohibits the Trial Division from interfering with the APA/ALJA processes by hearing controversies attempting to circumvent the APA and the ALJA under the guise of a declaratory relief action. AP No. 09-09 at 5-8. We found, and still find, Samoa Shipping's holding applicable, not to say binding, here and rule that Hall's declaratory relief action is merely guised as such; Hall's relief, if any, lies in the procedures of the APA and the ALJA. [6] Moreover, Hall's posturing that the ASMC has no right to charge him anything at LBJ is another attempt at 4 avoiding the APA review process. According to statute, the ASMC has the right to levy and set facility fee charges, A.S.C.A. § 13.0602(a)(1), and American Samoans are entitled to free medical attention, A.S.C.A. § 13.0602. This dispute is an agency matter as the charging of facility fees and the offering of medical attention are, by statute, administered by the ASMC; therefore, any dispute concerning the same should first be brought to the ASMC in a contested case hearing, subject to review by the ALJ and the Appellate Division of the High Court, respectively. [**6**] [7] Lastly, we remind both parties that it is within our discretion to hear declaratory relief actions; regardless of the previous analysis in this order, we would deny exercising our discretion in this present action because "under all the circumstances" we do not think the action is proper (which would result in dismissal notwithstanding our previous order of dismissal for want of subject matter jurisdiction). A.S.C.A. § 43.1102. Moreover, we cannot see any irreparable injury to Hall which would tempt or require our interference in the APA/ALJA process due him. Without error affecting Hall's substantive rights having been shown, the "Motion for Reconsideration/New Trial" is denied. It is so ordered.

2

(1) Notify and seek out redress with the ASMC; (2) have the ALJ review the ASMC's decision; (3) appeal the ALJ's decision to the Appellate Division of the High Court. 3 Sala is only a persuasive authority; that case has not been expanded outside the scope of employment disputes. Indeed, we will not expand it further. Moreover, Sala was decided before the promulgation of the ALJA; therefore, its applicability in this dispute is dubious. 4 The argument that this action is not brought under violation of the APA but rather violation of A.S.C.A. § 13.0102(12), which incorporates by reference (and therefore becomes subsumed by the process espoused in) the APA, is too tenuous a predicate for asserting jurisdiction under A.S.C.A. §§ 43.1101, et seq. These attempts at semantics cloud the nature of this action. The substance of Hall's complaint, despite his attempted form, concern and require compliance with the APA review process.

OPINIONS OF THE

APPELLATE DIVISION OF THE

HIGH COURT OF AMERICAN SAMOA (2011-2012)

Cite As: O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at ____ [page number] (App. Div. May 11, 2011). O.O. ENTERPRISES, INC., Appellant v. AJIT IMPEX, Appellee ___________________________________ High Court of American Samoa Appellate Division AP No. 01-09 May 11, 2011

[1] A trial court in a contract dispute should not unnecessarily cite to the Uniform Commercial Code (U.C.C.) when American Samoa statutes and common law can be cited to the same end. Local law and precedent should be preferred to the U.C.C. [2] The Fono has not adopted the Uniform Commercial Code (U.C.C). The Fono has promulgated its own abbreviated commercial code. A.S.C.A. §§ 27.1501, et seq. Courts are to address and decide contract cases relying exclusively on pertinent provision of American Samoa statutory law and applicable common law principles. [3] A contract for the sale of goods is enforceable with respect to goods that have been "received and accepted." Because statutory law does not offer further guidance with respect to acceptance, breach of contract, or damages, resort may be had to common law principles. [4] It is a breach of contract when a merchant promises to send one sort of good but instead sends a nonconforming good. [5] If a seller sends nonconforming goods, the buyer must either accept all or part of the goods, or reject them. [6] An acceptance of goods occurs when the buyer does any act inconsistent with the seller's ownership including retaining the goods without intimating to the seller that he has rejected them. [7] To recover damages related to nonconforming goods, the buyer must have provided the seller sufficient notice that something was awry with the product. Therefore determining the contract-breach on such an issue turns on whether the seller sent nonconforming goods and whether the buyer: (1) rejected the nonconforming goods; (2) accepted the nonconforming goods as they were; or (3) accepted the nonconforming goods and gave sufficient notice that the goods were nonconforming. [8] Rightful rejection of nonconforming goods must be specific, and a buyer must make a rejection within a reasonable time. A buyer who accepts nonconforming goods must pay the contract rate for those goods. A buyer who accepts nonconforming goods, but notifies the buyer in a timely manner that there is a problem with the goods, is not prohibited from seeking certain damages, such as consequential damages. However, if the buyer does not notify the seller of the problem, the buyer cannot later seek damages in connection with nonconforming goods. [9] If there is no record of a buyer rejecting a seller’s allegedly nonconforming goods (but rather evidence of an agreement for a modified contract through the buyer attempting to sell the nonconforming goods to other parties), the buyer is precluded from seeking out damages for the nonconforming. A buyer reacting in such a manner has accepted the nonconforming goods.

[10] A buyer is not precluded from seeking certain damages if it gave the seller adequate notice that nonconforming goods were received. But where the record cannot support any timely notice of nonconformity, relief under such a theory is unavailable. Before KRUSE, Chief Justice, WARD, Associate Justice, PATEA,* Acting Associate Justice, LOGOAI, Chief Associate Judge, and FA`ASUA, Associate Judge. Counsel:

For Appellant, Fiti A. Sunia For Appellee, Marshall L. Ashley OPINION AND ORDER BACKGROUND

Appellant O.O. Enterprises, Inc. ("O.O. Inc.") is an American Samoa corporation doing business in American Samoa. In October 2005, O.O. Inc. ordered via e-mail preserved plums from Appellee Ajit Impex ("Ajit"), a Hong Kong-based exporter with whom O.O. Inc. had been doing business for approximately 10 years. Ajit's December 9, 2005, Invoice No. 62221 to O.O. Inc. reflected the supply and shipment of, among other items, 394 cartons of sweet prunes--rather than preserved plums. Although it had ordered both sweet prunes and preserved plums before and understood the difference in the products, O.O. Inc. did not question the appearance of "sweet prunes" on the invoice. [**2**] In January 2006, the sweet prunes arrived in American Samoa. In March 2006, Izzudin Talib ("Izzudin") visited American Samoa on Ajit's behalf. During Izzudin's visit, he met with Nam Suk Ko ("Ko"), O.O. Inc.'s owner. There is nothing in the record, beyond Ko's testimony, indicating contact between O.O. Inc. and Ajit between January 2006, when O.O. Inc. received its order, and Izzudin's trip in March 2006. During the March meeting, Ajit agreed to lower the price for the sweet prunes to $2.15 per package. The price adjustment, which was signed by both parties, also provided that "payment in full must settle by end Dec. 2006." O.O. Inc. did not pay for the prunes. In May 2007, Ajit sued O.O. Inc. The Trial Division held a two-day trial on the merits, during which it heard testimony and admitted other evidence. In its October 10, 2008, Order finding for Ajit, the Trial Division cited Steffany v. Scanlan, 3 A.S.R. 465, 464 (Trial Div. 1961) for the principle that a party who accepts the benefits accruing under a contract removes any defects in the contract by implied ratification. The Trial Division also relied, in part, on provisions of the Uniform Commercial Code ("U.C.C.") in its analysis. The Trial Division found that O.O. Inc. ratified its contract with Ajit because O.O. Inc. did not reject the goods Ajit sent. The Trial Division further concluded that O.O. Inc. was barred from any recovery because there was no evidence that O.O. Inc. gave timely notice that the goods it received were nonconforming. The Trial Division then awarded Ajit judgment in [**3**] the amount of $111,546.80. DISCUSSION I. Standard of Review The Appellate Division reviews questions of law de novo, Roman Catholic Diocese of Pago Pago v. Avegalio, 20 A.S.R. 2d 70 (App. Div. Mar. 11, 1992), and findings of fact below for clear error, A.S.C.A. § 43.0801(b). A finding of fact is erroneous when "the entire record produce[s] the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts." TCW Special Credits v. K/V Kassandra Z, 7 A.S.R.3d 3, 7 (App. Div. 2003) (internal quotations omitted). II. Analysis [1] On appeal, O.O. Inc. maintains that the Trial Division erred by focusing on O.O. Inc.'s actions, rather than focusing on damages caused by Ajit when it sent nonconforming goods. Although we agree with the outcome of the case, we find that the Trial Division's reliance on Steffany and the U.C.C. is misplaced. Steffany, and precedent cited therein, deal with ratification when the execution or content of a contract is defective, rather than with the delivery

*

The Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

of nonconforming goods. Steffany is thus not on point. Further, the Trial Division's citation to the U.C.C. is unnecessary because American Samoa statutes and the common law can be cited to the same end. Kim v. Chang, AP No. 15-08, slip op. (App. Div. Aug. 18, 2009). [2] In Kim v Chang, this Court was also faced with an appeal [**4**] from a judgment of the Trial Division concerning the delivery of nonconforming goods. There, the Appellate Division first noted that whereas the Fono had not adopted the U.C.C., it had enacted A.S.C.A. § 1.0201 which adopted "the common law of England as is suitable to conditions in American Samoa." The Court went on to note that § 1.0201 has been interpreted, in Tung v. Ah Sam, 4 A.S.R. 764, 768 (Trial Div. 1971), to reference "that body of jurisprudence as applied and modified by the courts of the United States at the time the statute was adopted and as since construed." In addition, the Appellate Division further observed that American Samoa had its own, albeit abbreviated, commercial code. 1 The Court then addressed and decided the Kim appeal relying "exclusively" on pertinent provisions of American Samoa statutory law and applicable common law principles. Id. at 5. [3] We likewise do so here, and with the above principles in mind, we now consider whether O.O. Inc. accepted the sweet prunes sent by Ajit. Under A.S.C.A. § 27.1532(3), a contract for the sale of goods is enforceable with respect to goods that have been "received and accepted." Because statute law does not offer further guidance with respect to acceptance, breach of contract, or damages, resort may be had to common law principles. See Kim, AP No. 15-08 at 5. [4] "A fundamental variance between promised performance and performance made is breach of contract." C.B.T. Lumber, Inc. v. [**5**] Pacific Reliant Industries, Inc., 20 A.S.R.2d 26, 28 (Trial Div. 1991). Goods are conforming if the goods are what was promised under the contract. See id. The parties do not dispute the existence of a contract, or contest the modification of the contract whereby Ajit reduced the price for the sweet prunes. Ajit sent sweet prunes, nonconforming goods, and was in breach. [5, 6] However, it is well established that if a seller sends nonconforming goods, the buyer must either accept all or part of the goods, or reject them. See RESTATEMENT (SECOND) OF CONTRACTS §§ 69, 350 (1981). An acceptance of goods occurs when the buyer does any act inconsistent with the seller's ownership. Kim, AP No. 15-08, at 5 (citing (SECOND) OF CONTRACTS § 69(2) (1981) ("An offeree who does any act inconsistent with the offeror's ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable.")). See also Rusk Mfg. Co. v. John D. Mershon Lumber Co., 266 Mich. 99, 103 (Mich. 1934) ("The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after a lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.") [7] To recover damages related to nonconforming goods, the buyer must have provided the seller sufficient notice that something was awry with the product. See RESTATEMENT (SECOND) OF CONTRACTS § [**6**] 350 (1981). Thus, in determining whether O.O. Inc. is entitled to damages, the issue is not only whether Ajit provided nonconforming goods, but also whether O.O. Inc.: (1) rejected the nonconforming goods; (2) accepted the nonconforming goods as they were; or (3) accepted the nonconforming goods and gave sufficient notice that the goods were nonconforming. [8] Rightful rejection must be specific, and must be made within a reasonable time. See Id. A buyer who accepts nonconforming goods must pay the contract rate for those goods. Kim, AP No. 15-08, at 7. A buyer who accepts nonconforming goods, but notifies the buyer in a timely manner that there is a problem with the goods, is not prohibited from seeking certain damages, such as consequential damages. See RESTATEMENT (SECOND) OF CONTRACTS § 350 (1981). If the buyer, however, does not notify the seller of the problem, the buyer cannot later seek damages in connection with nonconforming goods. See id. [9] O.O. Inc. contends that it rejected the sweet prunes as nonconforming, but there is nothing in the record to support that contention. Rather, the record indicates there was no rejection: there is no evidence of Ko's claimed

1

See A.S.C.A. §§ 27.1501, et seq.

communication with Ajit; there is a valid contract modification that is silent as to nonconforming goods or rejection; and O.O. Inc. acted inconsistently with Ajit's ownership by undertaking to sell the prunes. At trial, Ko testified that he informed Ajit immediately that it sent the wrong product, but he could not remember the means of communication he used. Ko thought he called Izzudin. [**7**] There are, however, no corroborating memoranda on the record in the way of telephone records, emails, letters or faxes B no evidence of communication near the date of delivery, or otherwise, before the March 2006 meeting. The trial court weighed the evidence--or lack of evidence--accordingly. The March 2006, contract modification in which O.O. Inc. agreed to pay $2.15 per package for the prunes mentioned neither rejection nor nonconforming goods. In connection with the modification, Izzudin testified that during the March 2006 meeting, Ko paid for goods received in January of that year, except for the prunes because they were not selling well. Izzudin stated that Ko said he ordered too many cartons of sweet prunes, and needed more time to pay for that item. Izzudin agreed to extend the payment terms, as well as to lower the price for the prunes. A May 19, 2007, email from Ko informed Ajit that the prunes were selling slowly even at the reduced price, but, again, made no mention of nonconformity or rejection. Lastly, O.O. Inc. undertook to sell the sweet prunes, which is an act inconsistent with Ajit's ownership. The trial court's finding that O.O. Inc. accepted the sweet prunes is substantially supported. [10] A buyer is not precluded from seeking certain damages if it gave the seller adequate notice that nonconforming goods were received. See RESTATEMENT (SECOND) OF CONTRACTS § 350 (1981). Beyond Ko's testimony, there is nothing in the record to support a finding that O.O. Inc. notified Ajit of any nonconforming goods. Because [**8**] O.O. Inc. did not provide notice to Ajit, O.O. Inc. was barred from any recovery available to a buyer who accepts nonconforming goods. O.O. Inc. also argues that a buyer has the option to revoke its acceptance of nonconforming goods. This is true only in limited circumstances not present in this case, such as when the seller promised the buyer that the defective goods would be fixed, but fails in its promise. See RESTATEMENT (SECOND) OF CONTRACTS § 246 (1981). Considering the record as a whole, and according appropriate weight to the trial court's assessment of conflicting facts, there is substantial evidence to support the Trial Division's findings of fact. Further, despite its citations to Steffany and the U.C.C., the Trial Division's conclusions are supported by statute and common law. ORDER For the reasons stated above, we AFFIRM. It is so ordered.

Cite As: Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at ____ [page number] (App. Div. Nov. 10, 2011).

AMERICAN SAMOA GOVERNMENT, Appellant v. SAMOA SHIPPING COMPANY, LTD., Appellee ___________________________________ High Court of American Samoa Appellate Division AP. No. 09-09 November 10, 2011

[1] The American Samoa Government cannot be subject to a writ of garnishment--and the resultant liability of a garnishee for a third-party's judgment--without the Governor's prior written approval. A.S.C.A. § 43.1803(b). [2] Although the garnishment statute, A.S.C.A. §§ 43.1801 et seq., is silent as to whether or not ASG's funds on deposit with a third-party depository may be reached by a judgment creditor through garnishment proceedings, the weight of authority is that public property is, unless the statute otherwise allows, generally not amenable to writs of garnishment or attachment. [3] The Fono has expressly prohibited the attachment of ASG property. A.S.C.A. § 43.0901(b). [4] Pursuant to A.S.C.A. § 3.0208(c), the Appellate Division of the High Court has jurisdiction to review, on appeal, not only final decisions of the Trial and Land and Titles division of the High Court, but also, inter alia, appeals of administrative decisions as provided in A.S.C.A. §§ 4.1040-.1044, the Administrative Procedure Act (the "APA"). [5] The Appellate Division reviews questions of law de novo. [6] The Appellate Division reviews findings of fact deferentially under the "clearly erroneous" standard. A finding of fact is erroneous when "the entire record produced the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts." [7] When reviewing agency decisions, the Appellate Division may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. In reviewing the agency's interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agency’s experience, technical competence, and specialized knowledge. [8] A declaratory relief action's purpose is to declare the rights or duties of parties to a deed, will, or contract, or to quiet and calm disputes whose entire disposition rests on the respective parties' rights and duties. [9] The Trial Division has the discretionary authority to hear a declaratory action, A.S.C.A. § 43.1102, however, the Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., is a statute which neither grants nor expands subject matter jurisdiction to the Trial Division; requests for declaratory judgments may be heard only in cases that otherwise are within the lower court’s jurisdiction.

[10] The Fono did not augment the Trial Division's jurisdiction to afford it review of administrative decisions under the Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq.--that review process is otherwise provided for by statute, the Administrative Procedures Act. A.S.C.A. §§ 4.1001, et seq. Accordingly, the Trial Division must assert jurisdiction before entertaining a declaratory relief action, for without such jurisdiction the Trial Division would invade the statutorily-mandated bailiwicks of other administrative and judicial tribunals. [11] The administrative review process generally operates thusly: (1) an agency renders a final decision; (2) a petitioner affected by the decision will, if so inclined, appeal the decision to the Office of the Administrative Law Judge ("OALJ"), who then renders a judgment, A.S.C.A. § 4.0604(h); (3) if any party affected by the OALJ appeal is so inclined, he can appeal the ALJ's decision to the Appellate Division of the High Court, id., that division then looks at the record before it, giving due deference to the agency's "experience, technical competence, and specialized knowledge" in the agency's "factual inferences, and conclusions of law" before rendering final judgment. A.S.C.A. § 4.1043. However, this general framework is subject to exception wherein the Fono has specifically authorized intermediary appeals to the Trial Division in lieu of the OALJ. A.S.C.A. § 4.0604(h). [12] When the court judicially reviews an agency decision, the court must afford the agency a statutorily-mandated level of review pursuant to A.S.C.A. § 4.1043(b). The Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., does not take such a standard into account, and a court hearing an agency decision in the first instance usurps the statutorily-mandated administrative review process. [13] An A.S.C.A. § 41.0604(d) fine the Attorney General levies against a vessel or its crew for bringing unauthorized aliens into American Samoa, as a matter of law, is a final agency decision appealable first to the Office of the Administrative Law Judge and then to the Appellate Division. [14] The Trial Division did not have subject matter jurisdiction to review an agency decision under A.S.C.A. § 41.0604(d) where the violator of A.S.C.A. § 41.0604(c) instituted a civil action against the Attorney General and the American Samoa Government in opposition to a fine levied thereon. The violator must challenge an A.S.C.A. § 41.0604(d) fine in the first instance under the requirements espoused in the Administrative Procedures Act and the Office of Administrative Law Judge Act of 1998. Before KRUSE, Chief Justice, WARD, Associate Justice, PATEA,* Acting Associate Justice, FA`ASUA, Associate Judge, and SATELE, Associate Judge. Counsel:

For Appellant, Daniel Woods, Assistant Attorney General For Appellee, David P. Vargas OPINION AND ORDER

BACKGROUND Appellee Samoa Shipping Company, Limited ("Samoa Shipping"), a [Western] Samoan corporation, owns and operates the inter-island passenger and cargo vessel M/V Lady Naomi. On October 17, 2006 the Lady Naomi set sail from Samoa bound for American Samoa with 27 members of the National University of Samoa ("NUS") rugby team aboard. The NUS team was scheduled to play in an American Samoan rugby tournament; however, the players had no immigration permits to enter this territory. On October 18, 2006, the Lady Naomi arrived in Pago Pago Harbor with the unauthorized players. The rugby team, however, never left the Lady Naomi partially because of a letter which the American Samoa Attorney General [**2**] ("AG"), Sialega Malaetasi Togafau, had sent Samoa Shipping's American Samoan agent. In the letter, AG Togafau imposed a $20,000 fine against Samoa Shipping for the Lady Naomi's part in transporting unauthorized aliens to American Samoa in alleged contravention of this territory's immigration laws. The letter further demanded payment of the fine by 4:00 p.m. on October 18, 2006 lest

*

The Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

the AG arrest the Lady Naomi. Samoa Shipping's agent paid the fine, and the Lady Naomi departed American Samoa that same day. On March 3, 2007 Samoa Shipping filed an action for declaratory judgment against the American Samoa Government ("ASG") in the Trial Division of the High Court, contesting the fine. Trial commenced on November 25, 2008. Whereupon, on May 18, 2009 the Trial Division ruled in favor of Samoa Shipping, ordering the restitution of the fine, along with interest. After the Trial Division denied ASG's Motion for New Trial, in August 2009, this appeal was filed. [1-3] Nevertheless, on December 3, 2009, Samoa Shipping filed an application with the Trial Division styled "Motion for Deposit and Release of Funds," which came on for hearing, unopposed, on January 8, 2010. On January 11, 2010, the Trial Division ordered the release of garnished ASG funds (on deposit with Bank of Hawaii) to the tune of $24,002.88 and made payable to Samoa Shipping in the following manner: $20,000 in restitution of the fine paid; $3,872.88 as pre- and post-judgment interest at a rate [**3**] of 6% per annum; and $130.00 in costs.1 APPELLATE REVIEW [4] Pursuant to A.S.C.A. § 3.0208(c), the Appellate Division of the High Court has jurisdiction to review, on appeal, not only final decisions of the Trial and Land and Titles division of the High Court, but also, inter alia, appeals of administrative decisions as provided in A.S.C.A. §§ 4.1040-.1044, the Administrative Procedure Act (the "APA"). Standard of Review [5-7] With regard to appeals lying from the lower courts, the Appellate Division reviews questions of law de novo, Roman Catholic Diocese of Pago Pago v. Avegalio, 20 A.S.R. 2d 70 (App. Div. Mar. 11, 1992), while findings of fact are reviewed deferentially under the "clearly erroneous" standard, A.S.C.A. § 43.0801(b); TCW Special Credits v. K/V Kassandra Z, 7 A.S.R.3d 3, [**4**] 7 (App. Div. 2003). A finding of fact is erroneous when "the entire record produced the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts." Id. (internal quotations omitted). Similarly, with regard to appeals from final administrative agency decisions, the Fono (the Legislature) has mandated: The [appellate] court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. In reviewing the agency's interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agencies [sic] experience, technical competence, and specialized knowledge. A.S.C.A. § 4.1043(b). DISCUSSION The issues presented on appeal are as follows: (1) whether the Trial Division had jurisdiction to hear the controversy; (2) whether sovereign immunity is a waivable, affirmative defense that ASG failed to timely plead; and (3) whether the AG could fine Samoa Shipping under A.S.C.A. § 41.0604 for allowing a "landing" of unauthorized aliens on American Samoan soil.

1

It is clear that ASG cannot be subject to a writ of garnishment--and the resultant liability of a garnishee for a thirdparty's judgment--without the Governor's prior written approval. A.S.C.A. § 43.1803(b); Dev. Bank of Am. Samoa v. Mau, 25 A.S.R.2d 17, 17 (Trial Div. 1993). Although the garnishment statute, A.S.C.A. §§ 43.1801 et seq., is silent as to whether or not ASG's funds on deposit with a third-party depository may be reached by a judgment creditor through garnishment proceedings, the weight of authority is that public property is, unless the statute otherwise allows, generally not amenable to writs of garnishment or attachment. 6 AM.JUR 2D Attachment & Garnishments § 183 (1988). Indeed, the Fono has expressly prohibited the attachment of ASG property. A.S.C.A. § 43.0901(b) ("No writ of attachment may be issued against the government or any instrumentality thereof"). The net effect, however, of the garnishing of ASG's bank accounts in this matter has been tantamount to a post-judgment attachment of ASG property, in seeming derogation of legislative policy as unequivocally contained in § 43.0901(b). We accordingly note with some concern that ASG did not oppose this highly questionable garnishment and subsequent release of funds.

