TAUAILAUTI FALETOGO, JR., Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 17-00
(CR No. 11-00)
February 20, 2002
[1] An appellate court will not set aside a trial court’s findings of fact in
the absence of clear error.
[2] To apply the excited utterance exception to a hearsay statement, the
trial court must make a preliminary factual determination that the
declarant was so excited or distraught at the moment of the statement that
he or she did not reflect or have opportunity to reflect on what was said.
[3] The trial court’s ruling on an excited utterance exception will not be
disturbed on appeal unless the facts on which it relied are not supported
by a preponderance of the evidence
[4] For a statement made at the scene of the crime to be admissible under
the excited utterance exception, it must relate to a “startling event,” be
instinctive, and spontaneous, and not be deliberate or retrospective.
[5] Circumstances supported trial court’s admission of appellant’s wife’s
under the excited utterance exception where wife had frightened
demeanor, had recently been involved in confrontation, and had made
excited call to the police.
[6] Circumstances supported trial court’s decision not to admit
appellant’s self-serving statement under the excited utterance exception
where the statement came several minutes after he knew he was “in
trouble”, and where
appellant’s statement was not entirely
“spontaneous” but, rather, in response to questioning.
[7] The speaker’s mental state, not the nature of the statement, is the
crucial factor in applying the excited utterance exception to the hearsay
rule.
1
[8] There is only one species of Marijuana for the purposes of criminal
possession statutes
[9] The legislative intent of A.S.C.A. § 13.1001 was to criminalize
possession of any type of marijuana.
[10] Where Appellant’s self-serving statement was kept out of evidence
as hearsay, he was properly prevented from arguing such evidence during
closing argument. However, he nonetheless could argue the absence of
any confession or admission.
[11] If, upon review of the facts, it is determined that a rational trier of
fact could find guild beyond reasonable doubt, the verdict must stand.
Before: RICHMOND, Associate Justice, WARD,* Acting Associate
Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate
Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Assistant Attorney General
OPINION AND ORDER
Procedural History
Appellant was tried by jury in the Trial Division of the High Court from
August 22 to 25, 2000, for the charge of possession of a controlled
substance. The jury returned a guilty verdict. On October 13, 2000,
appellant was sentenced to 18 years in prison. Appellant moved for a
new trial on October 3, 2000, and this motion was denied on November
28, 2000. On December 1, 2000, appellant filed a notice of appeal. Oral
argument was heard on December 5, 2001.
Standard of Review
[1] An appellate court will not set aside a trial court’s findings of fact in
the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v. American
Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). The test is not
whether facts in the record may support a decision for the appellant, but
whether sufficient evidence supported the decisions in the trial court. Id.
Discussion
*
Hon. John L. Ward II, District Court Judge, District Court of American
Samoa, by designation of the Secretary of the Interior.
2
Appellant has raised five points of alleged error in his appeal. The first
two involve hearsay statements. The third involves the court’s decision
not to allow expert testimony concerning variants of the contraband. The
fourth involves the court not allowing discussion in closing arguments
concerning the hearsay statement excluded in point two. The final point
is a challenge as to whether sufficient evidence was produced to convict
beyond a reasonable doubt.
Appellant’s first two points of alleged error are challenges to trial court
decisions concerning hearsay statements. In the first, appellant argues
that a police officer’s testimony as to a specific statement made by
appellant’s wife concerning possession of contraband was allowed under
the excited utterance exception in error. In the second, appellant argues
that a police officer’s testimony as to the statements made by appellant at
the time of the arrest was not allowed under the excited utterance
exception in error.
[2-4] To apply the excited utterance exception to a hearsay statement, the
trial court must make a preliminary factual determination that the
declarant was so excited or distraught at the moment of the statement that
he or she did not reflect or have opportunity to reflect on what was said.
U.S. v. McLennan, 563 F.2d 943, 948 (9th Cir. 1977). The trial court is
vested with “reasonable discretion” in determining whether statements
come within the excited utterance exception. People v. Farmer, 765
P.2d 940 (Cal. 1989); People v. Provencio, 258 Cal. Rptr. 330 (Cal.
App. 1989) (the trial court’s ruling on an excited utterance exception will
not be disturbed on appeal unless the facts on which it relied are not
supported by a preponderance of the evidence). Of course, the facts
upon which the trial court relies must support its acceptance or denial of
the exception, based upon the exception’s requirements. Lovett v. State,
491 So. 2d 1043 (Ala. 1986) (for a statement made at the scene of the
crime to be admissible under excited utterance, it must relate to a
“startling event,” be instinctive, and spontaneous, and not be deliberate
or retrospective).
[5] Regarding appellant’s first point of contention, as discussed above,
the standard of review requires that the preponderance of the evidence
support the facts upon which the trial court relied. Showing the facts
could plausibly have supported another finding will not overturn the trial
court’s previous decision. The trial court allowed the testimony as to the
hearsay statement of appellant’s wife upon the evidence of the
surrounding circumstances—the wife’s frightened demeanor, a recently
occurred violent confrontation, an excited call to the police. The
preponderance of the evidence supports these facts and the trial court was
within its discretion to rely upon them in applying the excited utterance
exception.
3
[6] Regarding appellant’s second point of contention, the trial court
denied application of the exception upon two factors: (1) appellant’s
statement to the police came several minutes after he knew he was “in
trouble” while the police were searching the premises, giving him time
and motive to fabricate, and (2) appellant’s statement was in a sense a
response to questioning, and not entirely “spontaneous” in the sense of
being purely self-generated.
As to the first factor, the trial court did not act outside of its discretion in
holding that the notice appellant was on from the moment the police
arrived provided time to reflect and fabricate. Appellant can plausibly
argue that a “startling occurrence” was continuing throughout the police
visit, but the trial court held otherwise, and the evidence does not clearly
outweigh the trial court’s finding. In fact, the preponderance of the
evidence supports the trial court’s theory that appellant had sufficient
time and motive to fabricate his response. Certainly, the evidence
supports this theory and this likelihood removes the inherent reliability of
the statement, which is necessary for the excited utterance exception to
apply.
[7] As to the second factor, the fact that a statement was made in
response to questioning suggests deliberation, though it does not
preclude applying the excited utterance exception. Farmer, 765 P.2d
940. Appellant’s statement was self-serving, given the circumstances
under which it was made. However, the speaker’s mental state, not the
nature of the statement, is the crucial factor in applying the exception.
Id.; People v. Hughey, 240 Cal. Rptr. 269 (Cal. App. 1987)
(“spontaneous” does not mean the statement was made at the time of the
incident, merely that it was made in circumstances such that it was made
without reflection).
While appellant’s argument that his response to being confronted with
the bag was made without reflection—and sprung from his startled
mental state—is certainly plausible, the preponderance of the evidence
supports the facts on which the trial court reasonably relied. Appellant’s
statement was made in response to questioning (confronting him with the
bag), evidence of reflection. The trial court was within its discretion to
base its decision on this evidence.
Appellant’s third point arguing alleged error concerns the trial court’s
refusal to allow expert testimony as to the different species of marijuana,
and that the police tests could not distinguish one species from another.
Appellant argues that this information as relevant as the statute under
which he was charged mentions only one species of marijuana—
Cannabis Sativa L. A.S.C.A. § 13.1001(h). Accordingly, appellant
4
urges that the prosecutor’s failure to establish which species of marijuana
was found in his possession should cause failure of the government’s
case, and that testimony establishing this position should have been
allowed.
[8-9] Appellant’s argument has been raised and rejected in the past. The
Trial Division ruled on the issue of marijuana “species” in America
Samoa Government v. Tavili (aka) Stucka, 1 A.S.R.2d 72 (Trial Div.
1983). As that court made clear, “the United States Supreme Court has
flatly held that there is only one species of Marijuana” for the purposes
of possession statutes, citing Leary v. U.S., 395 U.S. 689 (1957). “The
term Cannabis Sativa L. must be construed as a general term which
includes all plants popularly known as Marijuana that contain the toxic
agent THC.” Tavili, 1 A.S.R.2d at 72; see also U.S. v. Walton, 514 F.2d
201 (D.C. Cir. 1975); U.S. v. Honneus, 508 F.2d 566 (1st Cir. 1974).
The Tavili court correctly pointed out that the legislated intent of
A.S.C.A. § 13.1001 was to criminalize possession of any type of
marijuana. Accordingly, the testimony of appellant’s witness was
irrelevant and properly excluded.
Appellant’s fourth point of alleged error is tied closely to the second.
Appellant argues that the trial court erred when it did not allow
discussion of appellant’s hearsay statement during the closing argument.
The discussion and authorities discussed above address the statement
itself—the trial court properly prevented the hearsay statement from
coming into evidence. Accordingly, as the statement was not in evidence,
appellant did not have the right to discuss the statement in argument to
the jury.
[10] Appellant was not prevented from arguing the absence of any
confession or admission, and was certainly not prevented from
challenging the sufficiency of the government’s proof. However, in
arguing whether there was ample proof of a connection between
appellant and the contraband, appellant was certainly not free to discuss
facts not properly introduced into evidence. To allow such argument
would flaunt the very purpose of the rules of evidence.
