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Unpublished Cases

Unpublished Cases

Am. Samoa Gov’t v. Noa


 

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. § 46.2303Some 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.

Bartolome v. JKL, Inc.


[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


[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**]

 

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**] 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. §§ 1.0101-47.0804.

 

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:

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 self-governance. 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 self-governance 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. 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 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 well-established 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 well-settled constitutionally protected rights of the two plaintiffs.[8] Consequently, at this point, we believe qualified 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) (“Pre-trial 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 [**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 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.



[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 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 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.

 

[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.

 

[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] See n.4, supra.

 

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

 

[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 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.

[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.

 

[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)).

Pac. Grading Corp. v. Constr. Servs. of Samoa


[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, non-specific 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


[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 party-seeking-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. 43-02 (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]

 

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`ilima[11] 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).

 

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 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 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 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 notice-pleading 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 Cross-claim 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.

 

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 party-seeking-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)).

 

[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 1171-72.

 

[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.



[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.

[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.

[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).

[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).

[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).

[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.

The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t


[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 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.



[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. 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. Merriam-Webster’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.

Soloa v. Am. Samoa Gov’t


[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] 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.


[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.

 

[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.

 

[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.



[1] A.S.C.A. § 43.1205(a) provides:

 

(a)           An action may not be instituted upon a claim against the government for money dam ages for damage to or loss of property, or per sonal 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 Gen eral 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 claim ant 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 accord ance with regulations prescribed by the Gover nor, 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 negli gent or wrongful act or omission of any em ployee 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.

 

[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.

 

Vergara v. Am. Samoa Gov’t


[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 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. 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.



[1] Vergara should not confuse constitutional violations as inherent grounds for money damages.

[2] 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 Govt, 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.

[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 Govt, 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.

Am. Samoa Gov’t v. McDonald


[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.


[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.


[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 tail-lights 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 tail-lights’ 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]

 

ORDER

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



[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.

[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.

Am. Samoa Gov’t v. Miscoi


[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, non-testimonial, 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.


[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 drunk-driver’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 re-conducted at a police station if the suspect had been validly arrested for D.U.I. at or reasonably near the traffic stop.


[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.

 

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 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] 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 4th 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 4th, 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 6th 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 4th 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 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, 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.



[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.

 

[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.

Unpublished Cases


The court often releases cases that have not yet been published in the ASRs, yet still contain important matters of law. Cases of this nature will be posted on this page as they are received by the courts. Keep in mind that there currently are no rules regarding citing unpublished cases and attorneys should cite these at their own risk. All files are in pdf.

 

Appellate Division

Solomuli v. American Samoa Gov’t, HCAP 04-10 (App. Div. 2011)

Lancaster v. Board of Higher Education, HCAP 05-07 (App. Div. 2011)

O.O. Enterprises, Inc. v. Ajit Impex, HCAP 01-09 (App. Div. 2011)

American Samoa Gov’t v. Tuavale, HCAP 07-09 (App. Div. 2011)

Metro Samoa v. Bianco Textiles, HCAP 10-09 (App. Div. 2012)

 

Trial Court

Pacific Grading Corp. v. Construction Services of Samoa, Inc., Order Granting American Samoa Government's Motion for Summary Judgment, HCCA 43-02 (May 3, 2012)

 

District Court

American Samoa Gov't v. McDonald, UTC 298980 (Dist. Ct. 2012)

American Samoa Gov't v. Miscoi, UTC 286246 (Dist. Ct. 2012)