At the outset, we hold that the Trial Division did not have jurisdiction to hear this action (for reasons we articulate infra); consequently, we are without jurisdiction to address whether sovereign immunity is a waivable affirmative defense in this territory. Furthermore, as regards the issue concerning A.S.C.A. § 41.0604, we note that during oral arguments ASG conceded Samoa Shipping was entitled to and should keep $20,000 [**5**] of its garnishment because, as ASG now contends, the fine of $20,000 was improperly levied. Despite this newly-found magnanimity, we cannot and do not address the implications of such a concession, nor the restrictive parameters of A.S.C.A. § 41.0604 for want of jurisdiction. Subject Matter Jurisdiction [8-10] A declaratory relief action's purpose is to declare the rights or duties of parties to a deed, will, or contract, or to quiet and calm disputes whose entire disposition rests on the respective parties' rights and duties. See A.S.C.A. § 43.1101; 22A AM. JUR. 2D Declaratory Judgments §§ 7-8 (1988). The Trial Division has the discretionary authority to hear a declaratory action, A.S.C.A. § 43.1102, however, the Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., is a statute which neither grants nor expands subject matter jurisdiction to the Trial Division. See Pan Am. World Airways, Inc. v. Barnett, AP No. 21-76, slip op. at 2 (App. Div. May 13, 1977) (reviewing and applying 11 A.S.C. §§ 6671-6674 the Declaratory Relief Act now recodified as A.S.C.A. § 43.1101 et seq., and 3 A.S.C. § 2101 now recodified as A.S.C.A. §§ 4.1040-4.1041 of the APA). Indeed, "requests for declaratory judgments may be heard only in cases that otherwise are within [the lower court's] jurisdiction." 10B C. Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE § 2751, at 456 (3d. ed. 1998). The Fono enacted the Declaratory Relief Act to provide another remedy to the public; the Fono did not, as further discussed below, augment the Trial Division's jurisdiction to afford it review of administrative [**6**] decisions--that review process is otherwise provided for by statute, the APA. Accordingly, the Trial Division must assert jurisdiction before entertaining a declaratory relief action, for without such jurisdiction the Trial Division would invade the statutorily-mandated bailiwicks of other administrative and judicial tribunals. See Barnett, AP No. 21-76, at 2. [11] Indeed, here this action implicates the administrative law of this territory and the administrative process and grants of jurisdiction the Fono mandates. The administrative review process generally operates thusly: (1) an agency renders a final decision; (2) a petitioner affected by the decision will, if so inclined, appeal the decision to the Office of the Administrative Law Judge ("OALJ"), who then renders a judgment, A.S.C.A. § 4.0604(h); (3) if any party affected by the OALJ appeal is so inclined, he can appeal the ALJ's decision to the Appellate Division of the High Court, id., that division then looks at the record before it, giving due deference to the agency's "experience, technical competence, and specialized knowledge" in the agency's "factual inferences, and conclusions of law" before rendering final judgment. A.S.C.A. § 4.1043. However, this general framework is subject to exception wherein the Fono has specifically authorized intermediary appeals to the Trial Division in lieu of the OALJ; 2 for example, the Fono granted [**7**] jurisdiction to the Trial Division to review certain final decisions of the Workmen's Compensation Commission. A.S.C.A. § 32.0521(c)(3); A.S.C.A. § 32.0652(a). Another such grant exists wherein the Trial Division can review ASG's Customs, Border Protection and Excise Tax Division's decision to seize an importer's imported goods for purported customs and excise tax violations. A.S.C.A. § 27.1042(b). [12, 13] Note, however, that the general framework of the administrative review process, even with this exception, requires a level of agency deference promulgated in A.S.C.A. § 4.1043(b). In asserting original jurisdiction in the matter at bar, the Trial Division obviously did not feel constrained to accord any sort of deferential review to the AG below, opting instead for de novo treatment. However, the AG is an agency and his final decision to levy a fine against Samoa Shipping for violation of A.S.C.A. § 41.06043 requires due deference. This nuance in standards of

2

Indeed, the OALJ statute contemplates such an exception, "All appeals from administrative rulings or decisions of any administrative agency, except those matters specifically exempted herein or by statute, of a department, office, agency, commission, board or committee of the Executive branch or the American Samoa Government, shall first be made to the Office of Administrative Law Judge". A.S.C.A. § 4.0604(h) (emphasis added). 3 The authority to levy an A.S.C.A. § 41.0604(d) fine is statutorily-bestowed upon the AG's sole discretion, which he fully exercised in the case at bar. The decision to fine under the provision's contemplated context is not a power shared with the Immigration Board, nor any other agency. See A.S.C.A. § 41.0604(d). Consequently, an A.S.C.A. § 41.0604(d) fine so levied, as a matter of law, is a final agency decision appealable first to the OALJ, and then to the Appellate Division. Cf. A.S.C.A. § 4.0604(h); A.S.C.A. § 4.1040(a).

review militates against construing the Declaratory [**8**] Relief Act as extending the Trial Division's jurisdiction.4 To so hold would allow the Trial Division to usurp the statutorily-mandated administrative review process, and, as the Trial Division did, disregard the agency-deference demanded therein. [14] Beyond the Trial Division's error in deference, it also incorrectly assumed it had subject matter jurisdiction to entertain this declaratory relief action. Here, the Trial Division's reliance on A.S.C.A. § 41.0604(d) as a jurisdiction predicate is tenuous at best. To illustrate: A.S.C.A. § 41.0604(c) proscribes the owner of a vessel or his agents from inter alia transporting unauthorized aliens into American Samoa via said vessel, violation of which will result in an AG-imposed fine of up to $1,000 per offense. A.S.C.A. § 41.0604(d). If the vessel's owner or agents disregard the fine, the AG can enforce the unpaid fine by filing a lien (libel) upon the offending vessel in the High Court's Trial Division, whereupon the court can then determine the legality of the assessed fine. Id. Conversely, where the "violator" and not the AG files a case contesting an already-paid fine, as Samoa Shipping did here, the matter falls outside the Trial Division's jurisdiction because such a contest is not at all contemplated by A.S.C.A. § 41.0604(d) and cannot be read to do so in the face of the statutorily-authorized administrative review process. See [**9**] A.S.C.A. § 4.0604(h). Accordingly, we hold the Trial Division improperly asserted jurisdiction over this action under the Declaratory Relief Act and A.S.C.A. § 41.0604(d). The lower court's ruling is therefore REVERSED for lack of subject matter jurisdiction. It is so ordered.

4

Cf. A.S.C.A. § 3.0208 (a) ("The trial division of the High Court shall be a court of general jurisdiction with the power to hear any matter not otherwise provided for by statute) (emphasis added).

Cite As: Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at ____ [page number] (App. Div. March 19, 2012). METRO SAMOA, INC., Appellant v. BINACO TEXTILES, LTD., Appellee. ___________________________________ High Court of American Samoa Appellate Division AP No. 10-09 March 19, 2012

[1] The Appellate Division of the High Court reviews questions of law de novo. In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew. [2] With far more deference, the Appellate Division reviews findings of fact under the "clearly erroneous" standard. A.S.C.A. § 43.0801(b). A finding of fact is erroneous when the entire record produced the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts. [3] The language of A.S.C.A. § 28.1510 is clear and any precedent which misconstrues that statute as capable of applying the criminal usury penalty of forfeiture on a lender who has not been convicted of usury is overruled. A lender alleged to have committed the crime of usury for a specific loan will forfeit that specific loan only after the lender's criminal conviction of usury for that specific loan pursuant under A.S.C.A. § 28.1510. [4] The Fono preempted common law usury when it passed A.S.C.A. § 28.1510; therefore, common law usury as a legal concept has no application in any action within this Territory while A.S.C.A. § 28.1510 exists. [5] Canons of statutory interpretation require the judiciary assume the legislature intended to enact an effective law, that statutes be read in harmony with one another when possible, and that a statute enacted later in time is more controlling than earlier statutes. [6] Whereas in the 1973 American Samoa Code, "Commerce and Trade" provisions existed together in Title 12, in the recodified 1981 American Samoa Code Annotated (in use today), the Legislature saw fit to separate these once coexisting concepts in twain: Title 27, entitled "Commerce," and Title 28, entitled "Finance." This delineation separated the following: 12 A.S.C. § 203 was recodified as A.S.C.A. § 27.1501, and 12 A.S.C. § 201 became A.S.C.A. § 28.1501. Those two placements, in Title 27, chapter 15 ("Commercial Code"), and Title 28, chapter 15 ("Loans"), show the relation between those two chapters; both originate from the same source. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 6-7 (App. Div. March 19, 2012). [7] Where two statutory chapters are implicated in an action, the Appellate Division will effectuate both chapters in as close to a state of harmony as is possible. [8] Business loans (A.S.C.A. § 28.1503) are not subject to the writing requirement mandated by A.S.C.A. § 28.1501(a).

[9] A merchant-to-merchant open credit agreement that qualifies as a contract under A.S.C.A. §§ 27.1530-27.1532 allows the seller/lender to "charge, contract for, and receive...interest or other compensation" up to 18 percent on the open credit agreement ("business loan"/contract) pursuant to A.S.C.A. § 28.1503 (absent contract provisions or timely written notices of objection to the contrary). Before KRUSE, Chief Justice, WARD, Associate Justice, PATEA,* Acting Associate Justice, FA`AMAUSILI, Associate Judge, and SATELE, Associate Judge. Counsel:

For Appellant, Marshal L. Ashley For Appellee, Charles V. Ala`ilima OPINION & ORDER

WARD, Associate Justice; KRUSE, Chief Justice and PATEA, Associate Justice, joining. BACKGROUND Appellee Binaco Textiles, Ltd. ("Binaco") is a wholesale exporter based in Fiji. In 1997, Binaco began a workingrelationship with Appellant Metro Samoa, Inc.1 ("Metro"), supplying Metro with clothing and fabric. Binaco shipped goods to Metro "on open documents," payment due within 60 to 90 days. Sometime in June 2007, Metro stopped making payments on its open account numbers AS115 and AS139. Account number AS115 included transactions from November 2000 until February 2006 and had an outstanding principal balance of $299,109.50. Account number [**2**] AS139 had an outstanding principal balance of $42,553.91 for transactions occurring during the period of September 2003 through October 2005. An August 23, 2007 letter from Binaco's attorney advised Metro that Binaco would file suit if Metro did not make arrangements for payment. Ultimately, Binaco sued Metro for outstanding balances on account numbers AS115 and AS139, and, by the time of trial, charged Metro 12 percent interest (an interest rate commonly used between merchants in Binaco's native Fiji). Trial commenced on November 3, 2008. On February 18, 2009, the Trial Division found in favor of Binaco, finding that Binaco's shipments of goods followed by mailed invoices served to create valid contracts between the parties. Binaco Textiles, Ltd. v. Metro Samoa, Inc., CA No. 100-07 slip op. at 3 (Trial Div. Feb. 18, 2009). The Trial Division then addressed interest, referring to and citing the following four elements of common law usury: a loan or forbearance; an understanding between the parties that the principal is repayable absolutely; the exaction of a greater profit than is allowed by law; and an intention to violate the law. Id. at 4 (citing Abbot v. Stevens, 133 Cal. App. 2d 242 (2d Dist. 1955)). Without further delving into local law, the Trial Division found that the record lacked evidence of Binaco's usurious intent, noting that Binaco's invoices provided "interest charged on all overdue accounts," but did not include a usurious rate. Id. The Trial Division concluded that the "agreements were not usurious, thus debt forfeiture is not [**3**] required." Id. The Trial Division next found that Binaco did not qualify as an open-end creditor under A.S.C.A. § 28.1505, under which Binaco could have sought 12 percent interest. Instead, the Trial Division found that A.S.C.A. § 28.1501(a) (with its 6 percent interest provision) applied. Consequently, the Trial Division entered judgment in Binaco's favor in the principal amount of $341,663.41, plus pre- and post-judgment interest on the principal amount at 6 percent per year, and court costs. After the Trial Division's February 18, 2009 Order ruling in favor of Binaco, Metro filed its Motion for Reconsideration on February 27, 2009; the Trial Division denied the same on November 18, 2009. Subsequently, Metro filed its Notice of Appeal on November 27, 2009. Metro's appeal challenges the Trial Division's findings and conclusions in connection with usury. Metro's sole contention is that Binaco violated American Samoa's usury laws and must, as a result, forfeit Metro's debt.

*

The Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior. 1 Metro Samoa, Inc. is also known as Makro Samoa, Inc.

This appeal was properly before us in accordance with the requirements of A.S.C.A. § 43.0802. STANDARD OF REVIEW [1] The Appellate Division of the High Court reviews questions of law de novo. Roman Catholic Diocese of Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of [**4**] law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew. See Salve Regina College v. Russell, 499 U.S. 225, 231-32 (1991). [2] With far more deference, the Appellate Division reviews findings of fact under the "clearly erroneous" standard. A.S.C.A. § 43.0801(b). A finding of fact is erroneous when “the entire record produced the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts." TCW Special Credits v. K/V Kassandra Z, 7 A.S.R.3d 3, 7 (App. Div. 2003). (internal quotations omitted). DISCUSSION I. Usury [3, 4] The lone issue Metro raises on appeal is whether or not the lower court erred by ignoring other persuasive (not controlling) territorial case-law precedent, which previously applied the criminal usury penalty of forfeiture on a lender who had not been convicted of usury. We answer that question quickly in the negative. Previous lower courts have misconstrued A.S.C.A. § 28.15102 as capable of providing the penalty of forfeiture in [**5**] situations devoid of a usury conviction. Cf. Sundarjee Bros. Ltd. v. Metro Enterprises, CA No. 79-07, slip op. at 3-5 (Trial Div. Nov. 16, 2007) (order granting summary judgment); Shantilal Bros Ltd. v. Samoa Miscellaneous, Inc., 29 A.S.R.2d 207, 212 (Trial Div. 1996); Shantilal Bros. Ltd. v. K.M.S.T. Wholesales, Inc., 9 A.S.R.2d 62, 65 (Trial Div. 1988). The language of A.S.C.A. § 28.1510 is clear and we accordingly overrule those previous decisions summarily, soundly holding in it stead the following: a lender alleged to have committed the crime of usury for a specific loan will forfeit that specific loan only after the lender's criminal conviction of usury for that specific loan under A.S.C.A. § 28.1510. Procedurally, we also acknowledge that the lower court's ruling incorrectly relied on common law usury, which the Legislature preempted by passing A.S.C.A. § 28.1510; common law usury therefore has no application in any action within this Territory while A.S.C.A. § 28.1510 exists. Cf. A.S.C.A. § 1.0201(4) II. Business Loans This false issue of usury actually veils the real issue: whether or not Binaco's 12 percent interest rate is legal within this territory. This second issue requires us to outline the statutory history of usury and financial loans in this territory. We ultimately decide that we must remand this case to discover if Binaco's 12 percent rate should be given effect, which we hold appropriate under the auspices of A.S.C.A. § 28.1503. [**6**] [5] Canons of statutory interpretation require the judiciary assume the legislature intended to enact an effective law, Am. Samoa Gov't v. Alo, 2 A.S.R.3d 91, 92 (Trial Div. 1998), that statutes be read in harmony with one another when possible, Gov't of Am. Samoa v. Bird, 2 A.S.R. 102, 104 (Trial Div. 1940), and that a statute enacted later in time is more controlling than earlier statutes, see F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (citing U.S. v. Fausto, 484 U.S 439, 453 (1988); see also Ferstle v. American Samoa Government, 4 A.S.R.2d 160, 163 (Trial Div. 1987).

2

A.S.C.A. § 28.1510 follows in its entirety: Any person who loans money or extends credit in any manner whatsoever and takes, receives, reserves, or assesses interest, fees, or minimum charges thereon at a rate higher than that allowed by law shall upon conviction be sentenced as for a class A misdemeanor; and in addition, shall forfeit to the debtor the full amount of the debt or obligation upon which the unlawful interest, fee, or minimum was charged. Id. (emphasis added).

The Fono originally enacted P.L. 7-23 in 1962. Subsequently, the Fono reorganized P.L. 7-23, as amended, and recodified the same into the American Samoa Code, 1973 edition, placing the "Commerce and Trade" statutes concerning "Interest Rates" in its own chapter (Title 12, chapter 3) of the American Samoa Code. That chapter articulated the legal interest rate, 12 A.S.C. § 201, small loans interest rate, 12 A.S.C. § 202, limit on the sale price of goods, 12 A.S.C. § 203, and the penalty for usury, 12 A.S.C. § 204, within the borders of this Territory. All of these statutes fit harmoniously together in one encapsulated chapter. However, in 1981, the American Samoa Code Annotated, with its new numbering system came into effect. P.L. 16-83 § 3 (1980). [6] Whereas in the American Samoa Code, "Commerce and Trade" provisions existed together in Title 12, in the American Samoa Code Annotated, the Legislature saw fit to separate these once [**7**] coexisting concepts in twain: Title 27, entitled "Commerce," and Title 28, entitled "Finance." This delineation separated the following: 12 A.S.C. § 203 was recodified as A.S.C.A. § 27.1501, and 12 A.S.C. § 201 became A.S.C.A. § 28.1501. 3 Those two placements, in Title 27, chapter 15 ("Commercial Code"), and Title 28, chapter 15 ("Loans"), show the relation between those two chapters; both originate from the same source. [7] Consequently, this action implicates both Titles 27 and 28 of the American Samoa Code Annotated. Piecemeal additions to the American Samoa Code Annotated since, without any internal referencing, have further obscured that connection. See e.g. A.S.C.A. §§ 27.1530-27.1532; A.S.C.A. §§ 28.1501(c), 28.1503, 28.1505. Nevertheless, we are bound by the statutes before us and note that Title 27, chapter 15, and Title 28, chapter 15, of the American Samoan Code Annotated are interrelated. Accordingly, we must effectuate both chapters in as close to a state of harmony as is possible, especially in a situation (as here) of a merchant-to-merchant open account agreement. See Bird, 2 A.S.R. at 104. Acknowledging the association between the two chapters, we must evaluate the business contract, the basis of this action, in a manner that effectuates both chapters. Accordingly, we hold that a contract for the sale of goods worth $500.00 or more, must [**8**] be in writing, A.S.C.A. § 27.1530, or formalized as contemplated in A.S.C.A. § 27.1531 and A.S.C.A. § 27.1532. Furthermore, a business that sells goods by an open account method (as Binaco did here with Metro) can charge interest "loan" rates pursuant to A.S.C.A. § 28.1503. 4 [8] Business loan rates, like contracts, as between merchants, need not be in writing. The Fono has added to the American Samoa Code Annotated through the years; nevertheless, A.S.C.A. § 28.1501(a) has remained relatively unchanged since its inception in the 1960s: Except as provided in this title, no person may charge more than 15 percent per year as interest on a debt or obligation, and no agreement to pay a rate of interest higher than 6 percent per year shall be enforceable unless the same is in writing and is signed by the party to be charged. A.S.C.A. § 28.1501(a). In 2004, the Fono added A.S.C.A. § 28.1501(c), which maintains that Banks conducting business in American Samoa are empowered to charge, contract for, and receive interest on loans at a rate up to 24% per year, provided that (a) The principal amount of the loan is $5,000.00 or less, and (2) The principal amount of the loan and interest rate are disclosed in written agreement that is signed by the parties to be charged. Id. (emphasis added). A.S.C.A. § 28.1501(c) requires a written agreement, but clearly allows for more than the fifteen percent contemplated under A.S.C.A. § 28.1501(a), to wit, a 24 percent rate. A.S.C.A. § 28.1501(c) is clearly an exception to A.S.C.A. [**9**] § 28.1501(a) in that it exceeds the 15 percent rate, but an exception that requires an agreement signed in writing. Compare this writing requirement with A.S.C.A. § 28.1503, where the Fono authorizes businesses to "charge, contract for, and receive any rate or amount of interest or other compensation, not to exceed 18 percent annually, with respect to any loan to any business or commercial organization . . . if the loan is transacted solely for the purpose of carrying on or acquiring a business or commercial investment." Id. (emphasis added). The "written agreement that is signed" language in A.S.C.A. § 28.1501(c) is conspicuously missing from A.S.C.A. § 28.1503. We assume the Fono intentionally maintained this omission for a

3

With the exception of 12 A.S.C. § 203, P.L. 16-83 § 3 took the statutes kept in Title 12, chapter 3, of the American Samoa Code and recodified the same in Title 28, chapter 15, of the newly minted American Samoa Code Annotated. 4 Binaco's "loan" cannot implicate A.S.C.A. § 28.1505, as that statute is reserved for credit card companies.

writing requirement, at least in regard to A.S.C.A. § 28.1503. Moreover, like A.S.C.A. § 28.1501(c), the 18 percent interest rate for business loans is above the 15 percent amount called for by A.S.C.A. § 28.1501(a). Consequently, when A.S.C.A. § 28.1501(a) supplies, "Except as otherwise provided in this chapter . . .", that exception language exempts business loans (A.S.C.A. § 28.1503) from being subject to the writing requirement mandated by A.S.C.A. § 28.1501(a). [9] Essentially, a merchant-to-merchant open credit agreement that qualifies as a contract under A.S.C.A. §§ 27.1530-27.1532 allows the seller/lender to "charge, contract for, and receive...interest or other compensation" up to 18 percent on the open credit agreement ("business loan"/contract) pursuant to A.S.C.A. § 28.1503 (absent contract provisions or timely written notices [**10**] of objection to the contrary).5 With this holding in mind and acknowledging that Metro never contested that Binaco and Metro had formed an A.S.C.A. § 27.1531 contract under the open accounts of AS115 and AS139, we hold that a contract did indeed form between Metro and Binaco for those two accounts. Insofar as the lower court ruled the same, we affirm as much. Moreover, Binaco's 12 percent rate is not usurious as it is clearly within the rate prescribed by A.S.C.A. § 28.1503. We remand this case for further proceedings consistent with our holding. On remand, the lower court shall determine, as between merchants, whether the 12 percent interest rate Binaco lawfully charged (pursuant to A.S.C.A. § 28.1503) on the principal balances of accounts AS115 and AS 139 resulted in an enforceable contract for that interest rate pursuant to A.S.C.A. §§ 27.1530-27.1532 (merchant-to-merchant "agreements"). It is so ordered.

5

As the facts of this case, and trial court case-law, illustrate, these code-sections often form a trap for the unwary. See, e.g., Sundarjee Bros. Ltd., CA No. 79-07 at 3-5; Shantilal Bros. Ltd., 29 A.S.R.2d at 212. Simply revising the code-section-headings language to more clearly identify the code-section's application, (e.g., "Interest Rates for Loans to Individuals" for A.S.C.A. § 28.1501, "Business Loans and Commercial Financing" for A.S.C.A. § 28.1503, or "Credit Card Debt Interest Limits" for A.S.C.A. § 28.1505) would reduce the likelihood of their misapplication. Should the Legislature decide to revisit and revise these sections in the future, moving A.S.C.A. § 28.1510 to the "Criminal Justice" Title (Title 46) might also add more clarity.

Cite As: Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at ____ [page number] (App. Div. April 3, 2012) (order).

AMERICAN SAMOA GOVERNMENT, Appellant, v. PETER TINITALI, Appellee. ___________________________________ High Court of American Samoa Appellate Division AP No. 02-11 April 3, 2012

[1] Pursuant to A.C.R. 27, a single justice panel of the Appellate Division may, in its discretion, rule on the granting of a stay pending appeal; however, when a party challenges the Appellate Division’s subject matter jurisdiction, a full-panel of the Appellate Division must convene and hear parties’ arguments as to the Appellate Division’s subject matter jurisdiction over the appeal. Consequently, the issue of a stay must wait until subject matter jurisdiction is established by a full panel of the Appellate Division.

Before KRUSE, Chief Justice. Counsel:

For Appellant, Daniel M. Woods, Assistant Attorney General For Appellee, Roy J.D. Hall, Jr. ORDER

This appeal concerns a Department of Education ("DOE") employee, Appellee Peter Tinitali ("Tinitali"), getting ill while on a DOE-business trip to the United States. The Administrative Law Judge ("ALJ") found that the employee suffered an "injury," A.S.C.A. § 43.0502(i), while on the job, and awarded Tinitali $153,532.36; the accumulated off-island medical expenses associated with the care of Tinitali's "work-related injury" (some form of pneumonia). Appellant American Samoa Government ("ASG") takes exception with the ALJ's determination of injury, contending on appeal that the statutory definition of "injury" cannot encompass pneumonia in this instance. Pending appeal, ASG seeks to stay the ALJ's decision. Cf. A.S.C.A. § 43.0502(i) ("`Injury' means any harmful change in the human organism arising out of and in the course of employment, including damage to or loss [of] a prosthetic appliance, but does not include any communicable disease unless [**2**] the risk of contracting the disease is increased by the nature of the employment."). ASG accordingly requests a one-justice panel to determine a Motion to Stay the ALJ's Order/Judgment pending appeal. Tinitali's responsive brief does not address the merits of ASG's stay application; Tinitali has instead challenged the Appellate Division's subject matter jurisdiction to even entertain the appeal and, therefore, ASG's motion to stay the ALJ's determination. Tinitali's argument is that judicial review of workmen's compensation awards are brought at first instance by the aggrieved party before the Trial Division, not the Appellate Division, by way of injunctive proceedings pursuant to A.S.C.A. § 32.0652. [1] Because Tinitali has challenged jurisdiction, the posture of the matter before the Court goes beyond the mere procedural but to an issue that might well be dispositive of the appeal before the Appellate Division. Cf. ACR 27(c)

("except that a single justice unless otherwise provided by these rules may not dismiss or otherwise determine an appeal or other proceeding..."). That being so, the matter should be referred before a full panel of the Court. Accordingly, the Clerk is directed to place ASG's Motion To Stay for hearing before the full appellate panel at the next sitting of the Court. It is so ordered.

Cite As: Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at ____ (App. Div. Apr. 12, 2012) (order denying application for stay). AMERICAN SAMOA VETERANS ASSOCIATION, Appellant, v. AMERICAN SAMOA GOVERNMENT, Appellee. ___________________________________ High Court of American Samoa Appellate Division AP No. 08-11 April 12, 2012 [1] Pursuant to A.C.R. 8, a motion for a stay of the Trial Division’s judgment or order “...may be made to and considered by a single justice of the appellate division.” In addition, A.C.R. 27(c) empowers a single justice of the Appellate Division to entertain and grant or deny any request for relief properly sought by motion, “except that a single justice...may not dismiss or otherwise determine an appeal....” Thus, a motion for a stay can properly be heard before a single justice, as the granting of a stay does not dismiss or determine an appeal, and A.C.R. 8 specifically allows a single justice to hear and decide a motion for a stay. [2] Pending the hearing and determination of an appeal, execution of the High Court’s final judgment or order shall not be stayed unless the Appellate Division orders a stay for cause shown. A.S.C.A. §43.0803. The court’s discretion to grant a stay should be exercised only if cause is shown. A court should not automatically or casually grant a stay of judgment pending appeal. The moving party bears the burden of showing cause as to why a judgment should be stayed. [3] To show cause in a motion for stay pending appeal, a moving party has the burden to produce evidence and pinpoint which portions of the record come to bear on the court’s decision-making process in the granting of a stay. Indeed, the movant is required to “show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant.” A.C.R. 8. [4] A party moving for a motion for stay pending appeal does not meet its show-cause burden when it files only: (1) a motion that generalizes and abstains from pinpointing or citing relevant portions of the record that would assist the court in its stay-analysis; and (2) a lone, conclusory affidavit devoid of factual details. [5] The party moving for a stay pending appeal who presents a single, conclusory affidavit, without sworn statements, or portions of the record as are relevant has woefully failed in its burden to show cause. The court will not scour the record for the moving party’s benefit; it the movant’s burden to do so. [6] A motion for stay pending appeal that does not show cause at the onset as to why a stay should issue, supported by specific portions of the record and sworn statements of a non-conclusory nature, will not trigger the likelihoodof-success and balance-of-equities analysis normally undertaken when evaluating motions for stay; the court will simply deny such a deficient motion.