Appellant’s fifth, and final argument of reversible error is the catchall
assertion that insufficient evidence was presented to prove guilt beyond a
reasonable doubt. The most telling evidence indicates otherwise.
Appellant was found alone at home. Marijuana was found next to where
he had been sitting. More marijuana was found in a bag in the yard.
Appellant’s driver’s license was found in this bag.
[11] Beyond a reasonable doubt should not be treated as an impossible
hurdle—it is not “beyond all doubt.” See, e.g., American Samoa Gov’t v.
5
Sale Uo, 4 A.S.R.2d 14 (Trial Div. 1987) (burden of proof beyond a
reasonable doubt in criminal cases does not prohibit trier of fact from
drawing inferences from the evidence). If, upon review of the facts, it is
determined that a rational trier of fact could find guild beyond
reasonable doubt, the verdict must stand. Jackson v. Virginia, 443 U.S.
307, 319 (1979). Contraband was found both where appellant had been
in the living room and in appellant’s yard—with his driver’s license in
tow. A rational review of these facts could certainly lead to a finding of
guilt without reasonable doubt. The jury as the finder of fact did not err.
Conclusion
The trial court determined that the appellant’s wife’s statement to the
police met the requirements of the excited utterance exception, and that
the defendant’s statement did not. It follows that the trial court did not
err in disallowing appellant’s discussion of the excluded statement during
closing argument. The trial court also determined that the appellant’s
expert witness testimony was irrelevant according to application of the
relevant law. These decisions were within the trial court’s discretion, and
sufficient evidence supported these findings. Finally, the jury had
sufficient evidence to rationally determine there was no reasonable doubt
as to the essential elements of the crime. Accordingly, appellant’s
conviction is affirmed.
It is so Ordered.
*********
6
JOE PEDRO, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 18-00
(CR No. 7-97)
March 13, 2002
[1] The double jeopardy clause of the Fifth Amendment applies to
alterations in sentencing.
[2] At the core of the double jeopardy clause is the principle that a
defendant must not be punished more than once for the same offense.
[3] Misconduct by a probationer who has served a period of detention
but not completed his full term of probation may be sanctioned by the
supervising court, and may be required to serve all or part of the
remaining probation term in detention.
[4] The “term” of probation is the length of a defendant’s probation as
determined by the sentencing court within the maximum limits
established by statute.
[5] “Conditions” of probation are those requirements established by the
court for the defendant to follow during part or all of the term of
probation.
[6] Detention during the term of probation is designated by statute as a
permissible condition of probation.
[7] Conditions of probation may generally be revoked or modified at any
time by the court.
[8] Where a defendant violates a condition of probation prior to the
expiration or termination of his probation term, the court may revoke
probation and either require execution of a previously suspended
sentence, impose an authorized sentence upon a defendant, or continue
the defendant on probation with existing, modified or enlarged conditions
of probation.
7
[9] The statutes do not provide any clear grant of authority for the courts
to enlarge a probation terms.
[10] Unless earlier terminated by the court, the term of probation
generally expires at the end of its duration.
[11] The law authorizes the court under certain circumstances to
discharge a defendant from the conditions of probation prior to the
expiration of his term of probation.
[12] A.S.C.A. § 46.2209 only allows modification or enlargement of
conditions of probation, not the length of the term of probation.
[13] The statutory powers of the court to enforce conditions of probation
must be initiated (or made manifest) prior to the expiration of the term of
probation.
[14] Probation cannot remain “conditional” beyond the maximum term.
[15] Where parole has been revoked, the parole violator serves not only
the balance of his unexpired prison term but also, as an additional prison
term, all of his or her parole term.
Before RICHMOND, Associate Justice, WARD,* Acting Associate
Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate
Judge.
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Asst. Attorney General
ORDER AND OPINION
Procedural History
On June 3, 1997, appellant pled guilty to one count of rape in violation
of A.S.C.A. § 46.3604(a)(2), as a Class B felony. As such, the offense is
punishable by a sentence of imprisonment of not less than five years and
not more than 15 years, in accordance with A.S.C.A. § 46.3604(b) and
A.S.C.A. § 46.2301(2). On June 27, 1997, appellant was sentenced to 10
years’ imprisonment. Execution of the sentence was suspended, and
appellant was placed on a five-year term of probation.
The probation was under certain conditions. Appellant was to serve the
*
Hon. John L. Ward II, District Court Judge, District Court of American
Samoa, by designation of the Secretary of the Interior.
8
first 30 months in detention, at the end of the detention period depart and
remain outside of the Territory during the balance of the probation term,
and conduct himself as a law-abiding citizen.
Appellant departed the Territory in August of 1999 after completing the
30-month detention period. However, he was found in the Territory on
July 28, 2000, in violation of the “remain outside” condition of his
probation. On August 11, 2000, appellant admitted to violating the
conditions of his probation. On September 7, 2000, the trial court
modified or enlarged the detention condition of appellant’s probation by
requiring him to serve an additional 30 months of detention.
On September 18, 2000, appellant moved for reconsideration or new trial
with respect to the September 7 modification. The trial court denied this
motion on December 5, 2000, and this appeal followed.
Discussion
Appellant raises two issues of error. He first argues that the imposition
of additional detention time within his term of probation constitutes a
double jeopardy violation of the Fifth Amendment of the U.S.
Constitution and the comparable provision set forth in Article I, Section
6 of the Revised Constitution of American Samoa. Appellant also
contends that application of the September 7, 2000 modification will
create a period of detention beyond the original five-year term of
probation, purportedly a statutory violation.
A. Double Jeopardy
[1-2] As both parties agree, the double jeopardy provision of the U.S.
CONST. AMEND. V applies to alterations in sentencing. United States v.
Benz, 282 U.S. 304 (1930). At the core of the double jeopardy clause,
however, is the principle that a defendant must not be punished more
than once for the same offense. See, e.g., Brown v. Ohio, 432 U.S. 161
(1977); North Carolina v. Pearce, 395 U.S. 711, 718 (1969).
Appellant’s argument fails this test. The trial court’s order of September
7, 2000, did not alter the punishment for appellant’s conviction for rape,
and thus he was not punished more than once for the same offense.
We characterize the arguments advanced by appellant’s counsel in his
opening brief as “good paper spoilt” and are left to speculate as to why
and how he perceives that the double jeopardy prohibitions apply to the
facts of this case. We suspect counsel was intending to argue that
because a prisoner who has served his term of imprisonment has
constitutional protection against that sentence being later expanded by
the sentencing court, a probationer under a court monitored revocable
9
and conditional term of probation may reasonably expect his condition of
detention, once served, will likewise not be expanded by the sentencing
court.
[3] We find the facts of this case do not support appellant’s novel legal
position. Rather, a closer analogy would be to that of a defendant who
has served the prison term of his sentence of imprisonment and was
released on parole subject to certain conditions, and who then violated
the conditions of his release from confinement. In response to such
violations, the parole board may revoke the defendant’s parole and
reincarcerate him to serve out the balance of his original sentence of
imprisonment. Under the applicable statutes, misconduct by a
probationer who has served a period of detention but not completed his
full term of probation may likewise be sanctioned by the supervising
court, and the probationer may be required to serve all or part of the
remaining probation term in detention.
We agree with and therefore affirm that part of the trial court’s holding
the double jeopardy provisions of the US. Constitution and the Revised
Constitution of American Samoa do not apply to the facts of this case.
We next consider appellant’s claim that a condition of probation may not
extend beyond completion of appellant’s maximum legal probation term
of five years.
B. Detention beyond the Probation Term
Appellant next ascribes error to the trial court’s decision to impose an
additional 30 months’ detention, the completion of which will extend five
months and some days beyond the end of the original five-year term of
probation imposed by the trial court.
[4-9] Before discussing this issue, we note that the continuing use of the
inexact phrase “terms and conditions of probation” has caused some
confusion among defendants, the general public, and the bar. The “term”
of probation is the length of a defendant’s probation as determined by the
sentencing court within the maximum limits established by statute.
“Conditions” of probation are those requirements established by the court
for the defendant to follow during part or all of the term of probation.
Detention during the term of probation is designated by statute as a
permissible condition of probation. By statute, conditions of probation
may generally be revoked or modified at any time by the court. In those
specific cases where a defendant violates a condition of probation prior
to the expiration or termination of his probation term, the court may
revoke probation and either require execution of a previously suspended
sentence or impose an authorized sentence upon a defendant, or may
continue the defendant on probation with existing or modified or
10
enlarged conditions of probation. The statutes do not provide any clear
grant of authority for the court to enlarge the probation term, which,
unless earlier terminated by the court, generally expires at the end of its
duration. A more detailed analysis follows.
The statutes governing the trial court’s authority to impose a term of
probation upon a defendant convicted of a crime in the Territory are
found in A.S.C.A. § 46.2201-.2215. Only one section in the probation
statutes—A.S.C.A. § 46.2206 Detention condition of probation—has
been amended by the Legislature since enactment in 1979. Originally, §
46.2206 authorized a 60-day maximum period of detention as a condition
of probation in felony cases. The Legislature increased the maximum
period in 1983 from 60 days to one year. The Legislature in 1987
enacted the present language of the statute, which now limits detention of
a defendant on probation for a felony conviction to no more than onethird of the maximum term of imprisonment which could be imposed by
the trial court for that particular felony, or 15 years when the maximum
term prescribed is life imprisonment. A.S.C.A. § 46.2206(2).
Appellant bases this allegation of error on the language in A.S.C.A. §
46.2206 as last amended, which allows the trial court to impose “a
condition of probation that the defendant submit to a period of detention
in an appropriate institution at whatever time or intervals within the
period of probation, consecutive or nonconsecutive, the court shall
designate.” A.S.C.A. § 46.2206 (emphasis added). Appellant argues
that because the original five-year term of probation was not altered by
the trial court, the enlargement of the detention period to extend beyond
his original five-year term of probation is prohibited by this language.
[10] The applicable sections of the probation statutes, for the purpose of
this inquiry, may be grouped under two main and one minor heading.
A.S.C.A. §§ 46.2204-.2207 contain provisions generally applicable when
the trial court imposes a probated sentence. A.S.C.A. § 46.2208
specifically authorizes the court under certain circumstances to discharge
a defendant from the conditions of probation prior to the expiration of his
term of probation. A.S.C.A. §§ 46.2209-.22l5 address the powers and
procedures of the trial court in those situations where, as in the instant
case, the defendant has violated a condition of his probation.
Appellant’s position implicitly relies upon the statutory language in the
first group of statutes addressing the imposition of the probated sentence,
particularly A.S.C.A. § 46.2204(a)(1) which, standing alone, appears to
limit a term of probation for a felony conviction to “a term of years not
less than 1 year and not to exceed 5 years for a felony.” This maximum
term limit of probation must, however, be interpreted in light of the
preceding subsection which modifies its application. A.S.C.A. §
11
46.2204(a) prefaces subsection (1), stating that “[u]nless terminated
under 46.2207 through 46.2215, the terms during which probation shall
remain conditional and be subject to revocation are:” (emphasis added)
[11] Because this case does involve probation violation proceedings
under A.S.C.A. §§ 46.2209-.2215, we need not fully consider the balance
of subsection (a) above except to note it facially limits conditional and
revocable terms of probation to not more than five years for felonies.
Whether or not this language would therefore preclude a trial court from
imposing a term of probation in excess of five years for a felony, that was
either non-conditional or non-revocable after its fifth year, must await a
case presenting those particular facts to be determined.
This case must be reviewed under the beginning clause of A.S.C.A. §
46.2204(a), “[u]nless terminated under 46.2207 through 46.2215.” The
Legislature’s use of the word “terminated” and reference to the last nine
sections of the probation statutes do not present, on their face, a clear
exception to the limits of probation terms found in the balance of that
subsection. Although “termination” is used in a specific sense in
A.S.C.A. § 46.2208, under which the trial court, with good cause, may
truncate the term of probation prior to the expiration date of the imposed
term of probation, the Legislature obviously intended “terminated,” as
used in § 46.2204(a), to have a broader meaning than the “termination
and discharge” provision of § 46.2208. Otherwise, only that section,
rather than nine other sections of law, would have been referenced. This
strongly indicates the Legislature intended “terminated” to be used in its
broader sense to include both “termination and discharge,” which
relieves a defendant from his probation with no further punishment, and
“revocation” of probation, which subjects the defendant to regular
institutional confinement to serve any balance owing on his sentence
from the trial court.
[12] As we understand the trial court’s decision in this matter, the court
relied upon the special procedures and powers of the sentencing court in
conducting hearings with respect to defendants arrested for violations of
probation, found in A.S.C.A. § 46.2213, when enlarging appellant’s
period of detention to the maximum statutory limit of five years for this
offense. Although that language does provide for somewhat different
procedures for a trial court presented with a probation violator, we do not
find that these procedures alter the limited options facing the court in
probation revocation hearings as set forth in A.S.C.A. § 46.2209. Under
§ 46.2209 the trial court may continue the probationer “on the existing
conditions, with or without modifying or enlarging the conditions, or, if
the continuation, modification or enlargement is not appropriate, may
revoke probation and order that any sentence previously imposed be
executed.” Notwithstanding the special proceedings under § 46.2213, §
12
46.2209 only allows modification or enlargement of conditions of
probation, not the length of the term of probation.
As originally imposed by the trial court on June 27, 1997, execution of
appellant’s 10-year sentence for felony rape was suspended, and
appellant was placed on the five-year maximum period of a conditional
and revocable term of probation. Appellant was required by conditions of
probation imposed by the court to serve a 30-month detention period
(well within the maximum period of one-third of the maximum 15-year
prison sentence authorized by statute for this offense), to depart the
Territory immediately after the detention period (which, with credit for
time served, occurred in August 1999) and not return to the Territory
during the balance of the five-year probation term, and to be a law
abiding citizen.
Appellant served his detention period and departed the Territory in
August 1999, only to return some months later and be arrested on July
28, 2000, well before the five-year period of conditional and revocable
probation was to expire on June 26, 2002. After a hearing conducted
under A.S.C.A. § 46.2213, the trial court modified or enlarged
appellant’s condition of detention to an additional 30 months with credit
for time served since the arrest in July 2000. As this action does not
involve an imposition of sentence of imprisonment, the trial court
correctly denied appellant’s demand to reduce the period of the probation
detention condition for all or part of the time appellant had been on
probation. A.S.C.A. § 46.2209.
Clearly, the trial court sought the delicate balance between punishing this
probation violator while showing leniency by enlarging or modifying the
detention condition of his term of probation rather than revoking
probation and requiring appellant to serve the balance of his 10-year
sentence of imprisonment. However, under the specific facts of this case,
the particular sentence and probationary term, and the conditions
imposed, the enlarged detention condition of probation may not exceed
the lawful expiry date of appellant’s five-year term of probation.
[13-14] The trial court imposed the maximum felony term of probation
of five years ‘during which probation shall remain conditional and
subject to revocation.’ A.S.C.A. § 45.2204(a). The statutory powers of
the court to enforce conditions of probation must be initiated (or made
manifest) prior to the expiration of the term of probation. See A.S.C.A. §
46.2215. Because the trial court may not extend the maximum term of
appellant’s five-year probation, it will lose statutory authority to enforce
the enlarged condition of detention at the conclusion of the term of
probation. As a matter of law, appellant’s probation cannot remain
“conditional” beyond the maximum term.
13
[15] The trial court, on remand, may either limit its enlargement of
appellant’s period of detention condition to the expiration date of the
probationary term or earlier, or may revoke his probation and require
execution of the imposed but suspended sentence of 10-years’
imprisonment, which with time served credited, would afford appellant
mandatory parole sometime in September 2004, unless earlier paroled by
the parole board. We note, however, and draw appellant’s attention to
the fact that unlike the case of a probation violator, the Legislature has
specifically provided that upon revocation of parole, the parole violator
serves not only the balance of his unexpired prison term but also, as an
additional prison term, all the parole term. A.S.C.A. § 46.2308(e).
Order
Appellant’s appeal claiming double jeopardy is denied. His appeal based
on the probation statutes is granted. The portion of the additional 30
months’ detention period extending beyond the five-year probation term
is set aside, and this case is remanded to the trial court to impose
consequences of appellant’s violation of the departure condition of his
probation consistent with this opinion and order.
It is so Ordered.
*********
14
SUAFALA WILLIAMS, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 4-00
March 13, 2002
[1] An appellate court will not set aside a trial court’s findings of fact in
the absence of clear error.
[2] In reviewing a trial court’s findings of fact, the test is not whether
facts in the record may support a decision for the appellant, but whether
sufficient evidence supported the trial court’s decision.
[3] A.S.C.A. § 13.1022 excludes probation from the court’s sentencing
options.
[4] The standard of beyond a reasonable doubt is not treated as an
impossible hurdle.
[5] If, upon review of the facts, it is determined that a rational trier of fact
could find guild beyond reasonable doubt, the verdict must stand.
[6] Where officer-witness testified regarding his many years of
experience in narcotics investigations, including over sixty narcotics
cases, and his training in visual, microscopic and chemical identification
of marijuana, such was sufficient to establish witness’ expertise in illicit
drug identification and testing, and the reliability of his testimony.
[7] Credibility of witnesses is uniquely a matter for determination by the
trier of fact.
Before RICHMOND, Associate Justice, WARD,* Acting Associate
Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate
Judge.
*
Honorable John L. Ward, II, Judge, District Court of American Samoa,
serving by designation of the Secretary of the Interior.
15
Counsel: For Appellant, Bentley C. Adams III, Asst. Public Defender
For Appellee, John W. Cassell, Assistant Attorney General
OPINION AND ORDER
Appellant Suafala Williams appeals his convictions of two felony counts
of possession of a controlled substance, one involving methamphetamine,
the other marijuana, in violation of A.S.C.A. § 13.1022, and of one
misdemeanor count of discharge of a firearm, in violation of A.S.C.A. §
46.4231. Appellant petitions this Court to review two issues: (1) whether
the trial court has discretion to consider different sentencing options
under the drug possession statute, A.S.C.A. § 13.1022; and (2) whether
the evidence was sufficient to convict appellant of the marijuana
possession and of discharge of a firearm.
Standard of Review
[1-2] An appellate court will not set aside a trial court’s findings of fact
in the absence of clear error. A.S.C.A. § 46.2403(b); Toleafoa v.