Before: PATEA,* Acting Associate Justice. Counsel:

For Appellant, Mark F. Ude. For Appellee, Marian M. Rapoza, Assistant Attorney General.

ORDER DENYING APPLICATION FOR STAY BACKGROUND The Trial Division issued Writs of Restitution on October 20, 2011 for certain government lands in the Tafuna area that the American Samoa Government (“ASG”) leased to the American Samoan Veterans Association (“ASVA”) sometime in the late 1970s. Appellant ASVA contends that the Writs were improperly given and filed a motion to stay the Writs in the lower court. After its denial, and ASVA’s subsequent appeal, ASVA filed another motion for stay (styled “Application by Appellant/Defendant for a Stay of the Writs of Restitution Pending Appeal”) before the Appellate Division on February 28, 2012. [**2**] [1] Pursuant to A.C.R. 8, a motion for a stay of the judgment or order of the trial division “...may be made to and considered by a single justice of the appellate division.” In addition, A.C.R. 27(c) empowers a single justice of the Appellate Division to entertain and grant or deny any request for relief properly sought by motion, “except that a single justice...may not dismiss or otherwise determine an appeal....” Thus, a motion for a stay can properly be heard before a single justice, as the granting of a stay does not dismiss or determine an appeal; and A.C.R. 8 specifically allows a single justice to hear and decide a motion for a stay. Accordingly, this matter properly came on for hearing before this single-justice panel on April 5, 2012. DISCUSSION [2, 3] “Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the Appellate...Division...orders a stay for cause shown....” A.S.C.A. §43.0803 (emphasis added). A court should not automatically or casually grant a stay of judgment pending appeal. Alamoana & Yu-Tong Co. v. Am. Samoa Gov’t, 4 A.S.R.3d 3, 6 (App. Div. 2000). The court’s discretion to grant a stay should be exercised only if cause is shown. Id. (citing A.S.C.A. §43.0803; Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990)). The moving party bears the burden of showing cause as to why a judgment should be stayed. Lutali v. Foster, 24 A.S.R.2d 81, 83 (Trial Div. 1993) (citing A.S.C.A. § [**3**] 43.0803). The definition of “show cause” is “[t]o produce a satisfactory explanation or excuse, usually in connection with a motion or application to a court.” BLACK’S LAW DICTIONARY 1413 (8th ed. 2004) (emphasis added). Therefore, to show cause, a moving party has the burden to produce evidence and pinpoint which portions of the record come to bear on this Court’s decision-making process in the granting of a stay. Indeed, the movant is required to “show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant.” A.C.R. 8. [4] ASVA’s motion for a stay was accompanied by a single affidavit: that of Lauifi Tau’ili’ili, ASVA President. The affidavit, couched for the most part in conclusory terms and lacking in factual details, asserts, inter alia, that ASVA has a “lease” that expires in 2017, that ASVA will be irreparably harmed in its fundraising activities, and that an unrelated appeal pending before the Appellate Division clouds ASG’s “title to the property.” No other sworn statements were submitted. The motion itself generalizes and refrains from pinpointing or citing portions of the record that would assist this Court in its analysis. Moreover, not a single part of the record was filed with the motion. In short, ASVA’s motion is grossly deficient. [**4**] [5] On the date of the hearing, ASVA’s counsel presented arguments – but produced no other affidavits, no other sworn statements, and absolutely no parts of the record as are relevant. ASVA had over 5 weeks from the date it

*

Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

filed its motion for stay (“Application”) on February 28, 2012 to prepare for the hearing that finally took place on April 5, 2012. The utter failure to produce non-conclusory affidavits or other sworn statements or relevant portions of the record leads to one conclusion: ASVA has woefully failed in its burden to produce evidence, to show cause. And this Court will not scour the record to cull the documents necessary to cure ASVA’s failure. ORDER [6] ASVA’s motion for a stay is grossly deficient; therefore, the motion does not trigger the likelihood-of-success and balance-of-equities analysis normally undertaken when evaluating motions for a stay. See Alamoana & YuTong Co., 4 A.S.R.3d at 6 (discussing the test on a motion for stay). Accordingly, having failed in its burden to show cause, ASVA’s “Application” for a Stay is denied. It is so ordered.

Cite As: Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at ____ [page number] (App. Div. Apr. 30, 2012).

LONGLINE SERVICES, INC., and ALGIS ALONSO ACEVEDO GONZALES, Appellants, v. RICHARD KUPFER, Appellee. ________________________________ High Court of American Samoa Appellate Division APPELLATE DIVISION AP No. 09-10 April 30, 2012 [1] A trial court’s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way. [2] A court abuses its discretion when it does not apply the correct law or rests its decision on a clearly erroneous finding of a material fact. [3] A trial court abuses its discretion when it makes an error of law. Thus, the first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, the appellate court must conclude it abused its discretion. If the trial court identified the correct legal rule, the appellate court moves to the second step of the abuse of discretion test. The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record. If any of these three apply, only then is the appellate court able to have a definite and firm conviction that the trial court reached a conclusion that was a mistake or was not among its permissible options, and thus that it abused its discretion by making a clearly erroneous finding of fact. [4] Where an undisputed certification and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, that plaintiff must serve the defendant and his government-agency employer pursuant to T.C.R.C.P. 4(d)(5). [5] It is axiomatic that a court must have power to enforce its own orders. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 10 (App. Div. Apr. 30, 2012). [6] Where an undisputed certification certifying a defendant was working in his official capacity at the time of a complained-of incident and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, failure to serve process in accordance with T.C.R.C.P. 4(d)(5) and A.S.C.A. §§ 43.0501, et seq., can be grounds for dismissing a complaint with prejudice if a court orders compliance at threat of dismissal with prejudice within 30 days and the plaintiff does not comply. It is not an abuse of discretion for a lower court in such circumstances to so hold. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 10-12 (App. Div. Apr. 30, 2012).

Before RICHMOND, Associate Justice; WARD, Associate Justice; PATEA* Acting Associate Justice; SATELE, Associate Judge; and FA’AMAUSILI, Associate Judge. Counsel: For Appellants, Mark F. Ude For Appellee, Jeanne M. Franken, Assistant United States Attorney; and Marshall Ashley OPINION AND ORDER At issue on appeal is whether the Trial Division correctly dismissed Appellants’ Amended Complaint with prejudice, for failure to effect proper and timely personal service on Appellee Richard Kupfer (“Kupfer”) and on his employer (National Oceanic and Atmospheric Administration (“NOAA”)), and whether such dismissal was an abuse of discretion. Oral arguments were held on February 23, 2012. For the reasons set forth below, we affirm the Trial Division’s order dismissing Appellants’ Amended Complaint with prejudice. [**2**] BACKGROUND The table below provides a timeline of events from which the present suit has sprung, and it describes the procedural background leading to the subsequent appeal.

Date

Event

April 3, 2009

Kupfer was employed by NOAA and assigned as the coordinator for National Marine Fisheries Service (“NMFS”) fishing observer. Appellants Longline Services, Inc., (“Longline”) and Algis Alonso Acevedo Gonzales (“Gonzales”) allege Kupfer referred to Gonzales as being “drunk,” while aboard a fishing vessel captained by Gonzales, during a U.S. Coast Guard (“USCG”) safety inspection. Appellants also allege Kupfer referred to Gonzales as being “drunk” a second time during a phone conversation with the USCG. According to Appellants, these statements resulted in the USCG docking the fishing vessel for approximately six days.

April 9, 2009

Appellants filed a Complaint against Kupfer for the alleged defamatory statements Kupfer made against Gonzales.

May 11, 2009

Kupfer filed a Motion to Dismiss for, inter alia, failure to effect proper service of process.

June 17, 2009

The Trial Division heard Kupfer’s Motion to Dismiss.

August 12, 2009

The Trial Division dismissed Count Four of the Complaint with prejudice, and issued an Order quashing service of the Complaint and ordering Appellants to “initiate proper service on Kupfer and the United States” within 30 days from the date of the Order. The Trial [**3**] Division further warned Appellants, “If proper service is not effectuated by such time, the matter will be dismissed with prejudice.”

September 2, 2009

Appellants filed, ex parte, a Motion for Service of Process by Publication, claiming that Kupfer was attempting to avoid service of process.

*

Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

September 9, 2009

The Trial Division granted Appellants’ motion for service of process by publication.

September 10, 2009

Appellants filed an Amended Complaint.

November 10, 2009

Kupfer filed a Motion to Dismiss the Amended Complaint for Insufficiency of Service of Process, Lack of Personal and Subject Matter Jurisdiction, and Failure to State a Claim.

December 21, 2009

The Trial Division heard Kupfer’s Motion to Dismiss.

January 28, 2010

The Trial Division issued an Order Dismissing the Amended Complaint With Prejudice (“Order”).

February 8, 2010

Appellants filed a Motion for Reconsideration.

May 25, 2010

The Trial Division denied Appellants’ Motion for Reconsideration.

June 2, 2010

Appellants filed a Notice of Appeal.

September 17, 2010

The Clerk of Courts filed a Notice of Filing of Record on Appeal.

February 23, 2012

The Appellate Division heard oral arguments on the matter. [**4**]

STANDARD OF REVIEW The Trial Division’s dismissal of Appellant’s Amended Complaint is based on Appellant’s failure to comply with the Trial Court Rules of Civil Procedure and the Trial Division’s orders. Such a determination involves questions of law and fact. [1] The Appellate Division reviews questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). Findings of fact, however, are reviewed deferentially under the “clearly erroneous” standard. A.S.C.A. § 43.0801(b); TCW Special Credits v. F/V Kassandra Z, 7 A.S.R.3d 3, 7 (App. Div. 2003). “A finding [of fact] is clearly erroneous when the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” TCW Special Credits, 7 A.S.R.3d at 7.1 [2, 3] A court abuses its discretion when it “does not apply the correct law or rests its decision on a clearly [**5**] erroneous finding of a material fact.” Casey v. Albertsons’, Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).2 1

Notice, however, that “a trial court’s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way.” United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009). 2 A [trial] court abuses its discretion when it makes an error of law. Thus, the first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, the appellate court must conclude it abused its discretion. If the trial court identified the correct legal rule, the appellate court moves to the second step of the abuse of discretion test. The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record. If any of these three apply, only then [is the appellate court] able to have a definite and firm

DISCUSSION There are two issues on appeal: (1) Whether Appellants properly and timely served Appellees pursuant to the Order the Trial Division issued on August 12, 2009; and (2) whether the Trial Division abused its discretion when it dismissed Appellant’s Amended Complaint with prejudice. [**6**] I. APPELLANTS DID NOT PROPERLY EFFECT SERVICE OF PROCESS On May 11, 2009, Kupfer filed his first Motion to Dismiss, contending, inter alia, that Appellants failed to effect proper service. Since the Motion to Dismiss invoked T.C.R.C.P. 12(b)(5), the burden was on Appellants to establish that their service of process was adequate. Cooper v. Conn. Pub. Defender’s Office, 480 F.Supp.2d 536, 538 n. 1 (D.C. Conn. 2007). This necessarily means a determination as to what manner of service is required under T.C.R.C.P. 4. Thus, the Trial Division correctly inquired into Kupfer’s capacity in the action filed. [4] The record below shows that at the June 17, 2009, hearing on the Motion to Dismiss, Kupfer provided a certification from Peter F. Frost, Director, Torts Branch, Civil Division, U.S. Department of Justice, that Kupfer was acting within the scope of his federal employment at the time of the incidents. The record also shows that Appellants utterly failed to present any evidence to refute such certification. The Trial Division, after considering the undisputed certification and the facts as alleged in Appellants’ Complaint, found that Kupfer’s alleged conduct may relate to his official duties, and therefore properly [**7**] required that Kupfer and his employer (NOAA) be served pursuant to T.C.R.C.P. 4(d)(5) (“Rule 4(d)(5)”).3 The Trial Division’s August 12, 2009, Order tracks the language of Rule 4(d)(5), and in no uncertain terms gave Appellants 30 days to properly serve the parties or risk a dismissal with prejudice. Upon review, there is nothing ambiguous about the Rule or the trial court’s Order. The record below contains no evidence that Kupfer was personally served within the court-ordered 30 days (or at all, for that matter). Instead, 21 days into the 30-day period, on September 2, 2009, Appellants filed an ex-parte Motion for Service of Process by Publication, claiming that Kupfer was attempting to avoid service of process. The Trial Division granted the request on September 9, 2009. A day later, which was already 29 days into the court-ordered 30-day period, Appellants filed an Amended Complaint. On November 10, 2009, Kupfer filed a Motion to Dismiss the Amended Complaint for, inter alia, insufficiency of service of process. Again, the burden was on Appellants to establish that their service of process was adequate. Cooper, 480 F.Supp.2d at 538 n. 1. At the December 21, 2009, hearing on the Motion to Dismiss, Kupfer again [**8**] provided certification from Peter F. Frost, Director, Torts Branch, Civil Division, U.S. Department of Justice, that Kupfer was acting within the scope of his federal employment at the time of the incidents.4 The record

conviction that the [trial] court reached a conclusion that was a mistake or was not among its permissible options, and thus that it abused its discretion by making a clearly erroneous finding of fact. Hinkson, 585 F.3d at 1261-62. 3 Rule 4(d)(5) provides in relevant part, “Service shall be made . . . upon an officer . . . of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer. . . .” 4 The Federal Employees Liability Reform Tort Compensation Act (“FELRTCA”) (28 U.S.C. §§ 2671-2680) immunizes federal employees from common law claims that arise in the course of their employment. FELRTCA authorizes the U.S. Attorney General and U.S. Attorneys (See 28 C.F.R. § 15.3) to certify that the defendant employee was acting in an official capacity at the time of the incident out of which the claim arose. 28 U.S.C. § 2679(d)(1). Certification is prima facie evidence that an employee was acting in the scope of his federal employment and the Attorney General’s certification is conclusive unless challenged. Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1993). The burden, therefore, was on Appellants to disprove the Attorney General’s certification by a preponderance of the evidence. See Billings, 57 F.3d at 800.

also contains an affidavit from Kupfer’s supervisor in Honolulu, Hawaii regarding, inter alia, the temporary nature of Kupfer’s assignment to American Samoa. 5 Upon reviewing the record, it is clear that Appellants offered no evidence to refute the Attorney General’s certification. Once again, Appellants failed to meet their burden to disprove the Attorney General’s certification by a preponderance of the evidence. Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1993). Thus, it was proper for the Trial Division to find that Kupfer provided prima facie evidence that he was acting in the scope of his [**9**] employment at the time of the alleged incident. See Longline Services, Inc. v. Kupfer, CA No. 26-09, slip op. at 7 n. 3 (Trial Div. Jan. 28, 2010) (Order Granting Defendant’s Motion to Dismiss). Therefore, service of process upon Kupfer and his employer had to be accomplished pursuant to Rule 4(d)(5). And once again, the record clearly reflects that Appellants utterly failed to present any evidence to show that Kupfer was served “by delivering a copy of the summons and of the (Amended) Complaint” upon Kupfer. 6 It should be noted that even after Appellants obtained leave to serve process by publication, the record below lacks any evidence from Appellants that Kupfer was served in compliance with A.S.C.A. §§ 43.0502-.0504, to wit: there was no proof of publication in a newspaper,7 no proof of posting in front of the courthouse, and no proof that [**10**] Kupfer actually received service of process by registered mail. 8, 9 Based on the record below, the Trial Division correctly ruled that service of process was not perfected, that it therefore lacked personal jurisdiction over Kupfer, and that the matter should be dismissed. II. THE TRIAL DIVISION DID NOT ABUSE ITS DISCRETION We find no merit in any of the reasons that Appellants proffer to explain how the Trial Division abused its discretion. [5, 6] It is axiomatic that a court must have power to enforce its own orders. The Trial Division gave clear direction to Appellants on how to perfect service of process. Equally unambiguous are the procedural instructions that A.S.C.A. §§ 43.0501 et seq. and T.C.R.C.P. 4 provide for effectuating service of process. The Trial Division gave Appellants ample time to properly serve Kupfer—i.e., 30 days from its August 12, 2009 Order. The Trial Division also warned Appellants of the consequences should they fail to serve Kupfer within the 30-day window. [**11**] [6] Despite all of this assistance, Appellants still failed to perform this seemingly simple task. They made no showing as to why they did not act diligently within the 30-day period to properly serve Kupfer. In addition, the record below reveals no effort whatsoever by Appellants to seek an extension(s) of time if they felt that more time was needed to perfect service of process. Indeed, Appellants had not even filed any proof of service by the time the Trial Division heard Kupfer’s Motion to Dismiss the Amended Complaint on December 21, 2009. Appellants

5

The Affidavit in effect refuted Appellants’ assertion (contained in Appellants’ ex parte application to the Trial Division for leave to serve process by publication) that Kupfer was a resident of American Samoa and was avoiding service. 6 The Trial Division specifically found Appellants to have improperly served Kupfer when they mailed the Amended Complaint to his work address. Order Granting Defendant’s Motion to Dismiss, CA No. 26-09 at 6, 7. The Trial Division explained, “A government employee, sued in his personal capacity, cannot be served by registered mail on a non-defendant employee at the defendant employee’s place of employment.” Id. (citation omitted). The Trial Division further noted that Appellants failed to even provide any evidence remotely suggesting that Kupfer received the Amended Complaint, much less, show that those who received the Amended Complaint were authorized to receive service of process. Id. We see no reason to reject these findings. 7 “A court order authorizing notice by publication should be construed as requiring that such notice be genuinely calculated to reach the defendant. . . . Thus if the defendant is believed to be in Hawaii or Western Samoa, publication should also be in that place.” Memorandum of the Justices, 3 A.S.R.2d 33 (1986). 8 A.S.C.A. § 43.0504 requires an “official return receipt signed by [Kupfer and] attached to the affidavit of service.” 9 The same proof is lacking as to service of process by registered mail upon the U.S. Attorney General.

clearly had ample time to properly serve Kupfer. Instead, Appellants insisted that service of process was satisfied simply because they had sent an envelope, bearing Kupfer’s name, to his place of work via registered mail. 10 [6] Reviewing the trial court’s determination of the facts and its application of the law thereto for abuse of discretion, we hold that the powers of the trial court to enforce the Trial Court Rules of Civil Procedure and its valid orders, were correctly applied below. We also hold that the facts in this matter as found below are not clearly erroneous. [**12**] Lastly, we hold the trial court’s application of the legal rule in this case was not illogical, implausible, nor without support in inferences that may be drawn from the record. The trial court’s decision dismissing this action was clearly within the range of its permissible options. There being no clear mistake made below as a matter of law, we hold the trial court did not abuse its discretion in dismissing this action. [**13**] ORDER For the reasons stated above, we affirm the Trial Division’s order. It is so ordered.

10

Even if Appellants had effectuated proper service, Kupfer provided prima facie evidence that he was acting in the scope of his employment at the time of the alleged incident; therefore, all claims against Kupfer in his individual capacity would be dismissed pursuant to the Suits in Admiralty Act (46 U.S.C. §§ 30901-30918) and the Federal Tort Claims Act (28 U.S.C. §§ 2671-2680).

Cite As: Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at ____ [page number] (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). PAGO PAGO YACHT CLUB, INC., Appellant, v. AMERICAN SAMOA GOVERNMENT, Appellee ___________________________________ High Court of American Samoa Appellate Division AP. No. 04-12 June 1, 2012 [1] The Trial Division’s determination as to whether PPYC’s “Motion for Reconsideration” is particularized enough to survive the threshold particularity requirement of T.C.R.C.P. 7(b)(1) is a pure question of law that the Appellate Division reviews de novo. [2] In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew. [3] “Motion for Reconsideration” is a misnomer; the Appellate Division will treat a “Motion for Reconsideration” as a T.C.R.C.P. 59 motion for new trial or amended judgment. A.S.C.A. § 43.0802(a). [4] Unlike most federal courts, this Territory makes T.C.R.C.P. 7(b)(1)’s particularity requirement a jurisdictional predicate to appellate review, to wit, if no timely motion for reconsideration or new trial conforming to the particularity requirement of Rule 7(b)(1) is filed within the statutory ten-day deadline with the lower court, then the Appellate Division has no jurisdiction to entertain an appeal in such a case–regardless of any argument, equitable or otherwise to the contrary. Quite simply, the Appellate Division lacks jurisdiction to hear an appeal if the appellant filed an unparticularized or untimely motion for new trial at the trial level. A.S.C.A. § 43.0802(a). [5] The particularity requirement of T.C.R.C.P. 7(b)(1) means “reasonable specification.’” As the phrase “reasonable specification” implies, courts consider this particularity requirement rather flexibly. However, motions for new trial must, at the very least, state the grounds for new trial or amendment of judgment; failure to do so will result in violation of Rule 7(b)(1). Essentially, a particularized motion for new trial should reasonably specify an appellant’s grounds for new trial, amendment of the lower court’s judgment, and/or appeal. [6] To eventually secure the Appellate Division’s jurisdiction, a party below must pursue Rule 59 relief in the form of a motion for new trial, submitting a motion for new trial that clearly identifies those areas of the trial court’s judgment proposed to be reopened and reheard and the grounds therefore. Relief sought in the form of an amended or altered judgment should clearly identify the trial court’s errors and be accompanied by a proposed amended judgment. A party that files a general “Motion for Reconsideration,” bereft of a fair indication of the grounds relied upon in support of the motion, does so at the party’s peril. [7] When the Appellate Division looks upon the original motion for new trial or amended judgment, and one of the grounds contained therein lacks discernible, sensible, or valid legal rhetoric, the Appellate Division is unable to entertain an appeal on the basis of that ground. Such a ground fails the particularity standard and therefore cannot unlock the Appellate Division’s jurisdiction.

[8] When the Appellate Division looks upon the original motion for new trial or amended judgment, and one of the grounds contained therein minimally articulates enough to discern a claim of lower court error, whether true or not, is enough to unlock the Appellate Division’s jurisdiction over that stated ground. Before RICHMOND, Associate Justice; WARD, Associate Justice; PATEA,* Acting Associate Justice; SU’APAIA, Associate Judge; and FA’AMAUSILI, Associate Judge. Counsel:

For Appellant, Mark F. Ude. For Appellee, Jay Sayles, Assistant Attorney General.

ORDER GRANTING IN PART AND DENYING IN PART ASG’S MOTION TO DISMISS BACKGROUND On January 12, 2012, the Trial Division issued an Opinion and Order involving the above-named parties, rendering judgment in favor of Appellee American Samoa Government (“ASG”). See Pago Pago Yacht Club v. American Samoa Gov’t, LT No. 07-10, slip op. (Trial Div., January 12, 2012). On January 23, 2012, Appellant Pago Pago Yacht Club, Inc., (“PPYC”) filed a “Motion for Reconsideration.” The one-page motion consisted of two paragraphs.1 [**2**] The Trial Division, after a hearing on the “Motion for Reconsideration,” denied PPYC’s request on the ground that PPYC failed to comply with the particularity requirement of T.C.R.C.P. 7(b)(1). See Pago Pago Yacht Club v. American Samoa Gov’t, LT No. 07-10, slip op. at 2 (Trial Div., February 21, 2012) (order denying pl.’s mot. for new trial). On March 02, 2012, PPYC filed a Notice of Appeal in the above-referenced matter. The filing of the record on appeal has yet to be noticed by the Clerk of Courts, and, therefore, the issues on appeal have yet to be briefed by the parties. On April 4, 2012, ASG filed two motions: 1) Motion to Dismiss Appeal for Lack of Subject Matter Jurisdiction, and 2) Motion to Stay Appeal Pending ASG’s Motion to Dismiss Appeal. 2 In its first motion, ASG asserts that this Court lacks jurisdiction over PPYC’s appeal. ASG contends that PPYC’s “Motion for Reconsideration” failed to comply with T.C.R.C.P. 7(b)(1)’s particularity requirement, that such failure resulted [**3**] in the Trial Division’s denial of PPYC’s motion, and that PPYC has therefore failed to comply with the requirements of A.S.C.A. § 43.0802(a), which denies this Court jurisdiction to hear this appeal. STANDARD OF REVIEW [1] The Trial Division’s determination as to whether PPYC’s “Motion for Reconsideration” is particularized enough to survive the threshold particularity requirement of T.C.R.C.P. 7(b)(1) is a pure question of law.

*

Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior. 1 Comes now the Plaintiff, by and through Counsel, and hereby files its motion for reconsideration. Basis for this motion is the error by the Court in introducing evidence after the trial without Plaintiff having benefit to address. The Court introduced evidence of a disproval [sic], without the exhibit being provided by Defendant, whose burden it fell upon to disprove the lease. Secondly, the Court had previously bifurcated this matter, and it committed clear error to deny Plaintiff damages because no evidence was forthcoming with the Court’s own order precluded the testimony of damages until the issue of the existence of a lease was first decided. Pl.’s Mot. for Reconsideration or New Trial at 1, Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, LT No. 07-10 (filed Jan. 23, 2012). 2 Our ruling infra renders ASG’s Motion to Stay Appeal moot.