American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994). “[T]he
test is not whether facts in the record may support a decision for the
appellant, but whether sufficient evidence supported the trial court’s
decision.” Id.
Factual and Procedural Background
Shortly before 2:00 A.M. on August 21, 1999, outside the Koreana
Lounge near Atu`u, police officers observed the appellant raise his hand
into the air holding an object and then saw a flash of light and heard a
gun shot. The appellant fled on foot from the police and was caught and
apprehended with a .22 caliber automatic pistol in his possession. A
lawful search subsequent to appellant’s arrest found him in possession of
marijuana and methamphetamine, two controlled substances.
Appellant was charged on August 25, 1999, with possession of
methamphetamine (Count I), possession of marijuana (Count II), assault
in the first degree (Count III), and discharge of a firearm (Count IV).
The case was tried before a jury on February 9th, 10th, and 11th, 2000.
The jury convicted appellant on Counts I, II, and IV. On February 23,
2000, appellant was sentenced to 10 years’ imprisonment as to Count I,
10 years’ imprisonment as to Count II to be served concurrent with the
sentence on Count I, and one year imprisonment as to Count IV to be
served consecutively. On March 7th, 2000, appellant filed a motion for
reconsideration or new trial. On April 22, 2000, the motion was denied.
Appellant filed a notice of appeal on May 1, 2000.
16
Discussion
A. Trial Court’s Sentencing Options under A.S.C.A. § 13.1022
Appellant alleges error by the trial court in its construction of the
mandatory sentencing provision of A.S.C.A. § 13.1022, the possession of
a controlled substance statute. He urges this Court to interpret the
amended sentencing language of this statute in light of the standard court
dispositional options as outlined under A.S.C.A. § 46.1902, thereby
allowing a person convicted under the possession of controlled substance
statute to receive a term of conditional and revocable probation rather
than a mandatory minimum term of imprisonment.
[3] We addressed the identical legal argument earlier in this term as
raised and decided in Faifaiese v. American Samoa Gov’t, AP No. 1399, Opinion and Order at 4-8 (App. Div. Feb. 15, 2002). We are of the
same opinion in this case and affirm the trial court’s decision that
A.S.C.A. § 13.1022 excludes probation from the court’s sentencing
options as both mandated and limited by this statute.
B. Sufficiency of the Evidence
[4-5] The evidence presented at trial was sufficient to support a finding
of guilt beyond a reasonable doubt for appellant’s convictions of
possession of a controlled substance (marijuana) and for discharge of a
firearm. Beyond reasonable doubt is not treated as an impossible hurdle.
See, e.g., American Samoa Go’t v. Uo, 4 A.S.R.2d 14 (Trial Div. 1987)
(burden of proof beyond a reasonable doubt in criminal cases does not
prohibit trier of fact from drawing inferences from the evidence). If,
upon review of the facts, it is determined that a rational trier of fact could
find guild beyond reasonable doubt, the verdict must stand. Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Appellant challenges admission of police Sgt. Ta`ase Sagapolutele’s
testimony as an expert and the introduction of the results of his forensic
analysis of the marijuana seized as reversible error. Admission of this
evidence was not reversible error. We note that appellant has not
challenged the sufficiency of evidence for his conviction for possession
of methamphetamine.
Appellant claims the trial court erred in admitting the results of the
Duquenois-Levine Field Test conducted by Officer Sagapolutele upon
the substance seized from appellant. This court was also presented with
nearly identical arguments on this issue by the appellant in Faifaiese,
differing only in the identity of the police officer administering the field
17
test. Based upon the standard of review set forth in Faifaiese as applied
to the facts of the instant appeal, we affirm the admissibility of the
Duquenois-Levine Field Test results into evidence at appellant’s trial as
being well within the confines of the trial court’s discretion.
[6] We also apply the same standard as set forth in Faifaiese with respect
to the trial court qualifying Sgt. Sagapolutele as an expert witness and
admitting the results of his forensic analysis. The trial court was within
its discretion to qualify Officer Sagapolutele as an expert witness and to
allow his expert opinion testimony. Sgt. Sagapolutele had a particular
expertise in this field and testing procedure, as demonstrated through his
many years of experience in narcotics investigations, having been
involved in over sixty narcotics cases, having been trained in visual,
microscopic and chemical identification of marijuana on numerous
occasions since 1987, including a recent training course in 1997. These
factors establish the reliability of the testimony. Therefore, the trial
judge’s determination allowing his expert testimony was well within the
granted discretion under T.C.R.Ev. 702 and the test established by U.S.
Supreme Court in Daubert v. Merrell Dow Pharmaceutical, Inc., 509
U.S. 579 (1993).
Appellant’s next claim of insufficient evidence that appellant was
knowingly in possession of marijuana also fails. Again, this identical
issue was raised in Faifaiese, and we determined that the demonstrable
presence of Tetrahydrocannabinol (“THC”) in the substance possessed
was sufficient to prove that substance to be marijuana. We so hold here.
Appellant’s final claim was that there was insufficient evidence to
support a conviction on Count IV (discharge of a firearm), under
A.S.C.A. § 46.4231, which provides that: “It is unlawful for any person
to discharge, explode, or set off any arms within 30 yards of any public
road or highway, house, building, or airport in American Samoa . . . .
Under the provisions of A.S.C.A. § 46.3203(b), a defendant must act
with the requisite mens rea, either “purposely or knowingly or
recklessly,” to be guilty.
[7] Credibility of witnesses is uniquely a matter for determination by the
trier of fact. National Pacific Insurance Co. v. Oto, 3 A.S.R.2d. 94
(App. Div. 1986). The jury chose to believe Officer Seva`aetasi’s
testimony as to appellant’s discharging of the firearm. We will not
substitute our judgment for that of jury and weigh the credibility of this
testimony. Id. We only need to determine that from the jury’s decision
based on the evidence as presented supported their finding. The officer’s
testimony supports the finding that appellant acted with the required
mens rca to commit this offense. Therefore, this court will not find that
the jury’s decision on this charge was “clearly erroneous” as would be
18
needed to find reversible error.
The evidence as presented at trial was sufficient to support the jury’s
findings.
Order
For reasons stated above, the judgment in the trial court is affirmed.
It is so Ordered.
**********
STANCRIS SALES COMPANY, Appellants,
v.
J.J. YONG aka JUM-YONG CHUM aka Mr. Chung
aka YUNG CHUNG KIM, PETELO UTI and
SO KUN JOO dba MALAEIMI VALLEY MART, Appellees.
High Court of American Samoa
Appellate Division
AP No. 12-99
August 2, 2002
[1] Where statute of limitations defense was premised upon when
plaintiff knew of should have known the evidentiary basis of his claim,
triable issue of fact existed and trial court’s grant of summary judgment
was improper.
Before KRUSE, Chief Justice, WALLACE,* Acting Associate Justice,
MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge,
TUPUIVAO, Associate Judge.
*
The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeal for the Ninth Circuit, serving by designation of the
Secretary of the Interior.
**
The Honorable Susan Oki Mollway, United States District Court
Judge, District of Hawaii, serving by designation of the Secretary of the
Interior.
19
Counsel: For Appellant, Katopau Ainu`u
For Appellees, Paul F. Miller
OPINION AND ORDER
The trial court awarded summary judgment to appellees finding that
appellant's cause of action for fraud was barred by the statute of
limitations. Specifically, the court found that appellant “knew or should
have known” the evidentiary basis of his claim by a certain time frame.
Stancris Sales Co., v. J.J. Yong et al., CA No. 47-99, slip op. at 4 (Trial
Div. Sept 9, 1999) (Order Granting Defense Motion for Summary
Judgment).
[1] We find that the statute of limitations presents a triable issue of fact
and therefore conclude that summary judgment is not appropriate.
T.C.R.C.P. Rule 56. We accordingly reverse and remand.
Appellee's motion for T.C.R.C.P. Rule 11 sanctions is denied.
It is so Ordered.
**********
TOLI TAVITA FUIMAONO, Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of American Samoa
Appellate Division
AP No. 05-01
November 26, 2002
[1] A trial court’s determination as to whether a criminal defendant’s
double jeopardy rights have been violated is reviewed de novo.
[2] American Samoa’s double jeopardy clause affords the same
protections as does the Federal Constitution.
20
[3] The double jeopardy clause of American Samoa’s constitution
protects an accused against a second prosecution for the same offense
after acquittal, a second prosecution for the same offense after
conviction, and multiple punishments for the same offense.
[4] Determination of the “same offense” is the cornerstone of any double
jeopardy analysis.
[5] American Samoa utilizes the same-elements test, otherwise known as
the ‘Blockburger test,’ which inquires whether each offense contains an
element not contained in the other; if not, they are the same offense and
double jeopardy bars additional punishment and successive prosecution.
[6] A.S.C.A. § 46.3107(4) does not speak to subsequent prosecutions,
but is applicable only when determining whether one specific statute
allows for multiple convictions arising out of one transaction.
[7] A single transaction can give rise to distinct offenses under separate
statutes without violating the Double Jeopardy Clause.
[8] A.S.C.A. § 46.3107(4) did not apply to case where defendant had
been charged under three separate statutes, and none of the charges arose
out of the same statute.