[1, 2] The Appellate Division reviews questions of law de novo. Roman Catholic Diocese of Pago Pago v. Avegalio, 20 A.S.R.2d 70,73 (App. Div. 1992). “In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew.” Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 3-4 (App. Div. March 19, 2012) (internal citations omitted). DISCUSSION [3] In the instant matter, our review is limited only to a de novo determination of whether or not PPYC’s twoparagraph motion is particularized enough to unlock our jurisdiction to hear the same. We review both grounds of PPYC’s “Motion for Reconsideration” on its face. For the sake of clarity, we [**4**] consider PPYC’s “Motion for Reconsideration” a motion for new trial or amended judgment. A.S.C.A. § 43.0802(a); T.C.R.C.P. 59. For the reasons given below, we hold PPYC’s first ground unparticularized and subject to dismissal. Conversely, we hold PPYC’s second ground sufficiently particularized and within our jurisdiction to hear. [4] A.S.C.A. § 43.0802(a) mandates that “[b]efore filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.” A motion for new trial is subject to T.C.R.C.P. 7(b)(1)’s particularity requirement.3 Unlike most federal courts, we have made T.C.R.C.P. 7(b)(1)’s particularity requirement a jurisdictional predicate to appellate review, “[i]f no timely motion for reconsideration or new trial conforming to the ‘particularity’ requirement of Rule 7(b)(1) is filed within the statutory ten-day deadline, then ‘the Appellate Division...has no jurisdiction to entertain an appeal in such a case – regardless of any argument, equitable or otherwise to the contrary.’” Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. [**5**] 1990)(quoting Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 174 (1987)). Quite simply, we lack jurisdiction to hear an appeal if the appellant filed an unparticularized or untimely motion for new trial below. See id.; T.C.R.C.P. 7(b)(1). [5] The particularity requirement of T.C.R.C.P. 7(b)(1) “has been determined to mean ‘reasonable specification.’” Talano v. Northwestern Med’l Faculty Found., 273 F.3d 757, 760 (7th Cir. 2001)(citing Martinez v. Trainor, 556 F.2d 818, 819-20 (7th Cir. 1977). Indeed, as the phrase “reasonable specification” implies, courts consider this particularity requirement rather flexibly. Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 197 (2d Cir. 2006)(citing 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE – Civil § 7.03 (3d ed. 2006) (“The particularity requirement is flexible and has been interpreted liberally by the courts.”)). However, motions for new trial must, at the very least, state the grounds for suit; failure to do so will result in violation of Rule 7(b)(1). See, e.g., Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 197-98 (2d Cir. 2006)(holding skeletal motions for new trial which omit the grounds for new trial unparticularized).4 Essentially, a particularized motion for new [**6**] trial should reasonably specify an appellant’s grounds for new trial, amendment of the lower court’s judgment, and/or appeal. For judicial economy, the Appellate Division requires a particularized motion for new trial: (1) so that the lower court can identify and cure its own errors below, avoiding the cost, time, and need for an appeal; and (2) so that, provided the action is appealed, the appellate process moves in a timely manner and the grounds for appeal are 3

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. Each motion shall be accompanied by affidavits or declarations under penalty of perjury sufficient to support any material factual contentions, by an appropriate memorandum or brief which concisely states the arguments supporting the motions and cites authorities on each point, and by a copy of a proposed form of order. T.C.R.C.P. 7(b)(1). 4 (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. FED. R. CIV. PROC. 7(b)(1). T.C.R.C.P. 7(b) is slightly different from Federal Rule of Civil Procedure 7(b); however, given the mandate of A.S.C.A. § 43.0201(a), it behooves us to discern and acknowledge federal courts’ interpretation of Federal Rule of Procedure 7(b)’s particularity requirement.

stated with clarity and preserved. See A.S.C.A. § 43.0802(a); Taulaga, 17 A.S.R.2d at 35 (quoting Judicial Memorandum No. 2-87, 4 A.S.R.2d at 174)).

[6] Represented by an experienced, local attorney in constructive knowledge of this decades-old jurisdictional requirement, PPYC stated its first ground for new trial thusly, “Basis for this motion is the error by the Court in introducing evidence after the trial without Plaintiff having benefit to address.” Pl.’s Mot. for Reconsideration or New Trial at 1, Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, LT No. 07-10 (filed Jan. 23, 2012). Noticeably, PPYC does not explain what new evidence the lower court introduced, nor what precisely PPYC would now argue had it the benefit to address the allegedly new evidence. PPYC proceeds with a second sentence, “The Court introduced evidence of a disproval, without the exhibit being provided by Defendant, whose burden it fell upon to disprove the [**7**] lease.” Those two sentences compose PPYC’s entire first ground for new trial. This second sentence neither identifies the “disproval,” nor acknowledges how this “error” could affect PPYC’s substantial rights if the lower court granted a new trial. See T.C.R.C.P. 61 (discussing harmless error). This attorney-drafted motion fails to identify much of anything. 5 [7] Upon reviewing the full language of PPYC’s first ground for new trial or amended judgment, we are unable, even under the most liberal reading, to conclude that PPYC’s attorney-drafted motion reasonably specifies the alleged Trial Division error. On its face, the two sentences lack discernible, sensible, or valid legal rhetoric. ASG’s motion to dismiss is granted in part; for failing to particularize its first ground for new trial, PPYC is precluded from raising the same on appeal. [8] PPYC’s second ground, however, is particularized enough and concerns a different issue: bifurcation. PPYC argues the lower court “previously bifurcated this matter [and] committed clear error to deny Plaintiff damages [when] the [lower c]ourt’s own [**8**] order precluded the testimony of damages until the issue of the existence of a lease was first decided.” Here, we can discern PPYC’s argument: the lower court prohibited PPYC from addressing or raising damages until after the lower court had decided the underlying viability of the lease at issue; however, the lower court’s Opinion and Order concurrently ruled on the lease’s viability and denied PPYC damages of any kind, without giving PPYC an opportunity to present on the latter bifurcated issue. Whether such a lower court bifurcation order exists or will result in reversal or remand is an entirely different matter (to be briefed and determined on appeal); here, on the face of the articulated second ground, PPYC minimally articulates enough to preserve its second ground for appeal. ORDER For the reasons stated above, we grant in part and deny in part ASG’s Motion to Dismiss Appeal. Accordingly, ASG’s second motion, for a stay, is rendered moot. Moreover, the only matter to be briefed by the parties and to be heard on appeal is the Trial Division’s ruling on the bifurcation. It is so ordered.

5

T.C.R.C.P. 59 clearly provides in subsections (a)-(d) the grounds, time limits, and court practices in motions for new trials. Subsection (e) provides a separate form of relief by way of an altered or amended judgment. A.S.C.A. § 43.0802 specifically requires a timely filed motion for a new trial, and its denial by the trial court, before a timely notice of appeal may be filed. To eventually secure the Appellate Division’s jurisdiction, a party below must pursue Rule 59 relief in the form of a motion for new trial, submitting a motion for new trial that clearly identifies those areas of the trial court’s judgment proposed to be reopened and reheard and the grounds therefore. Relief sought in the form of an amended or altered judgment should clearly identify the trial court’s errors and be accompanied by a proposed amended judgment. A party that files a general “Motion for Reconsideration,” bereft of a fair indication of the grounds relied upon in support of the motion, does so at the party’s peril.

Cite As: Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at ____ [page number] (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). AMERICAN SAMOA GOVERNMENT, Appellant, v. PETER TINITALI, Appellee. ___________________________________ High Court of American Samoa Appellate Division AP No. 02-12 August 3, 2012

[1] A court cannot render a decision or judgment in an action for which the court knows it lacks subject matter jurisdiction. Generally, any such judgment or decision is a nullity (provided the issue of jurisdiction is raised). Consequently, any party or the court itself can question the court’s jurisdiction. If a court is made to know or discovers it lacks jurisdiction over a controversy at any time during the litigation process, the court must dismiss that controversy. [2] The Workmen’s Compensation Procedures and Claims chapter, A.S.C.A. §§ 32.0601-32.0674, lays out the procedure by which workmen’s compensation orders are issued, challenged, and reviewed. Within one year of an injury, a claimant must file a claim with the Workmen’s Compensation Commission (“WCC”). A.S.C.A. § 32.0627. The Commissioner of the WCC “may transfer such a case to any member of the Commission for the purpose of making investigation...or taking such other necessary action therein as may be directed, for the primary purpose of creating a record for disposition by the Administrative Law Judge in accordance with A.S.C.A. § 32.0653.” A.S.C.A. § 32.0629(a). The Commissioner or his designee may also decide to pursue settlement with the claimant, but, if after 45 days there is no settlement, the Commissioner or his designee “forward[s] the claim to the Administrative Law Judge for a decision to be made in accordance with A.S.C.A. 32.0653.” A.S.C.A. § 32.0629. The claim then comes before an Administrative Law Judge (“ALJ”), who makes a decision on the claim, issuing a workmen’s compensation order pursuant to A.S.C.A. §§ 32.0635-32.0646. The ALJ then files this workmen’s compensation order with the Office of the Commissioner. A.S.C.A. § 32.0650. The “order becomes effective when filed in the Office of the Commissioner and, unless proceedings for the suspension or setting aside of such order are instituted, becomes final at the expiration of the thirtieth day thereafter.” A.S.C.A. § 32.0651. [3] The judicial review of an Administrative Law Judge’s workmen’s compensation order is limited. However, to challenge the order, an aggrieved party must seek “injunction proceedings” with the High Court of American Samoa “against the Commissioner” to “suspend[] or set aside, in whole or in part,” the workmen’s compensation order. A.S.C.A. § 32.0652(a). The phrase “High Court” in A.S.C.A. § 32.0652(a) means the Trial Division of the High Court of American Samoa. Therefore, the judicial review of a workmen’s compensation order, issued by the ALJ, but filed with the Commissioner’s Office, requires an appeal, if any, to the Trial Division of the High Court. [4] The Appellate Division lacks the subject matter jurisdiction to review an Administrative Law Judge’s workmen’s compensation order directly. [5] Where a workmen’s compensation claim filed with the Workmen’s Compensation Commission was then sent to the Administrative Law Judge, who then issued a workmen’s compensation order, that order does not become effective until the Administrative Law Judge files the workmen’s compensation order with the Office of the Commissioner. Regardless, after the order is filed with the Office of the Commissioner, the workmen’s compensation order can be reviewed within thirty days only through injunction proceedings in the Trial Division of the High Court, whereby the compensation order may be reviewed again on a narrow basis by the Appellate Division of the High Court. The order can be become final if no one applies for injunction proceedings in the Trial Division within thirty days after the order’s filing with the Office of the Commissioner. At any rate, the Appellate

Division does not review a workmen’s compensation order that did not follow the above-outlined procedure and any such order “appealed” to the Appellate Division without following the above-outlined procedure shall be dismissed for lack of subject matter jurisdiction. Before: KRUSE, Chief Justice; RICHMOND, Associate Justice; WARD, Associate Justice; SU’APAIA, Associate Judge; FA’AMAUSILI, Associate Judge. Counsel:

For Appellant, Daniel Woods, Assistant Attorney General. For Appellee, Roy J.D. Hall, Jr.

ORDER DISMISSING APPEAL FOR LACK OF SUBJECT MATTER JURISDICTION BACKGROUND This appeal concerns a Department of Education (“DOE”) employee, Appellee Peter Tinitali (“Tinitali”), who took ill while on a DOE business trip to the United States. Tinitali filed a workmen’s compensation claim with Workmen’s Compensation Commission (“WCC”); that claim was referenced to the Administrative Law Judge (“ALJ”). The ALJ found that Tinitali suffered an “injury,” A.S.C.A. § 43.0502(i),1 while on the job, and rendered judgment in favor of Tinitali: $153,532.36, the [**2**] accumulated off-island medical expenses associated with Tinitali’s “work-related injury” (some form of pneumonia). Appellant American Samoa Government (“ASG”) is convinced that the statutory definition of “injury” cannot encompass pneumonia in this instance and sought to stay the ALJ’s decision (payment of the $153,532.36) pending appeal before a single-justice panel of the Appellate Division. Cf. A.S.C.A. § 43.0502(i). Tinitali did not file a brief concerning the stay, but instead questioned this Court’s subject matter jurisdiction, the Appellate Division’s very ability to hear this appeal. The single-justice panel decided that the issue of subject matter jurisdiction was a potentially dispositive decision and therefore inappropriate for one justice to decide. Am. Samoa Gov’t v. Tinitali, AP 02-11 slip op. at 2 (App. Div. Apr. 3, 2012) (order) (citing ACR 27(c)). Consequently, the subject matter jurisdiction issue came before the full panel on April 26, 2012; we ultimately hold that we do indeed lack the subject matter jurisdiction to decide this matter. DISCUSSION [1] A court cannot render a decision or judgment in an action for which the court knows it lacks subject matter jurisdiction. Generally, any such judgment or decision is a nullity (provided the issue of jurisdiction is raised). See RESTATEMENT (SECOND) OF JUDGMENTS §§ 11-12 (1982). Consequently, any party or the court itself can question the court’s jurisdiction. If a court is made [**3**] to know or discovers it lacks jurisdiction over a controversy at any time during the litigation process, the court must dismiss that controversy. T.C.R.C.P. 12(h)(3); see also Am. Samoa Gov’t v. Progressive Ins. Co., AP No. 10-07, slip op. at 6-8 (App. Div. Jan. 25, 2010). [2] The Workmen’s Compensation Procedures and Claims chapter, A.S.C.A. §§ 32.0601-32.0674, lays out the procedure by which workmen’s compensation orders are issued, challenged, and reviewed. Within one year of an injury, a claimant must file a claim with the WCC. A.S.C.A. § 32.0627. The Commissioner of the WCC “may transfer such a case to any member of the Commission for the purpose of making investigation...or taking such other necessary action therein as may be directed, for the primary purpose of creating a record for disposition by the Administrative Law Judge in accordance with A.S.C.A. § 32.0653.” A.S.C.A. § 32.0629(a). The Commissioner or his designee may also decide to pursue settlement with the claimant, but, if after 45 days there is no settlement, the Commissioner or his designee “forward[s] the claim to the Administrative Law Judge for a decision to be made in accordance with A.S.C.A. 32.0653.” A.S.C.A. § 32.0629. The claim then comes before the ALJ, who makes a decision on the claim, issuing a workmen’s compensation order pursuant to A.S.C.A. §§ 32.0635-32.0646. The ALJ then files this workmen’s compensation order with the Office of the Commissioner. A.S.C.A. § 32.0650. The 1

‘“Injury’ means any harmful change in the human organism arising out of and in the course of employment, including damage to or loss [of] a prosthetic appliance, but does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment.” A.S.C.A. § 43.0502(i).

“order becomes effective [**4**] when filed in the Office of the Commissioner and, unless proceedings for the suspension or setting aside of such order are instituted, becomes final at the expiration of the thirtieth day thereafter.” A.S.C.A. § 32.0651. [3] The judicial review of an ALJ’s workmen’s compensation order is limited. A.S.C.A. § 32.0652; see also Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183, 188-95 (Trial Div. 2001) (discusses judicial review process of certain WCC and ALJ decisions). However, to challenge the order, an aggrieved party must seek “injunction proceedings” with the High Court of American Samoa “against the Commissioner” to “suspend[] or set aside, in whole or in part,” the order. A.S.C.A. § 32.0652(a). The phrase “High Court” in this statute means the Trial Division of the High Court of American Samoa. See, e.g., Cont’l Ins. Co. v. Workmen's Comp. Comm’n, 15 A.S.R.2d 130 (Trial Div. 1990). Therefore, the judicial review of a workmen’s compensation order, issued by the ALJ, but filed with the Commissioner’s Office, requires an appeal, if any, to the Trial Division of the High Court pursuant to A.S.C.A. § 32.0652. Because the order bears the imprimatur of the Commissioner, filing an “injunction proceeding...against the Commissioner” is, despite Tinitali’s contrary argument, required by statute. [4] The Appellate Division lacks subject matter jurisdiction to review the ALJ’s workmen’s compensation order; as we have specified, the process the Fono articulated for workmen’s [**5**] compensation claims are “specifically exempted by...statute” from the typical APA/ALJ agency review process. A.S.C.A. § 4.0604(h); see also Samoa Shipping Co., Ltd. v. Am. Samoa Gov’t, AP No. 09-09 at 6-7 (App. Div. Nov. 10, 2011). [5] Here, proper procedure is not reflected in the record. Tinitali filed his claim with the WCC; the WCC sent that claim to the ALJ; the ALJ issued a workmen’s compensation order. However, there is nothing in the record indicating the ALJ has filed his workmen’s compensation order with the Office of the Commissioner. A.S.C.A. § 32.0650. Once the ALJ’s order is filed with the Office of the Commissioner, the order becomes effective and, after 30 days of non-activity, final. A.S.C.A. § 32.0651. However, if within 30 days of the order’s filing, a party seeks injunction proceedings in the Trial Division of the High Court, the order is not final and must undergo the limited judicial review envisioned by statute before becoming so. 2 Id. Such judicial review could potentially bring this matter before us again: as an appeal from the Trial Division’s injunction proceedings decision. Nevertheless, we hold that this appeal is improperly before us at this time. ORDER [**6**] [5] We dismiss this appeal without prejudice for the Court lacks subject matter jurisdiction to review the same. This order, of course, renders ASG’s Motion For Stay moot. It is so ordered.

2

When the Fono passed PL 10-15 in 2004 to provide the ALJ with the authority to conduct hearings on contested workmen’s compensation claims, the Fono chose not to alter either the pre-hearing or administrative duties and powers of the Commissioner or the WCC. PL 10-15, likewise, did not alter the Commissioner or the WCC’s posthearing powers and duties to enforce or modify compensation orders.

Cite As: Chand v. Fa’aoso, AP No. 08-10, slip op. at ____ [page number] (App. Div. Aug. 7, 2012). EPIFANIA CHAND, MUKESH CHAND, Appellants v. PUSA FA’AOSO, UILA FA’AOSO, Appellees ___________________________________ High Court of American Samoa Appellate Division AP No. 08-10 August 7, 2012 [1] T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.” [2] Though the appellate court typically reviews a lower court’s T.C.R.C.P. 60(b) decision under an abuse of discretion standard, when the appeal questions whether the lower court’s judgment is void pursuant to T.C.R.C.P. 60(b)(4), the appellate court will review the issue de novo. Either the judgment is legally void or the judgment is not. [3] A judgment is void only when the trial court rendering the judgment lacked the subject matter jurisdiction to render the judgment or if the parties or the court acted in a manner inconsistent with due process of law. [4] This Territory’s Due Process Clause is contained in Article I, § 2, of the Revised Constitution of American Samoa, and reads, “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.” The Fifth and Fourteenth Amendments of the United States Constitution contain similarly-worded provisions, for which the courts will turn to U.S. precedent to lend understanding to the contours of this Territory’s Constitutional Due Process Clause. [5] Procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property. [6] Article I, § 2, of the Revised Constitution of American Samoa prevents the deprivation of a person’s property without notice of the grounds and an opportunity to be heard at a meaningful time and in a meaningful manner. [7] Defendants who appear within the meaning of T.C.R.C.P. 5(a) in a civil action are entitled to actual notice of a trial date. If such a defendant did not receive actual notice of a trial date, and because of that lack of notice did not present a defense at trial, such lack of notice is a denial of that defendant’s procedural due process rights and the judgment issued below is void. Before: KRUSE, Chief Justice; WARD, Associate Justice; PATEA,* Acting Associate Justice; SU’APAIA, Associate Judge; and SATELE, Associate Judge. Counsel:

*

For Appellants, Fiti A. Sunia For Appellees, Marie Alailima.

Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

OPINION & ORDER

BACKGROUND In May of 2002, the Appellees Pusa and Uila Fa’aoso approached Appellants Epifania and Mukesh Chand to purchase the Chands’ used 2001 Toyota Tacoma. The Chands indicated the sale price to be $19,000. It remains unclear, but the Appellants now argue on appeal that the sale may have been “as is.” Regardless, the Fa’aosos put up $4,000.00 in cash and took out an ANZ bank loan for $15,000 to purchase the vehicle. On May 23, 2002, the Fa’aosos purchased the used Toyota Tacoma 1 from the Chands for $19,000. According to the Fa’aosos, by May 24, 2002, the vehicle began malfunctioning. For the next two weeks, the Fa’aosos [**2**] brought the vehicle to the Chands four times for servicing for various mechanical malfunctions. By June 11, 2002, the Fa’aosos learned from other sources that the vehicle had been damaged in a car accident while, or slightly before, the Chands owned the vehicle. Upon learning of the accident, the Fa’aosos parked the vehicle at the Chands’ store in Nu’uuli and requested reimbursement for the full $19,000 paid via a demand letter the Fa’aosos sent to the Chands on July 22, 2002; the demand letter went unanswered. The Chands never reimbursed the Fa’aosos. The Fa’aosos defaulted on their bank loan. Consequently, by October 2, 2002, ANZ Bank repossessed the vehicle and sold the same for $10,500, informing the Fa’aosos that the loan’s balance then tallied $6,219.19.2 On June 16, 2003, the Fa’aosos filed a verified complaint demanding the $19,000. On July 10, 2003, Counsel Asaua Fuimaono filed an Answer on behalf of the Chands. By doing so, the Chands appeared in the civil action.3 See T.C.R.C.P. 5(a). At a hearing, on June 23, 2005, Counsel Fuimaono first voiced his intention of withdrawing from representing the Chands; however, [**3**] Counsel Fuimaono did not formally make a withdrawal motion until March 1, 2007, citing the Chands’ uncooperativeness as grounds for his withdrawal. On April 16, 2007, at the conclusion of a hearing scheduled for the same day, the lower court granted Counsel Fuimaono’s motion to withdraw. On October 3, 2008, the Fa’aosos filed their Motion to Set Trial Date, the motion was set for hearing on November 6, 2008; however the November 6th hearing was continued to November 24, 2008 so as to effect service upon the now pro se Chands. This Motion and Notice of Hearing was served upon the Chands. On November 24, 2008, the lower court set trial for February 19, 2009, the Chands did not appear at said hearing. Epifania Chand did arrive at the courthouse on November 24, 2008, however she missed the hearing. Consequently, she asked court staff what the court decided at the hearing. A court staff member told Epifania Chand that the trial date was set for February 9, 2009 (an incorrect statement as trial was actually set for February 19, 2009). Epifania Chand did indeed report back to the High Court on February 9, 2009, where she was told by court staff that her trial was not scheduled for that date. Epifania Chand then left the courthouse without inquiring further as to when the actual trial date was set. On February 19, 2009, the Chands did not appear at trial. The Fa’aosos initially averred that the Chands had been notified of the trial date. The Fa’aosos then proceeded to present their case unhindered by the Chands’ defense. At trial, the Fa’aosos [**4**] prayed for the following relief: $14,257.74 ($4,000.00 for the cash payment, $40.00 for

1

VIN No. 5TEGN92N11Z875778. The Fa’aosos did not pay the balance on the loan; by February 2009, the interest on the loan amounted to $3,824.55. 3 The phrase appearances, in this context, ‘“include a variety of informal acts on defendant’s part which are responsive to plaintiff’s formal action in court, and which may be regarded as sufficient to give plaintiff a clear indication of defendant’s intention to contest the claim.”’ Id. at 141-42 (quoting Sun Bank of Ocala v. Pelican Homestead and Sav. Assoc. 874 F.2d 274, 276 (5th Cir. 1989) (internal quotation omitted)). ‘“[B]y appearing at any time in the action, a party becomes entitled to have his attorney notified of all subsequent proceedings and receive copies of all papers, even if he later chooses to default.”’ Id. at 141 (quoting 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1144 (2d ed. 1987)). 2

vehicle licensing, $174.00 for insuring the vehicle, and $10,043.74 for the loan’s balance and accrued interest as of February 2009); attorneys’ fees; and costs. On June 23, 2009, the lower court issued an Opinion and Order, finding that the Chands agreed to provide to the Fa’aosos a vehicle in excellent condition, but that the vehicle did not perform as promised. The lower court then went through the Fa’aosos damages estimation, and awarded judgment to the Fa’aosos for $14,257.74 plus costs and post-judgment interest at the rate of six percent per annum. The lower court denied attorneys’ fees. On June 29, 2009, the Marshals Office personally served the Opinion and Order upon the Chands. The Chands did not file a motion to reconsider by July 3, 2009 (ten days after the June 23, 2009 Opinion and Order). The Chands did, however, retain counsel sometime after the Opinion and Order issued in the summer of 2009. Indeed, by August 13, 2009, the Chands, through counsel, Fiti A. Sunia, filed a “Motion for Relief from Judgment.” In the Motion for Relief from Judgment, the Chands utilize T.C.R.C.P. 60(b) to argue that they were improperly notified of trial and did not fully represent themselves because of excusable neglect—namely that a court staff member failed to properly notify the Chands of their trial date. They further argue that the judgment was a default judgment and that adjudication upon the merits is preferred and that the judgment [**5**] was void for lack of due process (proper notice). The Motion for Relief from Judgment came on for hearing on September 3, 2009. On December 4, 2009, the lower court issued its Order Denying Motion for Relief From Judgment, ruling that the original judgment was not a default judgment, 4 that the Chands were notified of the motion-to-set-trial-date hearing in November of 2008, and that, As business persons, [the Chands] were, or should have been, fully aware of their responsibilities as pro se parties to safeguard their interests. Those responsibilities reasonably include taking the initiative to adequately inquire about the progression of their litigation. Although Epifania was told there was no trial on February 9, it is reasonable and expected that she would ask the Court staff about when the trial of the case filed against them was actually scheduled to begin. Every party to any case is responsible for maintaining a minimal level of information about the proceedings, and pro se parties must keep themselves fully informed. The Chands were notified of their attorney’s resignation and were then on their own as pro se parties. However, the Chands stood idly by without taking any defensive action, most importantly hiring another attorney to represent them, until both were served with the notice of the trial scheduling hearing. By then at the very least, each of them should have but did not become proactively involved in this case…. In short and sum, the Chands’ neglect is not excusable because a reasonable person in their situation would have sought more information to self-protect their legal interests. Fa’aoso v. Chand, CA 39-03, slip op. at 3-5 (Trial Div. Dec. 4, 2009) (order denying motion for relief from judgment). [**6**] On December 15, 2009, the Chands filed a Motion to Reconsider the December Order Denying Motion for Relief From Judgment. The same came on for hearing on January 28, 2010. On May 21, 2010, the Court maintained its ruling from December of 2009, denying the Chands’ Motion to Reconsider. On May 28, 2010, the Chands filed a Notice of Appeal. On May 31, 2012, this appeal came on for oral arguments, counsel for both parties appearing.