[9] Trial judge’s findings of facts at a suppression hearing are reviewed
for clear error.
[10] A trial judge’s determination that reasonable suspicion existed
sufficient to justify a stop is reviewed de novo.
[11] Police officers may conduct a temporary investigative stop of an
individual, or his/her vehicle, if the stop is based upon reasonable
suspicion.
[12] Reasonable suspicion is based on an objective standard that looks to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the stop.
[13] Where officer’s stop was based solely on tip from reliable informant
that suspect had recently been engaged in a criminal activity, such
information was sufficient to warrant a brief investigatory traffic stop.
[14] Where government’s expert witness performed 2 of the 3 standard
forensic tests to determine whether substance was marijuana, was unable
to perform the third due to the fact that the substance was no longer in
plant form, but nonetheless concluded that the substance was marijuana,
21
there was sufficient evidence to support jury’s finding that the substance
in defendant’s possession was marijuana.
Before RICHMOND, Associate Justice, WALLACE,* Acting Associate
Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate
Judge, and TUPUIVAO, Associate Judge.
Counsel: For Appellant, Bentley C. Adams III, Assist. Public Defender
For Appellee, John W. Cassell, Assistant Attorney General
OPINION AND ORDER
Fuimaono was convicted by a jury of unlawful possession of the
controlled substance of marijuana and possession of prohibited weapons.
On appeal, he argues that his convictions should be reversed because 1)
his prosecution was barred by double jeopardy; 2) evidence seized from
an illegal Terry Stop was used as the basis of the prosecution; and 3) the
evidence was insufficient to sustain a guilty verdict. We affirm
Fuimaono’s conviction.
I. Factual Background
This case arose out of a traffic stop by police officers Aitasi Samoa and
Abel Penitusi. On March 10, 2000, around 9:15 a.m., the two officers
were patrolling the Fagatogo marketplace area. The officers received a
radio dispatch from the Central Police Station in Fagatogo directing them
to investigate a public peace disturbance at Tufono’s Laundromat and
relaying the following information: an argument had occurred between a
commercial bus driver and the complainant, the manager of the
laundromat; two other men were drinking alcohol inside the bus; and the
license number of the bus. The dispatch did not include the
complainant’s name, but she had identified herself when she called the
police headquarters.
Moments after receiving the dispatch, the two officers spotted a bus
entering the main public highway from a direction consistent with having
come from the laundromat. The license plate number and the number of
occupants matched the complainant’s description, so they pulled the bus
over. The officers did not witness the bus driver commit any traffic
*
The Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation of the
Secretary of, the Interior.
**
The Honorable Susan Oki Mollway, District Judge, United States
District Court for the District of Hawaii, sitting by designation of the
Secretary of the Interior.
22
infractions and stopped the bus based solely on the dispatch information.
Fuimaono was driving the bus. When stopped, he was wearing a waist
pouch, and a briefcase was at his left side. Officer Samoa smelled
alcohol coming from Fuimaono. Police officers Liusila Brown and
Timali Polasi arrived a few minutes later and also smelled alcohol.
Officer Brown became the lead investigator. Fuimaono, wearing the
waist pouch, was still in the driver’s seat of the bus, and the briefcase was
at the same location. After Fuimaono failed a field sobriety test, Brown
arrested him for driving under the influence of alcohol or other drugs and
cited him for licensing violations. During a pat-down search, Brown
retrieved a plastic bag protruding from Fuimaono’s pocket containing a
substance the officer recognized as marijuana. Brown also removed what
he believed to be a marijuana cigarette from the same pocket. Brown
kept the removed items in his possession.
Fuimaono resisted further search, was handcuffed, and taken to the
Central Police Station. Brown brought along the briefcase. At the
station, he removed the waist pouch from Fuimaono and, while putting
back the two items taken at the arrest scene into the pouch, he noticed
another apparent marijuana cigarette inside. He then turned Fuimaono,
the waist pouch and its contents, and the briefcase over to Sgt. Tauama
T. Fe`a, Jr., a police vice and narcotics officer.
Sgt. Fe`a searched the waist pouch and found the two apparent marijuana
cigarettes, the plastic bag containing apparent marijuana, other bags,
cigarette rolling paper, and rolled up brown paper commonly used to
smoke nearly consumed marijuana cigarettes. Sgt. Fe`a also searched the
briefcase and found a plastic bag containing apparent marijuana, live
bullets for an unlicensable firearm, and 62 explosives known locally as
“cherry bombs,” and a long wallet containing an empty plastic bag. He
turned over all of these items to the police evidence custodian.
On June 15, 2000, police Lt. Vaito`elau Laumoli performed forensic
analysis by microscopic and chemical testing and determined the
substances found in the waist pouch and briefcase to be marijuana. Lt.
Laumoli is a specially trained drug analyst for the police department.
On April 4, 2000, in the District Court, Fuimaono pled guilty to the
misdemeanor offense of reckless driving, A.S.C.A. § 22.0702, in lieu of
the driving under the influence charge. The American Samoa
Government (“the government”) also dismissed the two vehicular
licensing charges. The District Court had jurisdiction over these lesser
charges. A.S.C.A. § 3.0302.
On April 28, 2000, the government commenced Fuimaono’s prosecution
on the present felony charge of unlawful possession of the controlled
23
substance of marijuana, A.S.C.A. §§ 13.1022, 13.1006, and
misdemeanor charge of possession of prohibited weapons, A.S.C.A. §§
46.4202(a), 46.4220. After Fuimaono was bound over to the High Court,
Fuimaono moved in the trial court to dismiss the information on the
ground that the charges were barred by double jeopardy. The trial court
denied the motion to dismiss, and Fuimaono then moved to suppress the
evidence obtained as a result of the vehicle stop and his arrest. The trial
court also denied this motion, and the action proceeded to trial by jury.
II. Double Jeopardy
[1] Fuimaono argues that A.S.C.A. § 46.3107(4) barred his prosecution
for both possession charges since he had already pled guilty to a crime
which arose out of the same course of conduct.1 The trial court rejected
his argument. We review de novo whether Fuimaono’s double jeopardy
rights were violated. United States v. Stoddard, 111 F.3d 1450, 1454 (9th
Cir. 1997).
[2-3] Article I, Section 6 of the Revised Constitution of American Samoa
provides in part that “[n]o person shall be subject for the same offense to
be twice put in jeopardy of life or liberty.” Similarly, the Fifth
Amendment of the United States Constitution provides in part, “nor shall
any person be subject for the same offense to be twice put in jeopardy of
life or limb.” We acknowledge what has been implicit in our previous
cases: American Samoa’s double jeopardy clause affords the same
protections as does the Federal Constitution. See American Samoa Gov’t
v. Meleisea, 24 A.S.R.2d 32, 35 (Trial Div. 1993); American Samoa
Gov’t v. Schuster, 24 A.S.R.2d 15, 16 (Trial Div. 1993); American
Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11 (Trial Div. 1993);
American Samoa Gov’t v. A.famasaga, 17 A.S.R.2d 145, 150 (Trial Div.
1990); American Samoa Gov’t v. Moafanua, 4 A.S.R.2d 33, 34-35 (Trial
Div. 1987). Both double jeopardy clauses thus protect the accused
against “a second prosecution for the same offense after acquittal[;] . . . a
second prosecution for the same offense after conviction[;] . . . [and]
multiple punishments for the same offense.” Commonwealth v. Arriaga,
691 N.E.2d 585, 587 (Mass. App. Ct. 1998) (emphasis removed),
quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
[4-5] Determination of the “same offense” is the cornerstone of any
double jeopardy analysis. The federal and territorial constitutions
embrace “[t]he same-elements test, sometimes referred to as the
1
The government does not dispute that “jeopardy normally attaches
when the court unconditionally accepts a guilty plea.” United States v.
Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990).
24
‘Blockburger’ test, [which] inquires whether each offense contains an
element not contained in the other; if not, they are the ‘same offence’ and
double jeopardy bars additional punishment and successive prosecution.”
United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United
States, 284 U.S. 299, 304 (1932); Fealofa`i, 24 A.S.R.2d at 11.
However, other tests abound.
The short-lived “same conduct” test provides that, in addition to the
Blockburger test, “Double Jeopardy bars any subsequent prosecution in
which the government, to establish an essential element of an offense
charged in that prosecution, will prove conduct that constitutes an
offense for which the defendant has already been prosecuted.” Grady v.
Corbin, 495 U.S. 508, 521 (1990), overruled by Dixon, 509 U.S. at 704.
Additionally, the “same transaction” test “requires the prosecution,
except in most limited circumstances, to join at one trial all the charges
against a defendant that grow out of a single criminal act, occurrence,
episode, or transaction.” Ashe v. Swenson, 397 U.S. 436, 453-54 (1970)
(Brennan, J., concurring). While some states have adopted these more
stringent tests under their constitutions, they are not the federal standard
and not necessarily the standard in American Samoa under Article I,
Section 6.
Fuimaono maintains, however, that A.S.C.A. § 46.3107 shows a
conscious decision by the Legislature of American Samoa to afford an
accused more protection in American Samoa than the federal
Constitution. A.S.C.A. § 46.3107 provides in part:
When the same conduct of a person may establish the
commission of more than 1 offense, he may be prosecuted for
each offense. He may not, however, be convicted of more than
1 offense if:
* * * *
(4) the offense is defined as a continuing course of conduct
and the person’s course of conduct was uninterrupted unless
the law provides that specific periods of that conduct
constitute separate offenses.
The essence of Fuimaono’s claim is that A.S.C.A. § 46.3107(4)
encompasses the “same transaction” test. He urges that his second
prosecution was barred because the offenses charged were committed
during the “same course of conduct” previously prosecuted, which was
“uninterrupted,” and the law does not provide “that specific periods of
that conduct constitute separate offenses.” He concludes that the
government could have avoided this problem by charging all the offenses
25
in one prosecution in one tribunal.
The government counters that A.S.C.A. § 46.3107(4) pertains to the
common law doctrine of “continuing offenses.” Furthermore, it
interprets Fuimaono’s argument as applying the “same conduct” test and
dismisses it as having been overruled in Dixon. While we disagree as to
how the government classifies Fuimaono’s argument, we agree with its
interpretation of A.S.C.A. § 46.3107(4).
A.S.C.A. § 46.3107(4) is identical to Model Penal Code § 1.07(1)(e).
The Comment to section 1.07 of the Model Penal Code explains:
(e) Continuing Course of Conduct. Subsection (1)(e) deals
with a continuing course of conduct prohibited by a single
statute. It provides that only one conviction is proper based
upon a single uninterrupted course of such behavior, unless the
statute prescribes that specific periods constitute separate
offenses. For example, a person violates an unlawful
cohabitation statute only once, no matter how long his
unlawful cohabiting continues, where the conduct was not
interrupted by the issuance of process or otherwise.
Another good example of when A.S.C.A. § 46.3107(4) is implicated is in
the context of sexual offenses. It is possible that a person could violate
A.S.C.A. § 46.3611, Sodomy, more than once in a single transaction if he
performs a sexual act with the victim on more than one of the defined
offending body parts. See A.S.C.A. § 46.3601. In that case, we would
rely on A.S.C.A. § 36.3107(4) to determine whether there was an
uninterrupted, continuing course of conduct or whether two separate
crimes had been committed. See, e.g., Commonwealth v. Arriaga, 691
N.E.2d at 590.
In interpreting Haw. Rev. Stat. § 701-109(1)(e) (1993), which is also
identical to Model Penal Code § l.07(1)(e), State v. Caprio, 937 P.2d
933 (Haw. Ct. App. 1997), observed:
Unlike the double jeopardy clause, which protects a defendant
from successive prosecutions after acquittal or conviction, for
the “same offense,” and from multiple punishments for the
“same offense,” HRS § 701-109 [and A.S.C.A. § 46.3107 are]
a multiple offense limitation that protects a defendant from
being convicted for certain combinations of offenses arising
from the same conduct. 1 P. Robinson, Criminal Law Defenses
§ 68(a) at 328-29 (1984).
*
*
*
26
*
The foregoing Commentary and Comments indicate that HRS
§ 701-109(l)(e) [and A.S.C.A. § 46.3107(4) were] intended to
prohibit the State from dividing a crime, defined by statute as a
continuing offense, into separate temporal or spatial units, and
then charging a defendant with committing several counts of
the same statutory offense, each count based on a separate
temporal or spatial unit of the continuing offense.
937 P.2d at 944-45 (emphasis removed)
[6-7] It is clear from this discussion that A.S.C.A. § 46.3107(4), contrary
to Fuimaono’s argument, does not speak to subsequent prosecutions.2
Indeed, “the performance of a Blockburger analysis completes the
judicial task in a successive prosecution case.” United States v. Morris,
99 F.3d 476, 480 (1st Cir. 1996); see generally Arriaga, 691 N.E.2d at
587-88 (explaining appropriate state and federal tests applicable when
analyzing prohibition against multiple prosecutions and multiple
punishments). Instead, A.S.C.A. § 46.3107(4) is applicable only when
determining whether one specific statute allows for multiple convictions
arising out of one transaction. In this respect, “[i]t is well settled that a
single transaction can give rise to distinct offenses under separate
statutes without violating the Double Jeopardy Clause.” Morris, 99 F.3d
at 480, quoting Albernaz v. United States, 450 U.S. 333, 344 n.3 (1981)
(emphasis added); see Caprio, 937 P.2d at 944; Missouri v. French, 79
S.W.3d 896 (Mo. 2002)
In applying the foregoing analysis to the case at bar, it is clear that
Fuimaono’s second prosecution was not barred by double jeopardy. We
first apply the Blockburger test and determine that each offense charged
in the successive prosecution, unlawful possession of a controlled
substance and possession of a prohibited weapon, clearly contain
elements not found in the offense of reckless driving. Both possession
charges require the government to prove, for example, that Fuimaono
possessed a prohibited contraband, irrespective of whether or not he was
operating a motor vehicle. See A.S.C.A. §§ 13.1022, 46.4202, 22.0702.
On the other hand, the charge of reckless driving requires the government
to prove that Fuimaono was operating a motor vehicle, irrespective of
whether or not he possessed a prohibited substance. Id. The Blockburger
test is easily satisfied.
[8] Furthermore, A.S.C.A. § 46.3107(4) is wholly inapplicable to this
case. As discussed, that section speaks to multiple convictions arising out
2
We do not here decide what bearing, if any, A.S.C.A. § 46.3107(4) has
upon multiple punishment cases, which is afforded different legal
treatment.
27
of the same statute. In this case, however, Fuimaono was charged under
three separate statutes.3
III. The Terry Stop
[9-10] Fuimaono argues that the officers lacked a reasonable articulable
suspicion to pull his bus over and, consequently, the evidence obtained
subsequent to the arrest should be suppressed as fruit of the poisonous
tree.4 We review the trial judge’s findings of facts for clear error.
United States v. Michael R., 90 F.3d 340, 345 (9th Cir. 1996). On the
other hand, we review de novo whether reasonable suspicion existed
justifying the stop. Ornelas v. United States, 517 U.S. 690, 699 (1996).
[11-12] Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may
conduct a temporary investigative stop “if the stop is based upon
reasonable suspicion . . . .” United States v. Lopez-Gonzalez, 916 F.2d
1011, 1013 (5th Cir. 1990). “The Terry rationale also permits the
investigatory detention of a vehicle.” Id. Reasonable suspicion is based
on an objective standard that looks to “specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant [the stop].” Terry, 392 U.S. at 21.
[13] The trial judge’s findings in regards to the informant’s tip were not
clearly erroneous.5 Because the informant’s tip was reliable, it gave the
police officers enough information to warrant a brief investigatory traffic
stop. Lopez-Gonzalez, 916 F.2d at 1013. The officers had reasonable
suspicion that Fuimaono, who was driving the bus, had recently been
engaged in a criminal activity. See A.S.C.A. §§ 27.0532 (Prohibited
Places of [Alcohol] Consumption), 46.4501 (Disturbing Public Peace).
Because the stop was lawful, nothing found should be suppressed as fruit
of a poisonous tree.
IV. Sufficiency of the Evidence
Fuimaono argues that the evidence was insufficient to convict on the
3
We note that none of the other provisions of A.S.C.A. § 46.3107 are
applicable.
4
In the trial court, the defendant argued not only that the Terry Stop was
invalid but also that the arrest, the search incident to arrest, and
incriminating statements should all have been suppressed. He did not
renew these additional arguments on appeal.
5
The trial judge’s findings were based on the testimony from the
suppression hearing of Officers Samoa, Penitusi, and Poloai, and the
former testimony of Officer Brown, who was unavailable to testify.
28
count of unlawful possession of a controlled substance because (1) the
evidence obtained as a result of the traffic stop should have been
suppressed and (2) the government never proved that Fuimaono
possessed Cannabis Sativa L, better known as marijuana, but instead only
proved he possessed a substance which contained Tetrahydrocannabinols
(“THC”). We have already discussed why the evidence obtained from
the traffic stop should not be suppressed. We now briefly address
Fuimaono’s second contention.
The thrust of Fuimaono’s argument is that the government’s expert, Lt.
Laumoli, testified only that his analysis detected the presence of THC in
the confiscated substances, and not that the substances themselves were
marijuana. We have already held that “the claim that what was found
was only [THC] and not marijuana is a distinguishment this court does
not accept.” Faifaiese v. American Samoa Gov’t, AP No. 13-00, slip op.
at 16 (App. Div. Feb. 15, 2002). Even more importantly, Fuimaono
overlooks the entirety of Lt. Laumoli’s testimony.
[14] Lt. Laumoli testified that there are three tests performed in the
forensic analysis to identify marijuana. First, the analyst does a visual
examination, separating the plants that are clearly not marijuana. Among
other things, the analyst looks at the shape and number of leaves on the
plant. Second, the analyst performs a microscopic test. This test
involves a close examination of the “glandular hairs,” found in the seeds
of the plant, to see if their shape is consistent with the glandular hairs
found in marijuana. Lastly, the analyst performs a chemical test to detect
whether the substance contains THC, a chemical found in marijuana.
In this case, it appears that because the substances seized were not in
plant form, the initial visual test was not performed. However, Lt.