STANDARD OF REVIEW The Appellate Division reviews pure questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). De novo review is the least deferential standard of review, it “acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew.” Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 3-4 (App. Div. Mar. 19, 2012) (citing Salve Regina College v. Russell, 499 U.S. 225, 231-32 (1991)). DISCUSSION 4

Fa’aoso v. Chand, CA 39-03, slip op at 5-6 (Trial Div. Dec. 4, 2009) (order denying motion for relief from judgment).

Initially, we note our jurisdiction to hear this appeal under A.S.C.A. § 43.0802. Moreover, we only focus on the Appellants’ (the Chands’) due process argument under T.C.R.C.P. 60(b)(4), finding that issue dispositive. For reasons set out below, we hold that Appellants were denied their procedural due process rights and that the lower [**7**] court’s judgment is void for that reason. The Chands properly raised this argument under T.C.R.C.P. 60(b)(4). I. T.C.R.C.P. 60(b)(4) [1] T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.” [2] Though the appellate court typically reviews a lower court’s T.C.R.C.P. 60(b) decision under an abuse of discretion standard, Taulaga v. Patea, 12 A.S.R.2d 64, 65 (Land & Titles Div. 1989), when the appeal questions whether the lower court’s judgment is void pursuant to T.C.R.C.P. 60(b)(4), the appellate court will review the issue de novo. See New York Life Ins. Co. v. Brown, 84 F.3d 137,142 (5th Cir. 1996) (citations omitted). Either the judgment is legally void or the judgment is not. Id. [3] A judgment is void only when the trial court rendering the judgment lacked the subject matter jurisdiction to render the judgment or if the parties or the court ‘“acted in a manner inconsistent with due process of law.”’ Id. at 143 (quoting Williams v. New Orleans Public Serv., Inc., 728 F.2d 730, 735 (5th Cir. 1984). See Aetna Ins. Co. v. Hartshorn, 477 F.2d 97 (5th Cir. 1973); see also Nouta v. Pasene, 1 A.S.R.2d 25, 31 (App. Div. 1980). II. Procedural Due Process [4] This Territory’s Due Process Clause is contained in Article I, § 2, of the Revised Constitution of American Samoa, and [**8**] reads, “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.” The Fifth and Fourteenth Amendments of the United States Constitution contain similarly-worded provisions, for which we turn to U.S. precedent to lend understanding to the contours of this Territory’s Constitutional Due Process Clause. The Supreme Court has described procedural due process as a process, which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights. Hagar v. Reclamation District No. 108, 111 U.S. 701, 708 (1884) (emphasis added). [5] Indeed, the Supreme Court has held that procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property. Mulane v. Central Hannover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations omitted); Matthews v. Eldridge, 424 U.S. 319, 333 (1976). [**9**] [6] In point of fact, this Territory’s lower courts have acknowledged (while citing U.S. Supreme Court precedent) that Article I, § 2, of the Revised Constitution of American Samoa prevents the deprivation of a person’s property without “notice of the grounds and [an] opportunity to be heard ‘at a meaningful time and in a meaningful manner.”’ Fa’amausili v. Am. Samoa Gov’t, 6 A.S.R. 3d 259, 272 (Trial Div. 2002) (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). See also Suluai v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 216, 219 (Trial Div. 2002); Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citations omitted). [7] Here, Appellants were not afforded their procedural due process rights below. Appellants appeared within the meaning of T.C.R.C.P. 5(a) and, under those circumstances, were entitled to actual notice of the trial date. The Appellants did not receive actual notice of the trial date and were prevented from being heard. The lack of notice and an opportunity to be heard constitutes a lack of procedural due process and voids the judgment issued below; the trial court was in error to issue a final judgment under such circumstances.

We therefore REVERSE the trial court’s decision on the Chands’ T.C.R.C.P. 60(b)(4) motion and REMAND this action for a trial on the merits with actual notice provided to both parties. It is so ordered.

INDEX ADMINISTRATIVE LAW § 4—Powers & Proceedings of Administrative Agencies, Officers & Agents § 4(1) – General Provisions The administrative review process generally operates thusly: (1) an agency renders a final decision; (2) a petitioner affected by the decision will, if so inclined, appeal the decision to the Office of the Administrative Law Judge ("OALJ"), who then renders a judgment, A.S.C.A. § 4.0604(h); (3) if any party affected by the OALJ appeal is so inclined, he can appeal the ALJ's decision to the Appellate Division of the High Court, id., that division then looks at the record before it, giving due deference to the agency's "experience, technical competence, and specialized knowledge" in the agency's "factual inferences, and conclusions of law" before rendering final judgment. A.S.C.A. § 4.1043. However, this general framework is subject to exception wherein the Fono has specifically authorized intermediary appeals to the Trial Division in lieu of the OALJ. A.S.C.A. § 4.0604(h); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 6 (App. Div. Nov. 10, 2011). An A.S.C.A. § 41.0604(d) fine the Attorney General levies against a vessel or its crew for bringing unauthorized aliens into American Samoa, as a matter of law, is a final agency decision appealable first to the Office of the Administrative Law Judge and then to the Appellate Division. Cf. A.S.C.A. § 4.0604(h); A.S.C.A. § 4.1040(a); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 7 n.3 (App. Div. Nov. 10, 2011).

§ 4(2) – Due Process The Supreme Court has repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense. A government official whose action “shocks the conscience” violates substantive due process. Thus, in a due process challenge to executive action, the threshold question is whether behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Government officials who use force with the intent to harm an individual is an action that may be deemed shocking. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 30 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property. Chand v. Fa’aoso, AP No. 08-10, slip op. at 8 (App. Div. Aug. 7, 2012). Procedural due process of law means the process envisioned and promised by statute. If a person is denied the process promised by statute, they may bring a constitutional claim before the Trial Division of the High Court; however, if a person files an action in the Trial Division of the High Court before complying with the process mandated by statute, the Trial Division of the High Court lacks the jurisdiction to hear the action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 3 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

§ 4(5) – Hearings and Adjudications It is the Immigration Board’s responsibility to determine whether an alien is deportable. Such determinations are made at a hearing, wherein, the alien facing deportation is entitled to be present. A.S.C.A. § 41.0605. Consequently, ASG is obligated to provide the alien, whose immigration status is at issue at the deportation hearing, with reasonable notice of the hearing, including the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1). A deportation proceeding is not required if the alien, “admits [to] being deportable because he has remained beyond the time allowed [and] voluntarily departs from American Samoa at his own expense.” A.S.C.A. § 41.0601. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 24, 25 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). According to statute, the American Samoa Medical Center (“ASMC”) has the right to levy and set facility fee charges, A.S.C.A. § 13.0602(a)(1), and American Samoans are entitled to free medical attention, A.S.C.A. § 13.0602. A dispute premised on either against the ASMC is an agency matter because the charging of facility fees and the offering of medical attention are, by statute, administered by the ASMC; therefore, any dispute concerning

the same should first be brought to the ASMC in a contested case hearing, subject to review by the Administrative Law Judge and the Appellate Division of the High Court, respectively. Hall v. Am. Samoa Med’l Ctr., CA No. 4907, slip op. at 5 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial). The Fono has stated that a person aggrieved by agency action may challenge an agency's violation of the Administrative Procedures Act (“APA”). However, that person must first go to the agency and demand compliance with the APA; such a demand would normally result in a contested case hearing (or the agency's silence). Regardless, from there, the person could seek continued redress from the Administrative Law Judge ("ALJ") for review of the agency's decision(s)/silence before appealing the same to the Appellate Division of the High Court. That is the process due any member of the public who challenges the American Samoa Medical Center (“ASMC”) for ASMC's alleged improper promulgation of a rule in violation of the APA's requirements (provided the rulemaking lies within the ASMC's statutorily granted competence). Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 3-4 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

§ 5—Judicial Review of Administrative Decisions § 5(1) – Finality and Exhaustion The Fono did not augment the Trial Division's jurisdiction to afford it review of administrative decisions under the Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq.--that review process is otherwise provided for by statute, the Administrative Procedures Act. A.S.C.A. §§ 4.1001, et seq. Accordingly, the Trial Division must assert jurisdiction before entertaining a declaratory relief action, for without such jurisdiction the Trial Division would invade the statutorily-mandated bailiwicks of other administrative and judicial tribunals. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 5-6 (App. Div. Nov. 10, 2011). If the Attorney General’s Office does not respond to an administrative claim letter within three months, the court will treat that silence as a rejection of the administrative claim letter and deem that the plaintiff has exhausted his administrative remedies, which will in turn grant the court subject matter jurisdiction over a claim brought under the Government Tort Liability Act. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 10-11 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). Once a court renders a sentence in a criminal case, for which no appeal is taken, that criminal case ends. The criminal is then subject to the jurisdictional purview of the executive branch’s Corrections Division. A.S.C.A. § 46.2303. Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 1-2 (Trial Div. July 10, 2012) (order dismissing motion). If the substance of a plaintiff’s claims hinges on whether the government wrongfully terminated the plaintiff’s employment, a decision the Office of the Administrative Law Judge (“OALJ”) renders, the form of plaintiff’s complaint as one lying in tort under the Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq., will not stand. The proper venue for such a dispute lies with the OALJ. Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 4-5 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). If the subject matter of an action regards run-of-the-mill Administrative Procedures Act administrative law and a plaintiff is in no danger of an irreparable harm, the court will not assert jurisdiction over the action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 4-5 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

§ 5(2) – Procedure The administrative review process generally operates thusly: (1) an agency renders a final decision; (2) a petitioner affected by the decision will, if so inclined, appeal the decision to the Office of the Administrative Law Judge ("OALJ"), who then renders a judgment, A.S.C.A. § 4.0604(h); (3) if any party affected by the OALJ appeal is so inclined, he can appeal the ALJ's decision to the Appellate Division of the High Court, id., that division then looks at the record before it, giving due deference to the agency's "experience, technical competence, and specialized knowledge" in the agency's "factual inferences, and conclusions of law" before rendering final judgment. A.S.C.A. § 4.1043. However, this general framework is subject to exception wherein the Fono has specifically authorized intermediary appeals to the Trial Division in lieu of the OALJ. A.S.C.A. § 4.0604(h); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 6 (App. Div. Nov. 10, 2011).

An A.S.C.A. § 41.0604(d) fine the Attorney General levies against a vessel or its crew for bringing unauthorized aliens into American Samoa, as a matter of law, is a final agency decision appealable first to the Office of the Administrative Law Judge and then to the Appellate Division. Cf. A.S.C.A. § 4.0604(h); A.S.C.A. § 4.1040(a); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 7 n.3 (App. Div. Nov. 10, 2011). An A.S.C.A. § 41.0604(d) fine the Attorney General levies against a vessel or its crew for bringing unauthorized aliens into American Samoa, as a matter of law, is a final agency decision appealable first to the Office of the Administrative Law Judge and then to the Appellate Division. Cf. A.S.C.A. § 4.0604(h); A.S.C.A. § 4.1040(a); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 7 n.3 (App. Div. Nov. 10, 2011). The Trial Division did not have subject matter jurisdiction to review an agency decision under A.S.C.A. § 41.0604(d) where the violator of A.S.C.A. § 41.0604(c) instituted a civil action against the Attorney General and the American Samoa Government in opposition to a fine levied thereon. The violator must challenge an A.S.C.A. § 41.0604(d) fine in the first instance under the requirements espoused in the Administrative Procedures Act and the Office of Administrative Law Judge Act of 1998. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 8-9 (App. Div. Nov. 10, 2011). Any claim premised on the American Samoa Government’s failure to renew a professional license are matters beyond the scope of the Trial Division’s subject matter jurisdiction. A.S.C.A. § 31.1006 explicitly requires that “[a]ll proceedings respecting the...refusal, suspension, revocation, or modification of a [medical practitioner’s] license issued by the [Regulatory Health] Board, and judicial review thereof, must be in accordance with the provisions of the Administrative Procedures Act set forth in 4.1001 et seq.” A.S.C.A. § 31.1006; Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 4 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). The judicial review of an Administrative Law Judge’s workmen’s compensation order is limited. However, to challenge the order, an aggrieved party must seek “injunction proceedings” with the High Court of American Samoa “against the Commissioner” to “suspend[] or set aside, in whole or in part,” the workmen’s compensation order. A.S.C.A. § 32.0652(a). The phrase “High Court” in A.S.C.A. § 32.0652(a) means the Trial Division of the High Court of American Samoa. Therefore, the judicial review of a workmen’s compensation order, issued by the ALJ, but filed with the Commissioner’s Office, requires an appeal, if any, to the Trial Division of the High Court. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 4 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). The Appellate Division lacks the subject matter jurisdiction to review an Administrative Law Judge’s workmen’s compensation order directly. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 5 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). Where a workmen’s compensation claim filed with the Workmen’s Compensation Commission was then sent to the Administrative Law Judge, who then issued a workmen’s compensation order, that order does not become effective until the Administrative Law Judge files the workmen’s compensation order with the Office of the Commissioner. Regardless, after the order is filed with the Office of the Commissioner, the workmen’s compensation order can be reviewed within thirty days only through injunction proceedings in the Trial Division of the High Court, whereby the compensation order may be reviewed again on a narrow basis by the Appellate Division of the High Court. The order can be become final if no one applies for injunction proceedings in the Trial Division within thirty days after the order’s filing with the Office of the Commissioner. At any rate, the Appellate Division does not review a workmen’s compensation order that did not follow the above-outlined procedure and any such order “appealed” to the Appellate Division without following the above-outlined procedure shall be dismissed for lack of subject matter jurisdiction. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 5-6 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction).

§ 5(5) – Limitations on Review When reviewing agency decisions, the Appellate Division may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. In reviewing the agency's interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agency’s experience,

technical competence, and specialized knowledge. A.S.C.A. § 4.1043(b). Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 4 (App. Div. Nov. 10, 2011). When the court judicially reviews an agency decision, the court must afford the agency a statutorily-mandated level of review pursuant to A.S.C.A. § 4.1043(b). The Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., does not take such a standard into account, and a court hearing an agency decision in the first instance usurps the statutorilymandated administrative review process. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 7-8 (App. Div. Nov. 10, 2011). An A.S.C.A. § 41.0604(d) fine the Attorney General levies against a vessel or its crew for bringing unauthorized aliens into American Samoa, as a matter of law, is a final agency decision appealable first to the Office of the Administrative Law Judge and then to the Appellate Division. Cf. A.S.C.A. § 4.0604(h); A.S.C.A. § 4.1040(a); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 7 n.3 (App. Div. Nov. 10, 2011). Collateral issues concerning the Corrections Division or the Warden’s acting outside its/his scope of authority or violating constitutional or statutory rights can be addressed by the High Court’s Trial Division in a civil action. A.S.C.A. § 3.0208(a)(7)-(8). Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 2 (Trial Div. July 10, 2012) (order dismissing motion). If the substance of a plaintiff’s claims hinges on whether the government wrongfully terminated the plaintiff’s employment, a decision the Office of the Administrative Law Judge (“OALJ”) renders, the form of plaintiff’s complaint as one lying in tort under the Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq., will not stand. The proper venue for such a dispute lies with the OALJ. Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 4-5 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). The judicial review of an Administrative Law Judge’s workmen’s compensation order is limited. However, to challenge the order, an aggrieved party must seek “injunction proceedings” with the High Court of American Samoa “against the Commissioner” to “suspend[] or set aside, in whole or in part,” the workmen’s compensation order. A.S.C.A. § 32.0652(a). The phrase “High Court” in A.S.C.A. § 32.0652(a) means the Trial Division of the High Court of American Samoa. Therefore, the judicial review of a workmen’s compensation order, issued by the ALJ, but filed with the Commissioner’s Office, requires an appeal, if any, to the Trial Division of the High Court. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 4 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction).

AMERICAN SAMOA GOVERNMENT § 1—The Federal Government, Constitution, & Laws of American Samoa § 1(3) – Applicable Laws The American Samoa Government cannot be subject to a writ of garnishment--and the resultant liability of a garnishee for a third-party's judgment--without the Governor's prior written approval. A.S.C.A. § 43.1803(b); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 n.1 (App. Div. Nov. 10, 2011). Although the garnishment statute, A.S.C.A. §§ 43.1801 et seq., is silent as to whether or not ASG's funds on deposit with a third-party depository may be reached by a judgment creditor through garnishment proceedings, the weight of authority is that public property is, unless the statute otherwise allows, generally not amenable to writs of garnishment or attachment. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 n.1 (App. Div. Nov. 10, 2011). The Fono has expressly prohibited the attachment of ASG property. A.S.C.A. § 43.0901(b); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 n.1 (App. Div. Nov. 10, 2011).

§ 5—The Judiciary § 5(1) – Power and Authority A court cannot render a decision or judgment in an action for which the court knows it lacks subject matter jurisdiction. Generally, any such judgment or decision is a nullity (provided the issue of jurisdiction is raised). Consequently, any party or the court itself can question the court’s jurisdiction. If a court is made to know or discovers it lacks jurisdiction over a controversy at any time during the litigation process, the court must dismiss that controversy. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 2-3 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). It is axiomatic that a court must have power to enforce its own orders. Longline Services, Inc. v. Kupfer, AP No. 0910, slip op. at 10 (App. Div. Apr. 30, 2012). Where an undisputed certification certifying a defendant was working in his official capacity at the time of a complained-of incident and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, failure to serve process in accordance with T.C.R.C.P. 4(d)(5) and A.S.C.A. §§ 43.0501, et seq., can be grounds for dismissing a complaint with prejudice if a court orders compliance at threat of dismissal with prejudice within 30 days and the plaintiff does not comply. It is not an abuse of discretion for a lower court in such circumstances to so hold. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 10-12 (App. Div. Apr. 30, 2012).

§ 5(4) – Precedence and Stare Decisis The language of A.S.C.A. § 28.1510 is clear and any precedent which misconstrues that statute as capable of applying the criminal usury penalty of forfeiture on a lender who has not been convicted of usury is overruled. A lender alleged to have committed the crime of usury for a specific loan will forfeit that specific loan only after the lender's criminal conviction of usury for that specific loan pursuant under A.S.C.A. § 28.1510. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 4-5 (App. Div. March 19, 2012).

§ 5(5) – Supervision of Proceedings and Litigation Once a court renders a sentence in a criminal case, for which no appeal is taken, that criminal case ends. The criminal is then subject to the jurisdictional purview of the executive branch’s Corrections Division. A.S.C.A. § 46.2303. Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 1-2 (Trial Div. July 10, 2012) (order dismissing motion).

§ 5(8) – Statutory Construction [SEE CONSTITUTIONAL LAW § 3(3)]

The Fono preempted common law usury when it passed A.S.C.A. § 28.1510; therefore, common law usury as a legal concept has no application in any action within this Territory while A.S.C.A. § 28.1510 exists. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 5 (App. Div. March 19, 2012). Whereas in the 1973 American Samoa Code, "Commerce and Trade" provisions existed together in Title 12, in the recodified 1981 American Samoa Code Annotated (in use today), the Legislature saw fit to separate these once coexisting concepts in twain: Title 27, entitled "Commerce," and Title 28, entitled "Finance." This delineation separated the following: 12 A.S.C. § 203 was recodified as A.S.C.A. § 27.1501, and 12 A.S.C. § 201 became A.S.C.A. § 28.1501. Those two placements, in Title 27, chapter 15 ("Commercial Code"), and Title 28, chapter 15 ("Loans"), show the relation between those two chapters; both originate from the same source. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 6-7 (App. Div. March 19, 2012). The Fono enacted the Government Tort Liability Act (“GTLA”) for the same reason Congress passed the Federal Tort Claims Act (“FTCA”): to waive the government’s sovereign immunity so as to provide those who have suffered, as a consequence of the government’s tortious conduct, with a legal avenue of redress and to hold the government accountable for its actions. It is this overriding purpose, and the textual similarities that the GTLA and the FTCA share, that ultimately carry the greatest weight. As such, the court finds federal case law interpreting the FTCA to be an appropriate and instructive source of persuasive authority for interpreting A.S.C.A. § 43.1205 and A.S.A.C. § 43.0105 and for determining whether the regulation is incorporated into the statute. A.S.C.A. § 43.1205 does not incorporate A.S.A.C. §§ 43.0101-43.0108. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 7-9 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal).

§ 6—Sovereign Rights Although the garnishment statute, A.S.C.A. §§ 43.1801 et seq., is silent as to whether or not ASG's funds on deposit with a third-party depository may be reached by a judgment creditor through garnishment proceedings, the weight of authority is that public property is, unless the statute otherwise allows, generally not amenable to writs of garnishment or attachment. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 n.1 (App. Div. Nov. 10, 2011). American Samoa Government officials may be held liable in their individual capacities for violating due process while acting under the color of territorial law. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 21 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 22, 23 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.).

CIVIL PROCEDURE § 1—Initial Matters The current Federal Rules of Civil Procedure are controlling (when practicable) in this Territory. A.S.C.A. § 43.0201(a); Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 9 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 1(1) – Jurisdiction Generally Collateral issues concerning the Corrections Division or the Warden’s acting outside its/his scope of authority or violating constitutional or statutory rights can be addressed by the High Court’s Trial Division in a civil action. A.S.C.A. § 3.0208(a)(7)-(8). Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 2 (Trial Div. July 10, 2012) (order dismissing motion). A sentenced defendant cannot tack a civil motion for a special writ concerning his imprisonment onto his criminal case; the defendant must file a civil action or seek redress with the Corrections Division. Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 2 (Trial Div. July 10, 2012) (order dismissing motion). Monies are fungible and, when contained in a bank account, intangible property. Intangible property's situs normally lies where the person is domiciled. However, a bank account opened in a separate state or other jurisdiction may be subject to that separate jurisdiction's courts. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 2912, slip op. at 4-5 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

§ 1(3) – Subject Matter Jurisdiction The Trial Division did not have subject matter jurisdiction to review an agency decision under A.S.C.A. § 41.0604(d) where the violator of A.S.C.A. § 41.0604(c) instituted a civil action against the Attorney General and the American Samoa Government in opposition to a fine levied thereon. The violator must challenge an A.S.C.A. § 41.0604(d) fine in the first instance under the requirements espoused in the Administrative Procedures Act and the Office of Administrative Law Judge Act of 1998. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 8-9 (App. Div. Nov. 10, 2011). Under the Government Tort Liability Act, the court lacks subject matter jurisdiction to hear a tort claim against the government unless the claimant first exhausts the administrative remedy established under A.S.C.A. § 43.1205(a). Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 2 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). If the Attorney General’s Office does not respond to an administrative claim letter within three months, the court will treat that silence as a rejection of the administrative claim letter and deem that the plaintiff has exhausted his administrative remedies, which will in turn grant the court subject matter jurisdiction over a claim brought under the Government Tort Liability Act. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 10-11 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). Complaints which fall short of the plausibility standard are subject to dismissal under T.C.R.C.P. 12(b)(6) unless the court lacks the subject matter jurisdiction to hear a complaint, in which case dismissal under T.C.R.C.P. 12(b)(1) is appropriate. Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 3 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). Any claim premised on the American Samoa Government’s failure to renew a professional license are matters beyond the scope of the Trial Division’s subject matter jurisdiction. A.S.C.A. § 31.1006 explicitly requires that “[a]ll proceedings respecting the...refusal, suspension, revocation, or modification of a [medical practitioner’s] license issued by the [Regulatory Health] Board, and judicial review thereof, must be in accordance with the provisions of the Administrative Procedures Act set forth in 4.1001 et seq.” A.S.C.A. § 31.1006; Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 4 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). If the substance of a plaintiff’s claims hinges on whether the government wrongfully terminated the plaintiff’s employment, a decision the Office of the Administrative Law Judge (“OALJ”) renders, the form of plaintiff’s

complaint as one lying in tort under the Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq., will not stand. The proper venue for such a dispute lies with the OALJ. Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 4-5 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). A court cannot render a decision or judgment in an action for which the court knows it lacks subject matter jurisdiction. Generally, any such judgment or decision is a nullity (provided the issue of jurisdiction is raised). Consequently, any party or the court itself can question the court’s jurisdiction. If a court is made to know or discovers it lacks jurisdiction over a controversy at any time during the litigation process, the court must dismiss that controversy. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 2-3 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). The Appellate Division lacks the subject matter jurisdiction to review an Administrative Law Judge’s workmen’s compensation order directly. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 5 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). Where a workmen’s compensation claim filed with the Workmen’s Compensation Commission was then sent to the Administrative Law Judge, who then issued a workmen’s compensation order, that order does not become effective until the Administrative Law Judge files the workmen’s compensation order with the Office of the Commissioner. Regardless, after the order is filed with the Office of the Commissioner, the workmen’s compensation order can be reviewed within thirty days only through injunction proceedings in the Trial Division of the High Court, whereby the compensation order may be reviewed again on a narrow basis by the Appellate Division of the High Court. The order can be become final if no one applies for injunction proceedings in the Trial Division within thirty days after the order’s filing with the Office of the Commissioner. At any rate, the Appellate Division does not review a workmen’s compensation order that did not follow the above-outlined procedure and any such order “appealed” to the Appellate Division without following the above-outlined procedure shall be dismissed for lack of subject matter jurisdiction. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 5-6 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). Procedural due process of law means the process envisioned and promised by statute. If a person is denied the process promised by statute, they may bring a constitutional claim before the Trial Division of the High Court; however, if a person files an action in the Trial Division of the High Court before complying with the process mandated by statute, the Trial Division of the High Court lacks the jurisdiction to hear the action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 3 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial). If the subject matter of an action regards run-of-the-mill Administrative Procedures Act administrative law and a plaintiff is in no danger of an irreparable harm, the court will not assert jurisdiction over the action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 4-5 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

§ 1(11) – Burden of Proof To show cause in a motion for stay pending appeal, a moving party has the burden to produce evidence and pinpoint which portions of the record come to bear on the court’s decision-making process in the granting of a stay. Indeed, the movant is required to “show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant.” A.C.R. 8. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 3 (App. Div. Apr. 12, 2012) (order denying application for stay). If a plaintiff cannot prove by a preponderance of the evidence the elements of his claim, the court will not issue a judgment in favor of the plaintiff. Preponderance means more probable than not. De Guzman v. Fiamalua, CA No. 23-12, slip op. at 1-2 (Trial Div. June 7, 2012). In a civil action, under the preponderance of the evidence standard, when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. De Guzman v. Fiamalua, CA No. 23-12, slip op. at 2 (Trial Div. June 7, 2012).

On equal showings of evidence in a “he-said, she-said” dispute over an oral agreement, the court will rule in favor of the defendant. De Guzman v. Fiamalua, CA No. 23-12, slip op. at 5 (Trial Div. June 7, 2012).

§ 2—Service of Process § 2(1) – General Provisions Where an undisputed certification certifying a defendant was working in his official capacity at the time of a complained of incident and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, that plaintiff must serve the defendant and his government-agency employer pursuant to T.C.R.C.P. 4(d)(5). Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 6-7 (App. Div. Apr. 30, 2012). Where an undisputed certification certifying a defendant was working in his official capacity at the time of a complained-of incident and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, failure to serve process in accordance with T.C.R.C.P. 4(d)(5) and A.S.C.A. §§ 43.0501, et seq., can be grounds for dismissing a complaint with prejudice if a court orders compliance at threat of dismissal with prejudice within 30 days and the plaintiff does not comply. It is not an abuse of discretion for a lower court in such circumstances to so hold. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 10-12 (App. Div. Apr. 30, 2012).

§ 3—Pleadings § 3(1) – General Provisions “A pleading which sets forth a claim for relief...shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” T.C.R.C.P. 8(a). Under T.C.R.C.P. 8(a), a plaintiff must allege enough facts to sustain a claim; additionally, the plaintiff’s complaint (composed of such claims) must be plausible. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 4 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss).

§ 3(2) – Liberal Construction The court is not constrained to view complaints penned by an attorney as laxly as the court would one authored by a pro se litigant. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 3 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). The supposed “no set of facts” pleading standard articulated in Conley v. Gibson, 355 U.S. 41, 45-6 (1957), “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” is a misunderstood passage that cannot be interpreted literally. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 12-13 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Seemingly-cursory facts in a civil, pro se complaint are afforded more liberal construction than pleadings drafted by an attorney. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 14 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). In a T.C.R.C.P. 12(b)(6) challenge, the court's mandate to liberally construe pleadings to do substantial justice, T.C.R.C.P. 8(f), does not mandate the court take everything alleged in a pleading's claim for relief as true. For instance, a pleading's "naked assertions" are given no weight at all. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 15 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 3(3) – Amending Pleadings When the court authorizes a pleading be amended pursuant to T.C.R.C.P. 15(a), the amended pleading relates back to the date the original pleading was first filed, as if the amended pleading were filed the day the original pleading was. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 17 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

An amended pleading relates back to the date the un-amended, original pleading was filed. If the original pleading was filed before the statute of limitations period ran, then the claims contained in the amended pleading are not barred by any statute of limitation either. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 18-19 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 3(5) – The Plausibility Standard “A pleading which sets forth a claim for relief...shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” T.C.R.C.P. 8(a). Under T.C.R.C.P. 8(a), a plaintiff must allege enough facts to sustain a claim; additionally, the plaintiff’s complaint (composed of such claims) must be plausible. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 4 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). A defendant may challenge a complaint’s plausibility under a T.C.R.C.P. 12(b)(6) motion. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 4 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). The test employed when determining the plausibility of a complaint is two-fold. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts (“naked assertions”). Accordingly, if the facts are “naked assertions,” the court need not consider those facts as true. Secondly, only a complaint that states a plausible claim for relief survives a T.C.R.C.P. 12(b)(6) motion. The second prong is “context specific” and the court draws from its own experience and common sense when making this determination. Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only the possibility of misconduct, and nothing more, the complaint fails because it [**5**] alleges but does not show its pleader is entitled to relief. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 4-5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). When the plausibility of a complaint is questioned and shown by an opposing party to be lacking, the pleader’s failure to show entitlement to relief violates T.C.R.C.P. 8(a) and the complaint is subject to dismissal under T.C.R.C.P. 12(b)(6). Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). Where a plaintiff’s complaint is muddled with “naked assertions” the court need not consider those assertions true, and where the claims are so distorted that they permit the court at most to infer the mere “possibility of misconduct;” the Complaint fails the plausibility standard and is subject to dismissal under T.C.R.C.P. 12(b)(6). Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). It is unsettled whether this older ruling is still applicable in the wake of the plausibility standard in pleadings: parents of a deceased minor child can maintain a survival action against another all the way to final judgment if the parents, a reasonable time after final judgment, probate their child’s estate. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 4 n.1 (Trial Div. April 10, 2012) (order denying application). The plausibility standard mandates a plaintiff allege enough plausible facts to sustain a claim to satisfy T.C.R.C.P. 8(a) and survive a T.C.R.C.P. 12(b)(6) challenge. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 13 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Pleadings subject to the plausibility standard, and challenged under T.C.R.C.P. 12(b)(6), are evaluated under a twopart test. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts ("naked assertions"). Secondly, "only a complaint that states a plausible claim for relief survives a motion to dismiss [for failure to state a claim]." The second prong is "context specific" and the court draws from its own "experience and common sense" when making this determination. Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only "the possibility of misconduct," and nothing more, the complaint fails because it alleges but does not show its pleader is entitled to relief. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 13-14 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

The plausibility standard which applies to claims also applies to defenses. Parties may move to strike defenses which offend the plausibility standard. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 21 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). To survive a motion to strike a defense premised on the plausibility standard, well pleaded facts must accompany a defense. A defense listed with no factual allegations of any kind cannot withstand the plausibility standard as such a listing is a “naked assertion.” Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 21 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). A nakedly-asserted defense can be struck from a responsive pleading; a party so affected can move to amend the responsive pleading to include well pleaded facts justifying the defense. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 22 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Well pleaded facts are considered true, but well-pleaded facts are still subject to the court's scrutiny: if, when drawing upon the court's "experience and common sense," the well-pleaded facts do not state a claim upon which relief can be granted, the claim is subject to dismissal. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 4302, slip op. at 15 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Complaints which fall short of the plausibility standard are subject to dismissal under T.C.R.C.P. 12(b)(6) unless the court lacks the subject matter jurisdiction to hear a complaint, in which case dismissal under T.C.R.C.P. 12(b)(1) is appropriate. Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 3 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss).

§ 4—Pretrial Motions § 4(1) – Motion to Dismiss § 4(1)(b) – Failure to State a Claim—12(b)(6) Motion A defendant may challenge a complaint’s plausibility under a T.C.R.C.P. 12(b)(6) motion. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 4 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). The test employed when determining the plausibility of a complaint is two-fold. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts (“naked assertions”). Accordingly, if the facts are “naked assertions,” the court need not consider those facts as true. Secondly, only a complaint that states a plausible claim for relief survives a T.C.R.C.P. 12(b)(6) motion. The second prong is “context specific” and the court draws from its own experience and common sense when making this determination. Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only the possibility of misconduct, and nothing more, the complaint fails because it [**5**] alleges but does not show its pleader is entitled to relief. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 4-5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). When the plausibility of a complaint is questioned and shown by an opposing party to be lacking, the pleader’s failure to show entitlement to relief violates T.C.R.C.P. 8(a) and the complaint is subject to dismissal under T.C.R.C.P. 12(b)(6). Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). Where a plaintiff’s complaint is muddled with “naked assertions” the court need not consider those assertions true, and where the claims are so distorted that they permit the court at most to infer the mere “possibility of misconduct;” the Complaint fails the plausibility standard and is subject to dismissal under T.C.R.C.P. 12(b)(6). Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). T.C.R.C.P. 8(a) espouses a seemingly lax pleading standard, "A pleading...shall contain (1) a short and plain statement of the claim showing the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 12 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

If a party seeking relief under a claim, counterclaim, or cross-claim fails to state a claim upon which relief can be granted pursuant to T.C.R.C.P. 8(a), the defending party may move the court to dismiss the claim under T.C.R.C.P. 12(b)(6). Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 12 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). In a T.C.R.C.P. 12(b)(6) challenge, the court's mandate to liberally construe pleadings to do substantial justice, T.C.R.C.P. 8(f), does not mandate the court take everything alleged in a pleading's claim for relief as true. For instance, a pleading's "naked assertions" are given no weight at all. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 15 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Well pleaded facts are considered true, but well-pleaded facts are still subject to the court's scrutiny: if, when drawing upon the court's "experience and common sense," the well-pleaded facts do not state a claim upon which relief can be granted, the claim is subject to dismissal. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 4302, slip op. at 15 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Complaints which fall short of the plausibility standard are subject to dismissal under T.C.R.C.P. 12(b)(6) unless the court lacks the subject matter jurisdiction to hear a complaint, in which case dismissal under T.C.R.C.P. 12(b)(1) is appropriate. Tuli’au v. Tuiasina, CA No. 22-12, slip op. at 3 (Trial Div. July 26, 2012) (order granting def. ASG’s mot. to dismiss). A T.C.R.C.P. 12(b)(6) defense is predicated upon the face of a claim for relief. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 15-16 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Where a party seeking relief alleges well-pleaded facts that would satisfy the elements of a contract breach, then a T.C.R.C.P. 12(b)(6) defense preserved in a defending party’s answer cannot inure at trial and is subject to adjudication and disposal via summary judgment. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 16 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 4(1)(d) – Compared to Summary Judgment Motion Where a party seeking relief alleges well-pleaded facts that would satisfy the elements of a contract breach, then a T.C.R.C.P. 12(b)(6) defense preserved in a defending party’s answer cannot inure at trial and is subject to adjudication and disposal via summary judgment. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 16 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 4(4) – Motion to Strike § 4(4)(a) – Generally The plausibility standard which applies to claims also applies to defenses. Parties may move to strike defenses which offend the plausibility standard. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 21 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). To survive a motion to strike a defense premised on the plausibility standard, well pleaded facts must accompany a defense. A defense listed with no factual allegations of any kind cannot withstand the plausibility standard as such a listing is a “naked assertion.” Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 21 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). A nakedly-asserted defense can be struck from a responsive pleading; a party so affected can move to amend the responsive pleading to include well pleaded facts justifying the defense. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 22 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 5—Parties & Claims § 5(10) – Third Party Practice

Jus tertii is a legal classification concept, wherein a third party asserts the right of another in a lawsuit most often used (to ill-effect) in property actions and constitutional challenges. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 5 n.2 (Trial Div. April 10, 2012) (order denying application).

§ 7—Summary Judgment § 7(1) – Standard Summary judgment is proper where the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 8-9 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 9, 20 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). "Only disputes over facts that might affect the outcome of the suit under the governing law" are "material," and such a dispute is "genuine" only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 9 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, nonspecific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 9, 20 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). To make a prima facie showing for summary judgment, the party moving for summary judgment can use admissions in the record; affidavits are not always necessary. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 10 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). An admission in pleadings is considered a fact for summary judgment proceedings. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 18 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 7(2) – Opposition to Motion § 7(3) – Compared to 12(b)(6) Motion to Dismiss An admission in pleadings is considered a fact for summary judgment proceedings. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 18 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 7(6) – Within Court’s Discretion A statute of limitations defense that could not inure at trial is subject to adjudication and disposal via summary judgment. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 19 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 7(10) – Summary Judgment Granted Where a party moving for summary judgment rightly indicates that the record and law cannot substantiate a nonmoving party’s laches defense, and the non-moving party was notified of the summary judgment motion and provides deficient or unsupported averments in support of his laches defense, then that laches defense is properly subject to disposal via summary judgment. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 20 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 7(11) – Appropriate Issues For Summary Judgment Where a party moving for summary judgment rightly indicates that the record and law cannot substantiate a nonmoving party’s laches defense, and the non-moving party was notified of the summary judgment motion and provides deficient or unsupported averments in support of his laches defense, then that laches defense is properly subject to disposal via summary judgment. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 20 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 8—Injunctions § 8(2) – Preliminary Injunctions A preliminary injunction will only issue after an inter-partes hearing duly noticed, and upon "sufficient grounds," which an applicant establishes by a preponderance of evidence. Sufficient grounds for issuing a preliminary injunction are: (1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j). Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 2-3 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). Although a written undertaking with sufficient sureties should issue with a preliminary injunction, one is not needed if an injunction issues on application of ASG. A.S.C.A. § 43.1309; Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 3 n.3 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). A court issuing a preliminary injunction must determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side (the applicant’s showing of great or irreparable injury). Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 3 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). The applicant’s showing of great or irreparable injury turns on a balancing of equities determination, which in turn takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 3 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act. Courts generally do not issue mandatory injunctions and require a higher showing of success on the merits if one were to be given. Where a bank is shown to have improperly frozen a government’s bank account at the behest of a foreign court’s writ of execution, the heightened showing is met. However, this ruling is narrow and the court’s order should not be misconstrued as generally allowing private individuals to seek out mandatory injunctions against another private individual for the return of money—those situations normally require an action for money (legal) damages not injunctive (equitable/coercive) relief. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 4 n.4 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). The procedural posturing of the action is for a mandatory preliminary injunction against a bank (which has locations in multiple jurisdictions) for that bank’s freezing of the local government’s account containing intangible property located in American Samoa under the imprimatur of an as-of-yet unenforced, foreign judgment. The court was satisfied that the government will likely succeed at trial to reverse the bank’s freeze, by being able to prove that the nexus concerning the situs of the intangible property in dispute flourishes in American Samoa, not Hawaii, thereby favoring the issuance of a preliminary injunction against the bank. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 2912, slip op. at 6-7 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

§ 8(3) –Injunctions Granted The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act. Courts generally do not issue mandatory injunctions and require a higher showing of success on the merits if one were to be given. Where a bank is shown to have improperly frozen a government’s bank account at the behest of a foreign court’s writ of execution, the heightened showing is met. However, this ruling is narrow and the court’s order should not be misconstrued as generally allowing private individuals to seek out mandatory injunctions against another private individual for the return of money—those situations normally require an action for money (legal) damages not injunctive (equitable/coercive) relief. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 4 n.4 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

§ 8(5) – Substantial Likelihood of Success A court issuing a preliminary injunction must determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side (the applicant’s showing of great or irreparable injury). Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 3 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). The procedural posturing of the action is for a mandatory preliminary injunction against a bank (which has locations in multiple jurisdictions) for that bank’s freezing of the local government’s account containing intangible property located in American Samoa under the imprimatur of an as-of-yet unenforced, foreign judgment. The court was satisfied that the government will likely succeed at trial to reverse the bank’s freeze, by being able to prove that the nexus concerning the situs of the intangible property in dispute flourishes in American Samoa, not Hawaii, thereby favoring the issuance of a preliminary injunction against the bank. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 2912, slip op. at 6-7 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

§ 8(6) – Irreparable Injury The applicant’s showing of great or irreparable injury turns on a balancing of equities determination, which in turn takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 3 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). If a bank is allowed to freeze the government’s general account whenever a judgment-creditor enforces a judgment in a far-flung jurisdiction possessing a branch of that bank, it could have alarming consequences on the ability of American Samoa's government to function daily—not to mention adding additional cost for defending such lawsuits. Moreover, not only is the local hospital (for which lives may very well be jeopardized) dependent on the contents of the General Fund Account, but so much of this island community relies upon the local government for their livelihood, electricity, etc. that the harm from such perfunctory BOH freezes could be dire. Although equitable relief should not normally issue for the release of legal damages, when dealing with the government bank account for government workers and services in a community utterly dependent upon the same, provisional injunctive relief can be proper. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 8 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

§ 8(8) – Compared to Stay Pending Appeal A motion for stay pending appeal that does not show cause at the onset as to why a stay should issue, supported by specific portions of the record and sworn statements of a non-conclusory nature, will not trigger the likelihood-ofsuccess and balance-of-equities analysis normally undertaken when evaluating motions for stay; the court will simply deny such a deficient motion. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 4 (App. Div. Apr. 12, 2012) (order denying application for stay).

§ 9—Equitable Remedies § 9(3) – Laches A contract-breach claim that is not violative of this Territory’s statute of limitations is also not subject to dismissal via laches. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 20 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Laches is composed of two elements: (1) a party-seeking-relief's unreasonable delay in asserting his rights; and (2) an undue prejudice stemming from such delay affecting the other party. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 19 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). Laches is an equitable principle, which will bar a claim for relief subject to (1) the laches' elements being met, and (2) a court’s discretion. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 19 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

§ 10—Judgments § 10(2) – Validity of Judgments In a small claims dispute, a party can bring an action before the District Court and then appeal the judgment to the High Court within five days, or else the District Court’s judgment is final. A small claims action appealed to the Trial Division of the High Court results in a trial de novo, without any weight or reference given to the District Court trial below. De Guzman v. Fiamalua, CA No. 23-12, slip op. at 1 (Trial Div. June 7, 2012).

§ 10(4) – Declaratory Judgments A declaratory relief action's purpose is to declare the rights or duties of parties to a deed, will, or contract, or to quiet and calm disputes whose entire disposition rests on the respective parties' rights and duties. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 5 (App. Div. Nov. 10, 2011). The Trial Division has the discretionary authority to hear a declaratory action, A.S.C.A. § 43.1102, however, the Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., is a statute which neither grants nor expands subject matter jurisdiction to the Trial Division; requests for declaratory judgments may be heard only in cases that otherwise are within the lower court’s jurisdiction. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 5 (App. Div. Nov. 10, 2011). The Fono did not augment the Trial Division's jurisdiction to afford it review of administrative decisions under the Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq.--that review process is otherwise provided for by statute, the Administrative Procedures Act. A.S.C.A. §§ 4.1001, et seq. Accordingly, the Trial Division must assert jurisdiction before entertaining a declaratory relief action, for without such jurisdiction the Trial Division would invade the statutorily-mandated bailiwicks of other administrative and judicial tribunals. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 5-6 (App. Div. Nov. 10, 2011). Controlling case-law prohibits the Trial Division from interfering with the processes contained in the Administrative Procedures Act (“APA”) and the Administrative Law Judge Act (“ALJA”) by hearing controversies attempting to circumvent the APA and the ALJA under the guise of a declaratory relief action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 5 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial). It is within the Trial Division’s discretion whether to hear a declaratory relief action or not. A.S.C.A. § 43.1102; Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 6 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

§ 10(9) – Damages Awards § 10(9)(a) -- Generally If a plaintiff cannot prove by a preponderance of the evidence the elements of his claim, the court will not issue a judgment in favor of the plaintiff. Preponderance means more probable than not. De Guzman v. Fiamalua, CA No. 23-12, slip op. at 1-2 (Trial Div. June 7, 2012). In a civil action, under the preponderance of the evidence standard, when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. De Guzman v. Fiamalua, CA No. 23-12, slip op. at 2 (Trial Div. June 7, 2012).

§ 11—Post Judgment Motions & Appeals § 11(1) – Motion for New Trial or Reconsideration § 11(1)(a) – General Provisions The Trial Division’s determination as to whether PPYC’s “Motion for Reconsideration” is particularized enough to survive the threshold particularity requirement of T.C.R.C.P. 7(b)(1) is a pure question of law that the Appellate Division reviews de novo. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 3 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss).

“Motion for Reconsideration” is a misnomer; the Appellate Division will treat a “Motion for Reconsideration” as a T.C.R.C.P. 59 motion for new trial or amended judgment. A.S.C.A. § 43.0802(a).

§ 11(1)(c) – Particularity Requirement Unlike most federal courts, this Territory makes T.C.R.C.P. 7(b)(1)’s particularity requirement a jurisdictional predicate to appellate review, to wit, if no timely motion for reconsideration or new trial conforming to the particularity requirement of Rule 7(b)(1) is filed within the statutory ten-day deadline with the lower court, then the Appellate Division has no jurisdiction to entertain an appeal in such a case–regardless of any argument, equitable or otherwise to the contrary. Quite simply, the Appellate Division lacks jurisdiction to hear an appeal if the appellant filed an unparticularized or untimely motion for new trial at the trial level. A.S.C.A. § 43.0802(a). Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 4-5 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). The particularity requirement of T.C.R.C.P. 7(b)(1) means “reasonable specification.’” As the phrase “reasonable specification” implies, courts consider this particularity requirement rather flexibly. However, motions for new trial must, at the very least, state the grounds for new trial or amendment of judgment; failure to do so will result in violation of Rule 7(b)(1). Essentially, a particularized motion for new trial should reasonably specify an appellant’s grounds for new trial, amendment of the lower court’s judgment, and/or appeal. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 5-6 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). To eventually secure the Appellate Division’s jurisdiction, a party below must pursue Rule 59 relief in the form of a motion for new trial, submitting a motion for new trial that clearly identifies those areas of the trial court’s judgment proposed to be reopened and reheard and the grounds therefore. Relief sought in the form of an amended or altered judgment should clearly identify the trial court’s errors and be accompanied by a proposed amended judgment. A party that files a general “Motion for Reconsideration,” bereft of a fair indication of the grounds relied upon in support of the motion, does so at the party’s peril. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 7 n.5 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). When the Appellate Division looks upon the original motion for new trial or amended judgment, and one of the grounds contained therein lacks discernible, sensible, or valid legal rhetoric, the Appellate Division is unable to entertain an appeal on the basis of that ground. Such a ground fails the particularity standard and therefore cannot unlock the Appellate Division’s jurisdiction. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 7 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). When the Appellate Division looks upon the original motion for new trial or amended judgment, and one of the grounds contained therein minimally articulates enough to discern a claim of lower court error, whether true or not, is enough to unlock the Appellate Division’s jurisdiction over that stated ground. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 7-8 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss).

§ 11(1)(d) – Grounds for New Trial or Reconsideration When the Appellate Division looks upon the original motion for new trial or amended judgment, and one of the grounds contained therein lacks discernible, sensible, or valid legal rhetoric, the Appellate Division is unable to entertain an appeal on the basis of that ground. Such a ground fails the particularity standard and therefore cannot unlock the Appellate Division’s jurisdiction. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 7 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). When the Appellate Division looks upon the original motion for new trial or amended judgment, and one of the grounds contained therein minimally articulates enough to discern a claim of lower court error, whether true or not, is enough to unlock the Appellate Division’s jurisdiction over that stated ground. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 7-8 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss).

Motions for amended judgment or new trial require a moving party show that an error of the court affected his substantial rights, or that recently uncovered facts would change the court's ruling. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 2-3 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

§ 11(2) – Relief from Judgment or Order – Rule 60 Motion Defendants who appear within the meaning of T.C.R.C.P. 5(a) in a civil action are entitled to actual notice of a trial date. If such a defendant did not receive actual notice of a trial date, and because of that lack of notice did not present a defense at trial, such lack of notice is a denial of that defendant’s procedural due process rights and the judgment issued below is void. Chand v. Fa’aoso, AP No. 08-10, slip op. at 9 (App. Div. Aug. 7, 2012). T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.” Chand v. Fa’aoso, AP No. 08-10, slip op. at 7 (App. Div. Aug. 7, 2012). Though the appellate court typically reviews a lower court’s T.C.R.C.P. 60(b) decision under an abuse of discretion standard, when the appeal questions whether the lower court’s judgment is void pursuant to T.C.R.C.P. 60(b)(4), the appellate court will review the issue de novo. Either the judgment is legally void or the judgment is not. Chand v. Fa’aoso, AP No. 08-10, slip op. at 7 (App. Div. Aug. 7, 2012). A judgment is void only when the trial court rendering the judgment lacked the subject matter jurisdiction to render the judgment or if the parties or the court acted in a manner inconsistent with due process of law. Chand v. Fa’aoso, AP No. 08-10, slip op. at 7 (App. Div. Aug. 7, 2012).

§ 11(3) – Stay of Proceedings § 11(3)(a) – General Provisions Pursuant to A.C.R. 27, a single justice panel of the Appellate Division may, in its discretion, rule on the granting of a stay pending appeal; however, when a party challenges the Appellate Division’s subject matter jurisdiction, a fullpanel of the Appellate Division must convene and hear parties’ arguments as to the Appellate Division’s subject matter jurisdiction over the appeal. Consequently, the issue of a stay must wait until subject matter jurisdiction is established by a full panel of the Appellate Division. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 2 (App. Div. April 3, 2012) (order). Pursuant to A.C.R. 8, a motion for a stay of the Trial Division’s judgment or order “...may be made to and considered by a single justice of the appellate division.” In addition, A.C.R. 27(c) empowers a single justice of the Appellate Division to entertain and grant or deny any request for relief properly sought by motion, “except that a single justice...may not dismiss or otherwise determine an appeal....” Thus, a motion for a stay can properly be heard before a single justice, as the granting of a stay does not dismiss or determine an appeal, and ACR 8 specifically allows a single justice to hear and decide a motion for a stay. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 2 (App. Div. Apr. 12, 2012) (order denying application for stay). Pending the hearing and determination of an appeal, execution of the High Court’s final judgment or order shall not be stayed unless the Appellate Division orders a stay for cause shown. A.S.C.A. §43.0803. The court’s discretion to grant a stay should be exercised only if cause is shown. A court should not automatically or casually grant a stay of judgment pending appeal. The moving party bears the burden of showing cause as to why a judgment should be stayed. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 2 (App. Div. Apr. 12, 2012) (order denying application for stay). To show cause in a motion for stay pending appeal, a moving party has the burden to produce evidence and pinpoint which portions of the record come to bear on the court’s decision-making process in the granting of a stay. Indeed, the movant is required to “show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant.” A.C.R. 8. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 3 (App. Div. Apr. 12, 2012) (order denying application for stay).