Laumoli testified that he performed both the microscopic and chemical
tests. Therefore, Fuimaono’s claim that the evidence proved, at best, the
mere presence of THC fails. Lt. Laumoli’s testimony showed that the
chemical test, when conducted in conjunction with the microscopic test,
proved that the substance was marijuana. Given the evidence presented
in this case, a rational trier of fact could have found Fuimaono guilty
beyond a reasonable doubt. Id. at 11, citing Jackson v. Virginia, 443 U.S.
307, 319 (1979).
V. Conclusion
For the reasons stated above, Fuimaono’s conviction is affirmed.
It is so Ordered.
**********
29
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
KIFI TOILOLO and FA`AFO`I SOI, Defendants,
High Court of American Samoa
Trial Division
CR No. 92-01
CR No. 93-01
March 15, 2002
[1] If a criminal defendant has had sufficient time to prepare for the
amended information such that he is not considered to be taken by
surprise, he is not prejudiced and the amendment is permitted.
[2] A key to determining whether a proposed change in an information
will result in prejudice to the criminal defendant is consistency in the
underlying factual accusations.
[3] Where original information included factual allegations of all the
elements of the additional charge in amended information, where
defendants were provided three months to prepare for trial, and where
defendants failed to show prejudice from new charge, aside from greater
probability of conviction, amendment to information was proper.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, Bentley C. Adams, III, Asst. Public Defender
ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND COMPLAINT
Defendants have been charged with Murder in the First Degree according
to the Information filed by Plaintiff on November 30, 2001. On February
1, 2002, Plaintiff moved to amend the information, adding an alternative
charge of Assault in the First Degree. Defendants argue that the
proposed amendment would prejudice their rights. Plaintiff argues that
the filing is not prejudicial to defendants’ rights and is in compliance
with T.C.R.Cr.P. Rule 7(e).
30
[1] A review of federal experience with the federal counterpart of Rule
7(e) is informative in understanding what constitutes prejudice under our
identical rule. If the defendant has enough time to prepare for the
amended information that he is not considered to be taken by surprise, he
is not prejudiced and the amendment is permitted. State v. McCowan,
602 P.2d 1363, 1371 (Kan. 1979) (allowing amendment is not reversible
error in absence of any reasonable showing that the interests of the
defendant were prejudiced); Tiliman v. Cook, 855 P.2d 211, 214-15
(Utah 1993) (defendant had three months to prepare his defense to
additional aggravating circumstances); USAC Transport v. U.S., 203
F.2d 878 (10th Cir. 1953) (where defendant did not move for time to
prepare for any surprise caused by amendment, defendant was not
prejudiced by the amendment).
[2] Another key to determining whether the change results in prejudice is
consistency in the underlying factual accusations. If the underlying
factual accusations remain the same, amending the information to a
different charge has been found proper. U.S. v. Smith, 107 F.Supp 839
(D.C.Pa. 1952). Also, changing the charge in an information to a lesser
included offense of the original charge has been held harmless. Gov’t. of
Canal Zone v. Burjan, 596 F.2d 690, 693 (5th Cir. 1979)
[3] In the current situation, the original information included factual
allegations of all the elements of assault. In fact, these allegations are the
basis of the murder charge. While assault may not technically be a
“lesser included charge” of murder, amending the information to include
assault is not inconsistent with the original factual allegations. Also,
defendants will have had over three months to prepare for the new charge
by the time the trial occurs, assuming it is not held at an even later date
than currently scheduled. Finally, defendants have failed to show any
evidence of how the new charge prejudices their rights.
It might be argued that including the new charge of assault prejudices
defendants’ rights in that they seem now more likely to be convicted of
something than before the amendment. However, the case law makes it
apparent that relative likelihood of conviction is not the test for
prejudice—rather, whether the change itself produces an unfair
disadvantage is the central issue. If the prosecutor in the case at hand
were to throw in a possession charge, or robbery, it would be a different
situation; new factual allegations would have arisen, possibly taking
defendant by surprise. But that is not the case here.
Defendants are not prejudiced by the amended information. The
plaintiff’s motion to amend is granted.
It is so Ordered.
31
**********
AMERICAN SAMOA GOVERNMENT, Plaintiff
v.
ZHI GUO WANG, Defendant
High Court of American Samoa
Trial Division
CR No. 21-02
June 20, 2002
[1] Under the Rules of Criminal Procedure, an information is required to
set forth a plain, concise and definite written statement of the essential
facts constituting the offense charged.
[2] An information is to be measured by two criteria: 1) whether the facts
stated show the essential elements of the offense charged so as to enable
a defendant to prepare his or her defense; and 2) whether the facts
alleged are sufficient to ensure against double jeopardy in a second
prosecution.
[3] A continuing offense may be charged without specifying individual
acts as a basis for criminal conduct
[4] The offenses of Promoting Prostitution and Abuse of Child, when
defendant alleged to have encouraged prostitution, are continuing course
of conduct offenses that can be charged without specifying individual
acts.
[5] Where defendant alleged to committed offenses of Promoting
Prostitution and Abuse of Child by encouraging child to engage in
prostitution, jury did not need to agree that victims had committed a
particular act of prostitution in order to convict.
[6] An information using only statutory language is permissible as long
as the statute sets forth fully, directly and expressly, without any
uncertainty or ambiguity, all the elements necessary to constitute the
32
offense intended to be punished.
[7] A criminal defendant is expected to look at all of the sources
provided by the government and not simply at the information formally
charging him with the crime.
[8] An individual can be guilty of the offense of “abuse of a child” if he
or she commits one of three categories of offenses, stated in 42 A.S.C.A.
§ 45.2001(a)(1)(B), with regards to a child—sex crimes, prostitution, or
pornography.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, William H. Reardon
ORDER DENYING MOTION TO DISMISS
The defendant Wang Zhi Guo Wang ("Wang") is charged with one count
of Promoting Prostitution in the Second Degree, and two counts of Abuse
of a Child. Defendant moves to dismiss the information on the ground of
vagueness.
[1] Recycling word for word, except for minor factual adjustments, a
Memorandum of Points and Authorities previously filed on June 22,
2000, by the Public Defender's office in American Samoa Gov't. v.
Faumuina, CR No. 25-00, (Trial Div. 2000), Wang argues that the
information fails to conform with the specificity requirements of
T.C.R.Cr.P. Rule 7(c)(1), which requires that “the information shall be a
plain, concise and definite written statement of the essential facts
constituting the offense charged.” He thus challenges the sufficiency of
the information contending a violation of his right to be informed of the
“nature and cause of the accusation” against him under the Sixth
Amendment of the United States Constitution, and under Article I,
Section 6 of the Revised Constitution of American Samoa.
Discussion
I.
[2] The Supreme Court in Russell v. United States, 369 U.S. 749, 763
(1962), set out two criteria by which the sufficiency of the information is
to be measured: 1) whether the facts stated show the essential elements of
the offense charged to enable him to prepare his defense; and 2) whether
the facts alleged are sufficient to ensure against double jeopardy in a
33
second prosecution.
The information filed in Faumuina charged three separate criminal
offenses, sexual abuse in the first degree, assault in the second degree,
and assault in the third degree. The Court found the information wanting
in "essential facts" sufficient to notify defendant of the charges filed
against him as required by T.C.R.Cr.P. Rule 7. Slip op. at 4. The
information there filed not only failed to name the victims in all three
counts, but it also failed to appraise the defendant of the particular acts
for which he was charged. Instead, the information simply tracked the
generic language employed by the statute to describe each offense, while
at the same time, the two more serious counts merely alluded to a range
of dates, encompassing the span of a month, within which the offending
conduct was said to have been committed. Under these circumstances,
the Court was concerned with the defendant's potential exposure to
multiple prosecution possibilities for the same crime on different
theories. The Faumuina Court, did not, however, order dismissal but
required the prosecution to file a bill of particulars
[3-5] In contrast, the double jeopardy concerns of Faumuina are not
evident here. The subject offenses before the Faumuina Court were all
single act specific crimes, whereas the crimes charged in the matter at bar
may be based on a continuing course of conduct, and not merely on any
one event. "A continuing offense may be charged without specifying
individual acts as a basis for criminal conduct." State v. Elliot, 785 P.2d
440, 444 (Wash. 1990). In Count 1, the offense, promoting or advancing
prostitution, addresses a person, acting other than as a prostitute, doing
something that promotes or aids others to engage in prostitution. In other
words, it is the result of a continuing course of conduct advancing
prostitution and not any particular instance of prostitution itself that is
key. Similarly, in Counts 2 and 3, the charges of Abuse of Child relate to
a continuing course of conduct--permitting or encouraging a child to
engage in prostitution, and not any particular occasion of prostitution.
The subject enactments speak to a continuing offense that can be charged
without specifying individual acts. In both situations, promoting
prostitution and abuse of child, the jury does not need to agree that the
victims had committed a particular act of prostitution in order to convict.
[6] An information using only statutory language is quite permissible as
long as the statute sets forth "fully, directly and expressly, without any
uncertainty or ambiguity, all the elements necessary to constitute the
offence intended to be punished." Hamling v. United States, 418 U.S.
87, 117-18 (1974). There is a key difference between a defendant's
constitutional right to know what offenses he is charged with and his
desire to know the evidentiary details of the prosecution's case. United
States v. Williams, 679 F.2d 504, 509 (9th Cir. 1982).