A party moving for a motion for stay pending appeal does not meet its show-cause burden when it files only: (1) a motion that generalizes and abstains from pinpointing or citing relevant portions of the record that would assist the court in its stay-analysis; and (2) a lone, conclusory affidavit devoid of factual details. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 3 (App. Div. Apr. 12, 2012) (order denying application for stay). The party moving for a stay pending appeal who presents a single, conclusory affidavit, without sworn statements, or portions of the record as are relevant has woefully failed in its burden to show cause. The court will not scour the record for the moving party’s benefit; it the movant’s burden to do so. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 4 (App. Div. Apr. 12, 2012) (order denying application for stay). A motion for stay pending appeal that does not show cause at the onset as to why a stay should issue, supported by specific portions of the record and sworn statements of a non-conclusory nature, will not trigger the likelihood-ofsuccess and balance-of-equities analysis normally undertaken when evaluating motions for stay; the court will simply deny such a deficient motion. Am. Samoa Veterans Ass’n. v. Am. Samoa Gov’t, AP No. 08-11, slip op. at 4 (App. Div. Apr. 12, 2012) (order denying application for stay).

§ 11(3)(b) – Likelihood of Appellate Success A motion for stay pending appeal that does not show cause at the onset as to why a stay should issue, supported by specific portions of the record and sworn statements of a non-conclusory nature, will not trigger the likelihood-ofsuccess and balance-of-equities analysis normally undertaken when evaluating motions for stay; the court will simply deny such a deficient motion.

§ 11(3)(c) – Irreparable Harm/Balance of Equities A motion for stay pending appeal that does not show cause at the onset as to why a stay should issue, supported by specific portions of the record and sworn statements of a non-conclusory nature, will not trigger the likelihood-ofsuccess and balance-of-equities analysis normally undertaken when evaluating motions for stay; the court will simply deny such a deficient motion.

§ 11(4) – Appellate Jurisdiction Pursuant to A.S.C.A. § 3.0208(c), the Appellate Division of the High Court has jurisdiction to review, on appeal, not only final decisions of the Trial and Land and Titles division of the High Court, but also, inter alia, appeals of administrative decisions as provided in A.S.C.A. §§ 4.1040-4.1044, the Administrative Procedure Act (the "APA"). Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 (App. Div. Nov. 10, 2011). Pursuant to A.C.R. 27, a single justice panel of the Appellate Division may, in its discretion, rule on the granting of a stay pending appeal; however, when a party challenges the Appellate Division’s subject matter jurisdiction, a fullpanel of the Appellate Division must convene and hear parties’ arguments as to the Appellate Division’s subject matter jurisdiction over the appeal. Consequently, the issue of a stay must wait until subject matter jurisdiction is established by a full panel of the Appellate Division. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 2 (App. Div. April 3, 2012) (order). Unlike most federal courts, this Territory makes T.C.R.C.P. 7(b)(1)’s particularity requirement a jurisdictional predicate to appellate review, to wit, if no timely motion for reconsideration or new trial conforming to the particularity requirement of Rule 7(b)(1) is filed within the statutory ten-day deadline with the lower court, then the Appellate Division has no jurisdiction to entertain an appeal in such a case–regardless of any argument, equitable or otherwise to the contrary. Quite simply, the Appellate Division lacks jurisdiction to hear an appeal if the appellant filed an unparticularized or untimely motion for new trial at the trial level. A.S.C.A. § 43.0802(a). Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 4-5 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss).

§ 11(8) – Findings of Law—De Novo Review The Appellate Division reviews questions of law de novo. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 (App. Div. Nov. 10, 2011).

The Appellate Division of the High Court reviews questions of law de novo. In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 3-4 (App. Div. March 19, 2012). The Trial Division’s determination as to whether PPYC’s “Motion for Reconsideration” is particularized enough to survive the threshold particularity requirement of T.C.R.C.P. 7(b)(1) is a pure question of law that the Appellate Division reviews de novo. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 04-12, slip op. at 3 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss). In the judicial appeals context, de novo review acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew. Pago Pago Yacht Club, Inc. v. Am. Samoa Gov’t, AP No. 0412, slip op. at 3 (App. Div. June 1, 2012) (order granting in part and denying in part ASG’s mot. to dismiss).

§ 11(9) – Findings of Fact—Clearly Erroneous The Appellate Division reviews findings of fact deferentially under the "clearly erroneous" standard. A finding of fact is erroneous when "the entire record produced the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts." Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3-4 (App. Div. Nov. 10, 2011). With far more deference, the Appellate Division reviews findings of fact under the "clearly erroneous" standard. A.S.C.A. § 43.0801(b). A finding of fact is erroneous when the entire record produced the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge's assessment of conflicting and ambiguous facts. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 4 (App. Div. March 19, 2012). A trial court’s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 4 n.1 (App. Div. Apr. 30, 2012).

§ 11(11) – Administrative Agency Decisions When reviewing agency decisions, the Appellate Division may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. In reviewing the agency's interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agency’s experience, technical competence, and specialized knowledge. A.S.C.A. § 4.1043(b). Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 4 (App. Div. Nov. 10, 2011). When the court judicially reviews an agency decision, the court must afford the agency a statutorily-mandated level of review pursuant to A.S.C.A. § 4.1043(b). The Declaratory Relief Act, A.S.C.A. §§ 43.1101, et seq., does not take such a standard into account, and a court hearing an agency decision in the first instance usurps the statutorilymandated administrative review process. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 7-8 (App. Div. Nov. 10, 2011).

§ 11(12) – Abuse of Discretion A court abuses its discretion when it does not apply the correct law or rests its decision on a clearly erroneous finding of a material fact. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 4-5 (App. Div. Apr. 30, 2012). A trial court abuses its discretion when it makes an error of law. Thus, the first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, the appellate court must conclude it abused its discretion. If the trial court identified the correct legal rule, the appellate court moves to the second step of the abuse of discretion test. The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record. If any

of these three apply, only then is the appellate court able to have a definite and firm conviction that the trial court reached a conclusion that was a mistake or was not among its permissible options, and thus that it abused its discretion by making a clearly erroneous finding of fact. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 5 n.2 (App. Div. Apr. 30, 2012).

§ 14—Garnishment The American Samoa Government cannot be subject to a writ of garnishment--and the resultant liability of a garnishee for a third-party's judgment--without the Governor's prior written approval. A.S.C.A. § 43.1803(b); Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 n.1 (App. Div. Nov. 10, 2011). Although the garnishment statute, A.S.C.A. §§ 43.1801 et seq., is silent as to whether or not ASG's funds on deposit with a third-party depository may be reached by a judgment creditor through garnishment proceedings, the weight of authority is that public property is, unless the statute otherwise allows, generally not amenable to writs of garnishment or attachment. Am. Samoa Gov’t v. Samoa Shipping Co., Ltd., AP No. 09-09, slip op. at 3 n.1 (App. Div. Nov. 10, 2011).

CONSTITUTIONAL LAW § 2—Justiciable Case or Controversy § 2(1) – Standing Jus tertii is a legal classification concept, wherein a third party asserts the right of another in a lawsuit most often used (to ill-effect) in property actions and constitutional challenges. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 5 n.2 (Trial Div. April 10, 2012) (order denying application).

§ 3—Constitutional and Statutory Interpretation § 3(1) – General Provisions The District Court is bound by the U.S. Supreme Court’s pronouncements concerning the parameters of protection afforded individuals under the Fourth Amendment. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 10 (Dist. Ct. Mar. 4, 2012).

§ 3(3) – Statutory Construction Canons of statutory interpretation require the judiciary assume the legislature intended to enact an effective law, that statutes be read in harmony with one another when possible, and that a statute enacted later in time is more controlling than earlier statutes. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 6 (App. Div. March 19, 2012). The constitutional avoidance doctrine states that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the court’s duty is to adopt the latter. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 3 (Trial. Div. July 27, 2012) (order rejecting plea agreement). Where two statutory chapters are implicated in an action, the Appellate Division will effectuate both chapters in as close to a state of harmony as is possible. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 7 (App. Div. March 19, 2012). The constitutional avoidance doctrine would normally preclude a court from raising constitutional issues on its own. However, a court reviewing a plea agreement—i.e., to make certain that the factual basis therein will satisfy the elements of a listed crime—can sua sponte raise the constitutionality of a statutory crime whose elements are potentially violative of a person’s constitutional right to be free from unwarranted government search and seizure. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 3-4 (Trial. Div. July 27, 2012) (order rejecting plea agreement). An axiom of statutory interpretation stemming from the constitutional avoidance doctrine: where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of the Legislature. This statutory interpretation axiom is favored in American Samoa; consequently, local courts will favor a construction of local statute in line with the U.S. and Territorial Constitutions over another construction potentially violative of either Constitution (unless the former construction is explicitly contrary to the Fono’s intent). Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 4 (Trial. Div. July 27, 2012) (order rejecting plea agreement). A.S.C.A. § 46.4615 cannot punish members of the public for not complying with a police officer’s voluntary stop because such an interpretation of A.S.C.A. § 46.4615 would violate the U.S. and Territorial Constitutions. The constitutional avoidance doctrine supports the interpretation of voluntary stops lying outside the scope of punishment contemplated in A.S.C.A. § 46.4615 because where two interpretations of a statute where one would yield a constitutionally suspect result and the other a constitutionally tolerable result, the court will chose the constitutionally tolerable interpretations (absent clear legislative intent to the contrary). The Fono did not intend to punish members of the public who refused to participate in a voluntary police stop—such an interpretation would have absurd constitutional ramifications. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 7 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

§ 5—Full Faith and Credit The courts must give full faith and credit to judgments issued by other state, territorial, or federal courts. However, the High Court must give full faith and credit to foreign judgments subject to American Samoa’s Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701, et seq. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 6 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief). Each state and territory has its own laws of process for enforcing foreign judgments and a court in one state or territory generally cannot abridge that process by issuing writs to apply to foreign property outside that court’s territorial jurisdiction. Such writs have no legal force in a foreign jurisdiction, only the judgment. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 6 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

§ 6—Due Process An action for damages premised under 42 U.S.C. §§ 1983 & 1985 cannot lie against the American Samoa Government as the government is not a “person” within the meaning of those federal statutes. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 6 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). The viability of a Section 1983 claim in American Samoa is not premised on determining whether due process of law in the Territory is protected under the Fifth Amendment or the Fourteenth Amendment or whether American Samoa’s constitution preempts both. One need only look at the statute’s plain language to realize that the source of the constitutionally protected right is inconsequential for determining whether Section 1983 applies to a territory. It is enough that due process, as applied to the Territory, is a right protected under the U.S. Constitution and that the Territory is a territory contemplated under Section 1983. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 5 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Congress intended to expand the applicability of Section 1983 to enable the people in the territories to redress deprivations of constitutionally protected due process rights irrespective of whether such rights spring from the Fifth Amendment or the Fourteenth Amendment. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 7 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). We need not ask which amendment under the U.S. Constitution protects the violated constitutional due process right. Where the conduct concerned involves that of a person acting under color of territorial law, the issue of whether Section 1983 is a right of action available to the people in American Samoa depends on whether: (1) due process in American Samoa is protected under the U.S. Constitution; and (2) American Samoa is a territory that is contemplated under Section 1983. If both are true, then Section 1983 is a right of action that is available to the people in American Samoa. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 9, 10 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Due process of law in American Samoa is a right whose protection not only comes from the Revised Constitution of American Samoa; it is also protected under the U.S. Constitution. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 10 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). A constitutional right applies to an unincorporated territory on its own force if: (1) the right is fundamental as applied to the states and (2) its application to the territory would not be impracticable or anomalous to the culture and customs of American Samoa. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 11 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Due process, in general, is a constitutionally protected fundamental right. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 12 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Due process, as the U.S. Constitution protects it, is neither impracticable nor anomalous in the way that it is applied to the Territory. Due process is well observed and protected in the Territory. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 13 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.).

American Samoa is indeed a territory contemplated under Section 1983. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 14 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). Violations of a right specifically protected under the substantive component of the Due Process Clause of the Fourteenth Amendment are complete when the government official undertakes the wrongful action; consequently, claims for such violations are actionable under Section 1983. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 29 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). The Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 29 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). The Supreme Court has repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense. A government official whose action “shocks the conscience” violates substantive due process. Thus, in a due process challenge to executive action, the threshold question is whether behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Government officials who use force with the intent to harm an individual is an action that may be deemed shocking. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 30 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). The Fifth Amendment protects civil detainees in the custody of the United States from conditions that amount to punishment. Immigration detainees are civil detainees and should receive the same level of due process protection as pre-trial criminal detainees. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 31 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.). This Territory’s Due Process Clause is contained in Article I, § 2, of the Revised Constitution of American Samoa, and reads, “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.” The Fifth and Fourteenth Amendments of the United States Constitution contain similarly-worded provisions, for which the courts will turn to U.S. precedent to lend understanding to the contours of this Territory’s Constitutional Due Process Clause. Chand v. Fa’aoso, AP No. 0810, slip op. at 7-8 (App. Div. Aug. 7, 2012). Procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property. Chand v. Fa’aoso, AP No. 08-10, slip op. at 8 (App. Div. Aug. 7, 2012). Article I, § 2, of the Revised Constitution of American Samoa prevents the deprivation of a person’s property without notice of the grounds and an opportunity to be heard at a meaningful time and in a meaningful manner. Chand v. Fa’aoso, AP No. 08-10, slip op. at 9 (App. Div. Aug. 7, 2012). Defendants who appear within the meaning of T.C.R.C.P. 5(a) in a civil action are entitled to actual notice of a trial date. If such a defendant did not receive actual notice of a trial date, and because of that lack of notice did not present a defense at trial, such lack of notice is a denial of that defendant’s procedural due process rights and the judgment issued below is void. Chand v. Fa’aoso, AP No. 08-10, slip op. at 9 (App. Div. Aug. 7, 2012). Procedural due process of law means the process envisioned and promised by statute. If a person is denied the process promised by statute, they may bring a constitutional claim before the Trial Division of the High Court; however, if a person files an action in the Trial Division of the High Court before complying with the process mandated by statute, the Trial Division of the High Court lacks the jurisdiction to hear the action. Hall v. Am. Samoa Med’l Ctr., CA No. 49-07, slip op. at 3 (Trial Div. Aug. 7, 2012) (order denying pl.’s mot. for “reconsideration” and/or new trial).

CONTRACTS § 1—Contract Formation § 1(4) – Requirement of a Writing: The Statute of Frauds Business loans (A.S.C.A. § 28.1503) are not subject to the writing requirement mandated by A.S.C.A. § 28.1501(a). Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 9 (App. Div. March 19, 2012).

§ 3—Unenforceability § 3(1) – Public Policy/Illegality The language of A.S.C.A. § 28.1510 is clear and any precedent which misconstrues that statute as capable of applying the criminal usury penalty of forfeiture on a lender who has not been convicted of usury is overruled. A lender alleged to have committed the crime of usury for a specific loan will forfeit that specific loan only after the lender's criminal conviction of usury for that specific loan pursuant under A.S.C.A. § 28.1510. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 4-5 (App. Div. March 19, 2012). The Fono preempted common law usury when it passed A.S.C.A. § 28.1510; therefore, common law usury as a legal concept has no application in any action within this Territory while A.S.C.A. § 28.1510 exists. Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 5 (App. Div. March 19, 2012).

§ 5—Contract Interpretation § 5(1) – General Provisions A merchant-to-merchant open credit agreement that qualifies as a contract under A.S.C.A. §§ 27.1530-27.1532 allows the seller/lender to "charge, contract for, and receive...interest or other compensation" up to 18 percent on the open credit agreement ("business loan"/contract) pursuant to A.S.C.A. § 28.1503 (absent contract provisions or timely written notices of objection to the contrary). Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 9-10 (App. Div. March 19, 2012). A contract for the sale of goods is enforceable with respect to goods that have been "received and accepted." Because statutory law does not offer further guidance with respect to acceptance, breach of contract, or damages, resort may be had to common law principles. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 4 (App. Div. May 11, 2011).

§ 5(2) – The Uniform Commercial Code A trial court in a contract dispute should not unnecessarily cite to the Uniform Commercial Code (U.C.C.) when American Samoa statutes and common law can be cited to the same end. Local law and precedent should be preferred to the U.C.C. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 3 (App. Div. May 11, 2011). The Fono has not adopted the Uniform Commercial Code (U.C.C). The Fono has promulgated its own abbreviated commercial code. A.S.C.A. §§ 27.1501, et seq. Courts are to address and decide contract cases relying exclusively on pertinent provision of American Samoa statutory law and applicable common law principles. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 4 (App. Div. May 11, 2011). A merchant-to-merchant open credit agreement that qualifies as a contract under A.S.C.A. §§ 27.1530-27.1532 allows the seller/lender to "charge, contract for, and receive...interest or other compensation" up to 18 percent on the open credit agreement ("business loan"/contract) pursuant to A.S.C.A. § 28.1503 (absent contract provisions or timely written notices of objection to the contrary). Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 9-10 (App. Div. March 19, 2012).

§ 6—Performance and Breach § 6(1) – Breach Generally A statement of a cause of action for breach of contract requires the pleading of (1) a contract, (2) plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff therefrom. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 15 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

It is a breach of contract when a merchant promises to send one sort of good but instead sends a nonconforming good. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 4-5 (App. Div. May 11, 2011). If a seller sends nonconforming goods, the buyer must either accept all or part of the goods, or reject them. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 4-5 (App. Div. May 11, 2011). An acceptance of goods occurs when the buyer does any act inconsistent with the seller's ownership including retaining the goods without intimating to the seller that he has rejected them. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 5 (App. Div. May 11, 2011). To recover damages related to nonconforming goods, the buyer must have provided the seller sufficient notice that something was awry with the product. Therefore determining the contract-breach on such an issue turns on whether the seller sent nonconforming goods and whether the buyer: (1) rejected the nonconforming goods; (2) accepted the nonconforming goods as they were; or (3) accepted the nonconforming goods and gave sufficient notice that the goods were nonconforming. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 5-6 (App. Div. May 11, 2011). Rightful rejection of nonconforming goods must be specific, and a buyer must make a rejection within a reasonable time. A buyer who accepts nonconforming goods must pay the contract rate for those goods. A buyer who accepts nonconforming goods, but notifies the buyer in a timely manner that there is a problem with the goods, is not prohibited from seeking certain damages, such as consequential damages. However, if the buyer does not notify the seller of the problem, the buyer cannot later seek damages in connection with nonconforming goods. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 6 (App. Div. May 11, 2011). If there is no record of a buyer rejecting a seller’s allegedly nonconforming goods (but rather evidence of an agreement for a modified contract through the buyer attempting to sell the nonconforming goods to other parties), the buyer is precluded from seeking out damages for the nonconforming. A buyer reacting in such a manner has accepted the nonconforming goods. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 6-7 (App. Div. May 11, 2011). A buyer is not precluded from seeking certain damages if it gave the seller adequate notice that nonconforming goods were received. But where the record cannot support any timely notice of nonconformity, relief under such a theory is unavailable. O.O. Enters., Inc. v. Ajit Impex, AP No. 01-09, slip op. at 7-8 (App. Div. May 11, 2011).

§ 7—Remedies § 7(1) – Statute of Limitations A breach of contract action, premised on a written contract must be brought within 10 years from the date of the breach unless "otherwise especially declared." A.S.C.A. § 43.0120(5); Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 18 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). A party defending against a claim may raise a statute of limitations defense to dismiss the claim for the partyseeking-relief's failure to file the claim within the statutory period. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 18 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). An amended pleading relates back to the date the un-amended, original pleading was filed. If the original pleading was filed before the statute of limitations period ran, then the claims contained in the amended pleading are not barred by any statute of limitation either. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 18-19 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.). A statute of limitations defense that could not inure at trial is subject to adjudication and disposal via summary judgment. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 19 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

A contract-breach claim that is not violative of this Territory’s statute of limitations is also not subject to dismissal via laches. Pac. Grading Corp. v. Constr. Servs. of Samoa, CA No. 43-02, slip op. at 20 (Trial Div. May 3, 2012) (order granting ASG’s mot. for summ. j.).

CRIMINAL LAW § 4—Specific Crimes § 4(17) – Miscellaneous Offenses A.S.C.A. § 46.4615 cannot punish members of the public for not complying with a police officer’s voluntary stop because such an interpretation of A.S.C.A. § 46.4615 would violate the U.S. and Territorial Constitutions. The constitutional avoidance doctrine supports the interpretation of voluntary stops lying outside the scope of punishment contemplated in A.S.C.A. § 46.4615 because where two interpretations of a statute where one would yield a constitutionally suspect result and the other a constitutionally tolerable result, the court will chose the constitutionally tolerable interpretations (absent clear legislative intent to the contrary). The Fono did not intend to punish members of the public who refused to participate in a voluntary police stop—such an interpretation would have absurd constitutional ramifications. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 7 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

CRIMINAL PROCEDURE § 3—Pleas § 3(2) – Court’s Duties The constitutional avoidance doctrine would normally preclude a court from raising constitutional issues on its own. However, a court reviewing a plea agreement—i.e., to make certain that the factual basis therein will satisfy the elements of a listed crime—can sua sponte raise the constitutionality of a statutory crime whose elements are potentially violative of a person’s constitutional right to be free from unwarranted government search and seizure. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 3-4 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

§ 3(3) – Sufficient Factual Basis Courts are not allowed to participate in the plea discussion process. T.C.R.Cr.P. 11(e)(1). However, the court may review the plea to verify that Defendant is pleading guilty to a set of facts which would warrant criminal sanction (that also do not violate the U.S. or Territorial Constitutions). T.C.R.Cr.P. 11(f); Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 7 (Trial. Div. July 27, 2012) (order rejecting plea agreement). A plea agreement for a criminal defendant pleading guilty to resisting arrest under A.S.C.A. § 46.4615 by fleeing from an officer’s investigatory stop must include (1) a factual basis indicating a stop was investigatory in nature, and (2) that the criminal defendant knew or should have known of an officer’s intent to perform an investigatory stop. If an A.S.C.A. § 46.4615 offense is included in a plea agreement and does not include such a factual basis, the court will reject the plea agreement. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 8-9 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

§ 5—Pre-Trial Matters § 5(1) – Generally The Fifth Amendment protects civil detainees in the custody of the United States from conditions that amount to punishment. Immigration detainees are civil detainees and should receive the same level of due process protection as pre-trial criminal detainees. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 31 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.).

§ 6—Trial § 6(5) – Self Incrimination The 5th Amendment protects the accused’s right to not be compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature. An accused may be compelled, however, by the state to produce real or physical evidence. To be testimonial, the communication must, explicitly or implicitly, relate a factual assertion or disclose information. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 6-7 (Dist. Ct. Mar. 4, 2012). Sobriety tests are carefully scripted and not designed to, nor would likely be perceived as, requiring any response from a criminal defendant. A criminal defendant’s statements during such tests are therefore voluntary, nontestimonial, and admissible. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 7 (Dist. Ct. Mar. 4, 2012). Reviewed solely under the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, and considering the totality of circumstances, the stop, detention and brief, voluntary transport to a safe location to conduct the Standardized Field Sobriety Tests would not violate a person’s U.S. Constitutional rights. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 10 (Dist. Ct. Mar. 4, 2012).

§ 7—Punishment and Sentencing § 7(1) – General Provisions Once a court renders a sentence in a criminal case, for which no appeal is taken, that criminal case ends. The criminal is then subject to the jurisdictional purview of the executive branch’s Corrections Division. A.S.C.A. §

46.2303. Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 1-2 (Trial Div. July 10, 2012) (order dismissing motion). A sentenced defendant cannot tack a civil motion for a special writ concerning his imprisonment onto his criminal case; the defendant must file a civil action or seek redress with the Corrections Division. Am. Samoa Gov’t v. Noa, CR No. 96-10, slip op. at 2 (Trial Div. July 10, 2012) (order dismissing motion).

§ 7(4) – Deportation It is the Immigration Board’s responsibility to determine whether an alien is deportable. Such determinations are made at a hearing, wherein, the alien facing deportation is entitled to be present. A.S.C.A. § 41.0605. Consequently, ASG is obligated to provide the alien, whose immigration status is at issue at the deportation hearing, with reasonable notice of the hearing, including the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1). A deportation proceeding is not required if the alien, “admits [to] being deportable because he has remained beyond the time allowed [and] voluntarily departs from American Samoa at his own expense.” A.S.C.A. § 41.0601. Bartolome v. Jkl, Inc., CA No. 30-08, slip op. at 24, 25 (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for sum. j.).

§ 10—Interrogation and Miranda § 10(2) – Custody The same protections against unconstitutional custodial interrogations of persons arrested for felonies applies to misdemeanor arrests as well. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 8 (Dist. Ct. Mar. 4, 2012). Conceivably, upon a suspected drunk-driver’s police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, the suspected drunk-driver is in custody for all practical purposes. If there is no probable cause to support such a seizure (being in custody), Article I, § 5, of the Revised Constitution of American Samoa will operate to exclude any evidence after such a seizure, including Standardized Field Sobriety Tests that indeed indicated the suspected drunk-driver had driven under the influence. REV. CONST. OF AM. SAMOA art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 19-20 (Dist. Ct. Mar. 4, 2012).

§ 10(5) – Invoking Miranda Rights If a motorist stopped by police officers is subjected to treatment that renders the motorist “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 9 (Dist. Ct. Mar. 4, 2012).

§ 10(6) – Evidence Obtained in Violation of Miranda The roadside questioning and administration of Standardized Field Sobriety Tests at a routine traffic stop do not constitute “custodial interrogation” requiring Miranda warnings to be given. Although a stopped motorist’s “freedom of action” is curtailed and some pressure may be felt by the motorist to answer the officer’s questions, in most stops the motorist believes he will soon be back on his way. Moreover, a traffic stop is normally brief and conducted in public, rather than in a “police dominated” station-house custodial interrogation setting requiring Miranda warnings. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 8-9 (Dist. Ct. Mar. 4, 2012).

§ 11—Searches & Seizures § 11(1) – Generally A traffic stop, however brief, is a seizure under the Fourth Amendment, but generally not an unreasonable seizure absent prohibited police conduct. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 5 (Dist. Ct. Mar. 4, 2012). Reviewed solely under the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, and considering the totality of circumstances, the stop, detention and brief, voluntary transport to a safe location to conduct the

Standardized Field Sobriety Tests would not violate a person’s U.S. Constitutional rights. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 10 (Dist. Ct. Mar. 4, 2012). The District Court is bound by the U.S. Supreme Court’s pronouncements concerning the parameters of protection afforded individuals under the Fourth Amendment. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 10 (Dist. Ct. Mar. 4, 2012). Where officers saw a driver perform two instances of unsafe driving; and upon pulling the driver over, the driver told one officer he consumed two beers but changed his story to admitting consumption of four to six beers to the other officer; and moreover the driver’s physical state of having red, watery eyes, an odor of alcohol on his breath, an inability to stand outside his vehicle without using the vehicle for support, and difficulty in pulling out his wallet to present identification—all of this indicates under a totality of the circumstances that the officers had probable cause to seize the driver. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 6-7 (Dist. Ct. Mar. 26, 2012). The constitutional avoidance doctrine would normally preclude a court from raising constitutional issues on its own. However, a court reviewing a plea agreement—i.e., to make certain that the factual basis therein will satisfy the elements of a listed crime—can sua sponte raise the constitutionality of a statutory crime whose elements are potentially violative of a person’s constitutional right to be free from unwarranted government search and seizure. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 3-4 (Trial. Div. July 27, 2012) (order rejecting plea agreement). Article I, § 5 of the Revised Constitution of American Samoa tracks the Fourth Amendment of the United States Constitution which states that a person cannot be searched nor seized without a warrant based upon an officer’s probable cause sworn by oath or affirmation. However, unlike the Fourth Amendment, as applied to the states, the Territory preserves, as a constitutional right, the exclusionary rule—a judicially-made rule that withholds or suppresses evidence police obtained in violation of a criminal defendant’s constitutional rights. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 5 n.3 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

The constitutional right against unwarranted search and seizure is subject to a series of judicially-developed exceptions. One such exception concerns police officer interactions with the public. There are three different categories of police officer interactions with the public each with constitutional ramifications under the Fourth Amendment of the United States: the first category is an arrest, for which the Fourth Amendment requires that the police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment “seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 5-6 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

§ 11(3) – Probable Cause for Search Warrant Where officers saw a driver perform two instances of unsafe driving; and upon pulling the driver over, the driver told one officer he consumed two beers but changed his story to admitting consumption of four to six beers to the other officer; and moreover the driver’s physical state of having red, watery eyes, an odor of alcohol on his breath, an inability to stand outside his vehicle without using the vehicle for support, and difficulty in pulling out his wallet to present identification—all of this indicates under a totality of the circumstances that the officers had probable cause to seize the driver. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 6-7 (Dist. Ct. Mar. 26, 2012).

§ 11(7) – Terry Stops & Traffic Stops The District Court takes judicial notice of the history and development of the Standardized Field Sobriety Tests. These uniform, field-testing procedures were developed by the National Highway Traffic Safety Administration (“NHTSA”) in response to high rates of vehicle crash fatalities related to impaired driving during the 1960s and 1970s. NHTSA had previously provided local police forces nation-wide with detection guides listing 20-24

examples of bad driving by a motorist predictive of driving under the influence. The follow-up S.F.S.T.s were researched and developed by NHTSA as police tools to use after a traffic stop was made to better assess whether probable cause existed to arrest a motorist for D.U.I. These tests performed by officers developing a reasonable suspicion that a stopped motorist is under the influence of alcohol or other drugs generally include the Horizontal Gaze Nystagmous Test (HGN), the 9-step Walk and Turn Test (WAT), and the One Leg Stand Test, (OLS). (The WAT and OLS tests are basically self-explanatory. The HGN test, on the other hand, relies upon studies of the effects of depressants, such as alcohol, upon a person’s central nervous system which naturally produce involuntary jerking of the eye’s iris when the effected person gazes to the side). Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 4 (Dist. Ct. Mar. 4, 2012). From a constitutional law standpoint, the Standardized Field Sobriety Tests (“S.F.T.S.s”) also further the protections afforded by the 4th Amendment. A motorist stopped for a traffic violation who exhibits some level of intoxication during his initial contact with the police, would, within the few minutes necessary to undergo testing and evaluation at the scene of the traffic stop, reasonably expect to continue on his trip, (with or without a ticket for the violation prompting the initial stop), if he successfully performs the S.F.T.S.s. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 4 (Dist. Ct. Mar. 4, 2012). A traffic stop, however brief, is a seizure under the Fourth Amendment, but generally not an unreasonable seizure absent prohibited police conduct. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 5 (Dist. Ct. Mar. 4, 2012). If a motorist stopped by police officers is subjected to treatment that renders the motorist “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 9 (Dist. Ct. Mar. 4, 2012). A traffic stop of a person, followed by a brief voluntary transport of that person in their vehicle to a safe public location to conduct the Standardized Field Sobriety Tests (“S.F.S.T.s”), under a totality of the circumstances, does not amount to an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether that person should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a Driving Under the Influence violation, a brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent Blood Alcohol Concentration results. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 11 (Dist. Ct. Mar. 4, 2012). A traffic stop of a person, followed by a brief voluntary transport of that person in their vehicle to a safe public location to conduct the Standardized Field Sobriety Tests (“S.F.S.T.s”), under a totality of the circumstances, does not amount to an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether that person should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a Driving Under the Influence violation, a brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent Blood Alcohol Concentration results. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 11 (Dist. Ct. Mar. 4, 2012). The reasonableness of seizures effectuated by a brief voluntary transport of a detained suspect in their vehicle to a safe public location to conduct Standardized Field Sobriety Tests , however, decreases in direct proportion to the proximity of the police station and the decreased reasonable expectation of the detained suspect of promptly resuming his trip. A progression of loss of access to his vehicle, keys, and drivers’ license, by a suspect, coupled with his removal from a public place into the bowels of a police station, all in the absence of probable cause for his arrest, triggers concerns under the Revised Constitution of American Samoa’s Article I, Sec. 5. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 11 (Dist. Ct. Mar. 4, 2012). Under the Territory’s “Implied Consent” statutes, (A.S.C.A. § 22.0601-.0612), motorists operating on the highway in this Territory are deemed to have consented to a chemical test of breath, blood, urine, or saliva if arrested for D.U.I. Prior to the standard breathalyzer test used for these purposes by the Department of Public Safety, the arrested driver is advised of the test, the possible administrative suspension of driving privileges in the Territory for

refusing the test, and the availability of additional (blood) testing for the driver if the B.A.C. is performed. (The driver, having been previously placed under arrest would have, according to standard police practices, also been read Miranda warnings). Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 13 n. 1 (Dist. Ct. Mar. 4, 2012). Where there is no testimony or evidence exhibiting a driver suspected of a Driving Under the Influence violation (“D.U.I.”) beyond the standard litany of “red eyes, slurred speech and odor of alcohol,” is unreasonable and will divest an officer of the probable cause necessary to arrest a person for a D.U.I. violation. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 13 (Dist. Ct. Mar. 4, 2012). The practice of routinely transporting D.U.I. suspects to police stations for in-custody “field” sobriety testing, in the absence of probable cause for arrest or other compelling, reasonable circumstances, neither significantly increases officer or suspect safety levels, nor preserves an individual’s constitutional rights against unreasonable seizure by the government. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 16 (Dist. Ct. Mar. 4, 2012). The statutes and case-law of this Territory (as well as other jurisdictions), contemplate that a driver stopped by police during a traffic stop will generally be briefly detained, issued a traffic citation or given a warning, and be allowed to resume the route to the driver’s destination. Any further detention of the driver must be, under a totality of the circumstances, reasonable, and that detention of no longer duration than necessary to promptly complete the officer’s investigation. Unlike other police-citizen encounters in non-traffic situations (where an individual might voluntarily consent to appear for police questioning at a station-house, be advised of his freedom to leave and Miranda rights, and then voluntarily waive those rights and make incriminating statements that would be admissible in court), separate and distinct considerations arise in traffic stop, detention, and D.U.I. arrest situations. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 18-19 (Dist. Ct. Mar. 4, 2012). A suspected drunk-driver’s voluntary transport to conduct field sobriety tests at a safer location resulted in being directly transported to the Central Police Station, escorted inside, placed in a room and requested to perform physical acts, Standardized Field Sobriety Tests (S.F.S.T.s), the results of which would be used as evidence against him in any subsequent prosecution for D.U.I. At or reasonably near the traffic stop scene, a suspected drunkdriver’s public performance of S.F.S.T.s would not have required prior Miranda warnings. Even incriminating statements made by a suspected drunk-driver during the performance of such tests at the scene prior to arrest would have been generally admissible in court under case-law. Further, S.F.S.T.s could also have been conducted or reconducted at a police station if the suspect had been validly arrested for D.U.I. at or reasonably near the traffic stop. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 18 (Dist. Ct. Mar. 4, 2012). Conceivably, upon a suspected drunk-driver’s police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, the suspected drunk-driver is in custody for all practical purposes. If there is no probable cause to support such a seizure (being in custody), Article I, § 5, of the Revised Constitution of American Samoa will operate to exclude any evidence after such a seizure, including Standardized Field Sobriety Tests that indeed indicated the suspected drunk-driver had driven under the influence. REV. CONST. OF AM. SAMOA art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 19-20 (Dist. Ct. Mar. 4, 2012). The District Court has repeatedly ruled in bench decisions in D.U.I. cases that a brief detention of a motorist at a traffic stop while a trained and certified D.U.I. police officer is promptly brought to the stop scene does not on its face create an unreasonable seizure of the motorist. If the officer initiating the traffic stop has an articulable basis for initiating that stop, the initial stop is constitutionally valid. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 5 (Dist. Ct. Mar. 26, 2012). After a traffic stop based on an articulable basis, if the officer develops a reasonable suspicion that the driver had consumed alcohol or other drugs and might be intoxicated, a brief detention of the driver while a certified, trained D.U.I. police officer is promptly brought to the scene to take over the case development and evaluation of factors suggesting intoxication is also reasonable under the circumstances. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 5-6 (Dist. Ct. Mar. 26, 2012). If a police-officer had seen a driver commit a moving violation and subsequently had articulable reasons to suspect that the driver was inebriated, a brief transport of the driver from the traffic stop scene to a safe, public location to

conduct Standardized Field Sobriety Tests, when warranted by the unsafe conditions prevailing at the scene, does not generally turn the detention of the driver into an arrest. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 6 (Dist. Ct. Mar. 26, 2012). Where officers saw a driver perform two instances of unsafe driving; and upon pulling the driver over, the driver told one officer he consumed two beers but changed his story to admitting consumption of four to six beers to the other officer; and moreover the driver’s physical state of having red, watery eyes, an odor of alcohol on his breath, an inability to stand outside his vehicle without using the vehicle for support, and difficulty in pulling out his wallet to present identification—all of this indicates under a totality of the circumstances that the officers had probable cause to seize the driver. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 6-7 (Dist. Ct. Mar. 26, 2012). When officers under a totality of the circumstances had probable cause to seize a driver, the driver’s performance of Standardized Field Sobriety Tests (non-testimonial evidence) in a police sub-station does not require a reading of Miranda rights as the results of those tests are non-testimonial evidence and admissible in court. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 7 (Dist. Ct. Mar. 26, 2012). It is a well-settled concept in this Territory that ASG police officers may perform an investigatory stop of any person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 8 (Trial. Div. July 27, 2012) (order rejecting plea agreement). The reasonableness of a traffic stop detention’s duration requires a “totality of circumstances” evaluation of the facts. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 10 (Dist. Ct. Mar. 4, 2012).

§ 11(14) – Application of the Exclusionary Rule The Revised Constitution of American Samoa, in Article I, Sec. 5, basically restates the language of the Fourth Amendment to the U.S. Constitution and then adds a closing sentence, “Evidence obtained in violation of this section shall not be admitted in any court.” The language is both broad and unconditional. It prohibits a court from admitting (ostensibly from any party), any evidence obtained from an unreasonable search or seizure. REV. CONST. OF AM. SAMOA art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 10-11 (Dist. Ct. Mar. 4, 2012). A traffic stop of a person, followed by a brief voluntary transport of that person in their vehicle to a safe public location to conduct the Standardized Field Sobriety Tests (“S.F.S.T.s”), under a totality of the circumstances, does not amount to an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether that person should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a Driving Under the Influence violation, a brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent Blood Alcohol Concentration results. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 11 (Dist. Ct. Mar. 4, 2012). The term “evidence” is not qualified or limited in Article I, § 5, of the Revised Constitution of American Samoa. Under this broad constitutional language, any evidence obtained from an unreasonable seizure may not be admitted in court. This language admits to no distinction between non-testimonial and testimonial evidence, nor even to voluntarily produced evidence, such as breathalyzer B.A.C. tests, if the earlier seizure of the suspect which caused this evidence to be generated was unreasonable. Notwithstanding the U.S. Supreme Court’s holdings as to types or categories of evidence which are or are not admissible at trial under the judicially created Exclusionary Rule, Article I, § 5, of the Revised Constitution of American Samoa establishes a broad constitutional guarantee that evidence, (ostensibly, all evidence), obtained from an unreasonable search or seizure is not admissible in the courts of this Territory. REV. CONST. OF AM. SAMOA art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 12 (Dist. Ct. Mar. 4, 2012). A suspected drunk-driver’s voluntary transport to conduct field sobriety tests at a safer location resulted in being directly transported to the Central Police Station, escorted inside, placed in a room and requested to perform physical acts, Standardized Field Sobriety Tests (S.F.S.T.s), the results of which would be used as evidence against

him in any subsequent prosecution for D.U.I. At or reasonably near the traffic stop scene, a suspected drunkdriver’s public performance of S.F.S.T.s would not have required prior Miranda warnings. Even incriminating statements made by a suspected drunk-driver during the performance of such tests at the scene prior to arrest would have been generally admissible in court under case-law. Further, S.F.S.T.s could also have been conducted or reconducted at a police station if the suspect had been validly arrested for D.U.I. at or reasonably near the traffic stop. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 18 (Dist. Ct. Mar. 4, 2012). Conceivably, upon a suspected drunk-driver’s police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, the suspected drunk-driver is in custody for all practical purposes. If there is no probable cause to support such a seizure (being in custody), Article I, § 5, of the Revised Constitution of American Samoa will operate to exclude any evidence after such a seizure, including Standardized Field Sobriety Tests that indeed indicated the suspected drunk-driver had driven under the influence. REV. CONST. OF AM. SAMOA art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 19-20 (Dist. Ct. Mar. 4, 2012). If a police-officer had seen a driver commit a moving violation and subsequently had articulable reasons to suspect that the driver was inebriated, transportation of the driver to a police substation, where the police officer escorted the driver inside the substation and conducted the Standardized Field Sobriety Tests therein, such practices effectively result in the driver being placed in police custody, and in the absence of probable cause for the officer to arrest, this seizure is no longer reasonable. Evidence obtained thereafter becomes inadmissible in court. REV. CONST. OF AM. SAMOA art I, § 5. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 6 (Dist. Ct. Mar. 26, 2012). When officers under a totality of the circumstances had probable cause to seize a driver, the driver’s performance of Standardized Field Sobriety Tests (non-testimonial evidence) in a police sub-station does not require a reading of Miranda rights as the results of those tests are non-testimonial evidence and admissible in court. Am. Samoa Gov’t v. McDonald, UTC No. 298980, slip op. at 7 (Dist. Ct. Mar. 26, 2012). Article I, § 5 of the Revised Constitution of American Samoa tracks the Fourth Amendment of the United States Constitution which states that a person cannot be searched nor seized without a warrant based upon an officer’s probable cause sworn by oath or affirmation. However, unlike the Fourth Amendment, as applied to the states, the Territory preserves, as a constitutional right, the exclusionary rule—a judicially-made rule that withholds or suppresses evidence police obtained in violation of a criminal defendant’s constitutional rights. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 5 n.3 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

§ 11(15) – Arrests The constitutional right against unwarranted search and seizure is subject to a series of judicially-developed exceptions. One such exception concerns police officer interactions with the public. There are three different categories of police officer interactions with the public each with constitutional ramifications under the Fourth Amendment of the United States: the first category is an arrest, for which the Fourth Amendment requires that the police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment “seizure,” but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. Am. Samoa Gov’t v. Peters, CR No. 53-12, slip op. at 5-6 (Trial. Div. July 27, 2012) (order rejecting plea agreement).

TORTS § 1—Negligence § 1(1) – Generally The elements of negligence are: (1) Duty—a duty to use reasonable care; (2) Breach—a failure to conform to the required standard of care; (3) Causation—a reasonably close causal connection between the conduct and the resulting injury; and (4) Damages—an actual loss or damage resulting to the interests of another. Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 6 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss).

§ 10—Government Tort Liability Act § 10(4) – Administrative Claim Requirement Under the Government Tort Liability Act, the court lacks subject matter jurisdiction to hear a tort claim against the government unless the claimant first exhausts the administrative remedy established under A.S.C.A. § 43.1205(a). Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 2 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). Section 43.1205(b) authorizes the Attorney General to settle administrative claims under the regulations encapsulated in A.S.A.C. §§ 43.0101-.0108. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 2 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). 28 U.S.C. § 2672, the federal counterpart to A.S.C.A. § 43.1205(b), confers authority upon regulatory agencies to settle administrative claims. It specifically requires the reviewing agency to conduct its review in accordance with regulations prescribed by the Attorney General. 28 C.F.R. § 14.4, the federal counterpart to A.S.A.C. § 43.0105, is the regulation that prescribes what information in addition to the administrative claim that the reviewing agency may require from the claimant in order to conduct its investigation. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 4 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). Federal courts have interpreted 28 U.S.C. §§ 2672 and 2675 as not incorporating 28 C.F.R. § 14.4 because of the concern that it could allow the federal agencies to indefinitely forestall valid claims against the Federal Government by requesting additional information from a claimant on grounds that the administrative claim is deficient. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 4 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). The Fono enacted the Government Tort Liability Act (“GTLA”) for the same reason Congress passed the Federal Tort Claims Act (“FTCA”): to waive the government’s sovereign immunity so as to provide those who have suffered, as a consequence of the government’s tortious conduct, with a legal avenue of redress and to hold the government accountable for its actions. It is this overriding purpose, and the textual similarities that the GTLA and the FTCA share, that ultimately carry the greatest weight. As such, the court finds federal case law interpreting the FTCA to be an appropriate and instructive source of persuasive authority for interpreting A.S.C.A. § 43.1205 and A.S.A.C. § 43.0105 and for determining whether the regulation is incorporated into the statute. A.S.C.A. § 43.1205 does not incorporate A.S.A.C. §§ 43.0101-43.0108. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 7-9 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). The High Court’s jurisdiction is still predicated on the presentment of a claim to the Attorney General. This is clearly stated in A.S.C.A. § 43.1205. Such a claim, however, is deemed presented so long as the administrative claim presented to the Attorney General (1) reasonably notifies the Attorney General of the incident and (2) includes a claim for money damages for a sum certain. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 9 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal). If the Attorney General’s Office does not respond to an administrative claim letter within three months, the court will treat that silence as a rejection of the administrative claim letter and deem that the plaintiff has exhausted his administrative remedies, which will in turn grant the court subject matter jurisdiction over a claim brought under the Government Tort Liability Act. Soloa v. Am. Samoa Gov’t, CA No. 77-07, slip op. at 10-11 (Trial Div. March 29, 2012) (order denying mot. for reconsideration of order denying mots. for sum.j. and dismissal).

§ 11—Wrongful Death A “representative” in a survival action (or wrongful death action) is either an executor or an administrator. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 3 (Trial Div. April 10, 2012) (order denying application). A “successor in interest” can be a person who has not been formally appointed as a representative or administrator. The term “successor in interest” encompasses those individuals who have received a portion of the decedent’s estate after the estate has been distributed. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 3 (Trial Div. April 10, 2012) (order denying application). An adult-decedent’s estate must undergo probate before anyone can become a “representative” or a “successor in interest” in a survival action. A.S.C.A. § 43.5002; The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 0912, slip op. at 3 (Trial Div. April 10, 2012) (order denying application). The burden is upon an applicant applying for status as a “representative” (administrator/executor) or “successor in interest” of an estate to establish the applicant is an administrator or an executor or a “successor in interest” in a probated adult-decedent’s estate. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 3 (Trial Div. April 10, 2012) (order denying application). It is unsettled whether this older ruling is still applicable in the wake of the plausibility standard in pleadings: parents of a deceased minor child can maintain a survival action against another all the way to final judgment if the parents, a reasonable time after final judgment, probate their child’s estate. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 4 n.1 (Trial Div. April 10, 2012) (order denying application). In the estate of an adult-decedent, where the action was filed after the adult-decedent’s passing, only an administrator, executor, or a “successor in interest” has the right (locus standi) to bring a survival action on the decedent’s behalf. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 4-5 (Trial Div. April 10, 2012) (order denying application). Where an applicant applying for status as a “representative” or “successor in interest” of an adult-decedent’s estate provides nothing indicating the applicant is a legal administrator, executor, or “successor in interest” of the adultdecedent’s estate, the application will be denied. The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. at 5 (Trial Div. April 10, 2012) (order denying application).

WORKER’S COMPENSATION § 2—Commission Procedure The Workmen’s Compensation Procedures and Claims chapter, A.S.C.A. §§ 32.0601-32.0674, lays out the procedure by which workmen’s compensation orders are issued, challenged, and reviewed. Within one year of an injury, a claimant must file a claim with the Workmen’s Compensation Commission (“WCC”). A.S.C.A. § 32.0627. The Commissioner of the WCC “may transfer such a case to any member of the Commission for the purpose of making investigation...or taking such other necessary action therein as may be directed, for the primary purpose of creating a record for disposition by the Administrative Law Judge in accordance with A.S.C.A. § 32.0653.” A.S.C.A. § 32.0629(a). The Commissioner or his designee may also decide to pursue settlement with the claimant, but, if after 45 days there is no settlement, the Commissioner or his designee “forward[s] the claim to the Administrative Law Judge for a decision to be made in accordance with A.S.C.A. 32.0653.” A.S.C.A. § 32.0629. The claim then comes before an Administrative Law Judge (“ALJ”), who makes a decision on the claim, issuing a workmen’s compensation order pursuant to A.S.C.A. §§ 32.0635-32.0646. The ALJ then files this workmen’s compensation order with the Office of the Commissioner. A.S.C.A. § 32.0650. The “order becomes effective when filed in the Office of the Commissioner and, unless proceedings for the suspension or setting aside of such order are instituted, becomes final at the expiration of the thirtieth day thereafter.” A.S.C.A. § 32.0651. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 3-4 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction).

§ 8—Judicial Review The judicial review of an Administrative Law Judge’s workmen’s compensation order is limited. However, to challenge the order, an aggrieved party must seek “injunction proceedings” with the High Court of American Samoa “against the Commissioner” to “suspend[] or set aside, in whole or in part,” the workmen’s compensation order. A.S.C.A. § 32.0652(a). The phrase “High Court” in A.S.C.A. § 32.0652(a) means the Trial Division of the High Court of American Samoa. Therefore, the judicial review of a workmen’s compensation order, issued by the ALJ, but filed with the Commissioner’s Office, requires an appeal, if any, to the Trial Division of the High Court. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 4 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction). Where a workmen’s compensation claim filed with the Workmen’s Compensation Commission was then sent to the Administrative Law Judge, who then issued a workmen’s compensation order, that order does not become effective until the Administrative Law Judge files the workmen’s compensation order with the Office of the Commissioner. Regardless, after the order is filed with the Office of the Commissioner, the workmen’s compensation order can be reviewed within thirty days only through injunction proceedings in the Trial Division of the High Court, whereby the compensation order may be reviewed again on a narrow basis by the Appellate Division of the High Court. The order can be become final if no one applies for injunction proceedings in the Trial Division within thirty days after the order’s filing with the Office of the Commissioner. At any rate, the Appellate Division does not review a workmen’s compensation order that did not follow the above-outlined procedure and any such order “appealed” to the Appellate Division without following the above-outlined procedure shall be dismissed for lack of subject matter jurisdiction. Am. Samoa Gov’t v. Tinitali., AP No. 02-11, slip op. at 5-6 (App. Div. Aug. 3, 2012) (order dismissing appeal for lack of subject matter jurisdiction).