34
[7] In our view, the information sufficiently states the elements of the
offenses, fairly informing the defendant of the charges against him so as
to enable him to plead former jeopardy in a subsequent prosecution.
Moreover, the Affidavit in Support of the Criminal Complaint, filed
March 3, 2002, more than adequately appraises Wang of some of the
underlying facts predicating the charges against him so as to adequately
facilitate the preparation of his defense and avoid prejudicial surprise at
trial. Wang is expected to look at all of the sources provided by the
government and not simply at the information formally charging him with
the crime. American Samoa Government, 24 A.S.R.2d 26, 29 (Trial Div.
1993), citing C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 129, AT
437 (1982).
II.
Wang next claims that even if sufficient facts are alleged for Counts 2 &
3, no violation of the Child Abuse Law is alleged. Wang submits that
under A.S.C.A. § 45.2001(a)(1)(B), when prostitution is the conduct at
issue, the victim must be "subject to the sexual offenses contained in
46.3601 to 46.3617 and 46.3802" in order for Child Abuse to have
occurred. Wang then contends that since the offenses delineated in the
above statute, A.S.C.A. 46.3601 to 46.3617 and 46.3802, all require the
victim to be younger than 17 years of age, the victims in this case being
17 years of age, the sex was consensual and not within the statute.
This is a misreading of the statute by the defendant. A.S.C.A. § 45.2001
reads as follows:
(a)(1) "Abuse" or "child abuse or neglect" means an act or
omission in one of the following categories which seriously
threatens the health or welfare of a child: (B) when a child is
subject to the sexual offenses contained in 46.3601 to 46.3617
and 46.3802, or is allowed, permitted, or encouraged by the
child's parents, legal guardian, custodian, or any other person
responsible for the child's health and welfare, to engage in
prostitution or be the subject of obscene or pornographic
photographing, filming, or depicting;
[8] The statutory language of A.S.C.A. § 45.2001(a)(1)(B), is presented
in the disjunctive, dividing the provision into three sections; sex crimes,
prostitution and pornography. As the charges in this matter relate to
prostitution, and not sex crimes, the age provisions of A.S.C.A. 46.3601
to 46.3617 and 46.3802 are irrelevant. What is required is that the
victims be "a person under 18 years of age" and therefore come within
the definition of a "child" under the statute. A.S.C.A. § 45.0103(3).
35
The facts as alleged in the information put the victims within the
definition of a child, and therefore within A.S.C.A. § 46.3811.
For reasons given, the motion to dismiss is denied.
It is so Ordered.
**********
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MATAIO VAAI, Defendant.
High Court of American Samoa
Trial Division
CR No. 12-02
September 6, 2002
[1] Generally speaking, every person is considered competent to be a
witness.
[2] Any given witness is presumed competent to testify. However, the
presumption is a rebuttable one.
[3] In determining whether a child is competent to testify, there is no
precise cut-off age. Instead, the court determines whether the child has:
(1) an understanding of the obligation to speak the truth on the witness
stand; (2) the mental capacity at the time of the occurrence concerning
which he is to testify to receive an accurate impression of it; (3) a
memory sufficient to retain an independent recollection of the
occurrence; (4) the capacity to express in words his memory of the
occurrence; and (5) the capacity to understand simple questions about it.
[4] The court must determine the competency of witnesses, and such
decision will not be disturbed unless it is clear the judge abused his or
her discretion.
[5] Inconsistencies in a child’s testimony do not speak to the child’s
competency but, instead, go to her credibility.
36
[6] Matters of credibility are within the exclusive function of the jury.
[7] A lesser included offense is one whose elements are a subset of the
charged offense.
[8] When there are overlapping statutes providing different penalties no
lesser offense instruction need be given.
[9] When some statutory provisions expressly mention a requirement, the
omission of that requirement from other statutory provisions implies that
the legislature intended both the inclusion of the requirement and the
exclusion of the requirement.
[10] The language of American Samoa’s penal statutes evidences an
intent not to punish “sexual contact” with a child under 12 as severely as
“deviate sexual intercourse” or “sexual intercourse” with a child under
12.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, Curtis E. Sherwood and Bentley C. Adams III,
Assistant Public Defenders
ORDER DENYING MOTION FOR
RECONSIDERATION OR NEW TRIAL
On May 14, 2002, the jury in this action convicted defendant Mataio
Vaai (“Vaai”) of three counts of child molesting, in violation of A.S.C.A.
§ 46.3618, each a class A felony punishable by a minimum term of
imprisonment of 10 years, without probation or parole. On June 14,
2002, the court adjudicated Vaai guilty of the three offenses and
sentenced him to 10 years’ imprisonment on each count, the counts 2 and
3 terms of imprisonment to be served concurrently with each other and
consecutively to the count 1 term of imprisonment.
Vaai moved for reconsideration or new trial on June 24, 2002. The court
heard the motion on July 18, 2002. Vaai was present with counsel.
Plaintiff American Samoa Government’s counsel was also present. The
court, having considered counsel’s argument, will deny the motion, with
the following comments on two of the issues raised by the motion.
Discussion
1. Admissibility of the Child Witness Testimony
37
The victim was eight years of age when she testified at the trial about
events that occurred when she was five years of age and again when she
was seven. Vaai now claims that the victim was incompetent because of
certain flaws in her testimony.
[1-6] Generally, “[e]very person is competent to be a witness.” T.C.R.Ev.
601. This rule raises a presumption of competence that, nonetheless, can
be rebutted. Vaai tried doing so at trial, and we held a voir dire to
determine whether the child could testify.1 When determining a child’s
competency, there is no precise cut-off age. Instead, we determine
whether the child has:
(1) an understanding of the obligation to speak the truth on the
witness stand; (2) the mental capacity at the time of the
occurrence concerning which he is to testify to receive an
accurate impression of it; (3) a memory sufficient to retain an
independent recollection of the occurrence; (4) the capacity to
express in words his memory of the occurrence; and (5) the
capacity to understand simple questions about it.
Jenkins v. Snohomish County Public Utility, 713 P.2d 79, 81 (Wash.
1986). This determination is a matter of law, for the trial judge, and will
not be disturbed unless it is clear the judge abused his discretion. See
State v. Stewart, 641 So. 2d 1086, 1089 (La. Ct. App. 1994). After
reviewing the record, we affirm that our ruling was proper.
Inconsistencies in the child’s testimony do not speak to the child’s
competency but, instead, go to her credibility. See Feleke v. State, 620
A.2d 222, 226 (Del. 1993); see also Hesler v. State, 431 S.E.2d 139, 140
(Ga.App. 1993); People v. District Court, 791 P.2d 682, 685 (Cob.
1990) (under state statute, child need not be able to understand what it
means to take an oath and tell the truth to be declared competent).
Matters of credibility, of course, are within the exclusive function of the
jury. American Samoa Gov’t v. Tauala, 25 A.S.R.2d 179, 180 (Trial Div.
1994).
2. Jury Instruction on Sexual Abuse in the First Degree
At trial, Vaai requested an instruction on sexual abuse in the first degree
as a lesser included offense of child molesting. We refused to give such
1
A second child witness, age nine, testified during the trial. Vaai is not
challenging this witness’ competency in his present motion. However,
we note that we followed the same voir dire procedure and found this
child was also competent to testify under the applicable standards.
38
an instruction. Vaai now claims that it was reversible error.2 Vaai’s
contention, however, hinges on his argument that we should infer that the
crime of child molestation implicitly requires an intent to gratify sexual
desire.3 That language, in turn, comes from the statutory definition of
“sexual contact.”4 Sexual abuse in the first and second degree are the
only offenses to date that include sexual contact as an element.5
[7] Vaai’s argument is illogical. Were we to infer such an intent, sexual
abuse in the first degree would still not be a lesser included offense of
child molestation. A lesser included offense is one whose elements are a
subset of the charged offense. See Schmuck v. United States, 489 U.S.
705, 716 (1989); A.S.C.A. § 46.3108. Under Vaai’s argument, sexual
abuse in the first degree would not be a subset but, rather, it would be an
2
Indeed, a “Court has no discretion to refuse to give a lesser-included
instruction if the evidence warrants the instruction and the defendant
requests it.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993).
See A.S.C.A. § 46.3108.
3
That language is not found within the statute, A.S.C.A. § 46.3618,
which reads:
46.3618 Child molesting
(a) Notwithstanding any other provision of this chapter, a
person commits the crime of child molesting if he engages in
sexual intercourse or deviate sexual intercourse with a minor
of the age of 12 years or under.
4
The statute, A.S.C.A. § 46.4601, reads:
46.4601 Definitions:
(b) “Sexual contact” means any touching of the genitals or
anus of any person, or the breast of any female person, or any
such touching through the clothing, for the purpose of
arousing or gratifying sexual desire of any person.
(emphasis added).
5
The statutes, A.S.C.A. §§ 46.3615 and 46.2616, read:
§ 46.3615 Sexual abuse in the first degree.
(a) A person commits the crime of sexual abuse in the first
degree if:
(1) he subjects another person to whom he is not married to
sexual contact without that person’s consent or by the use of
forcible compulsion; or
(2) he subjects another person who is 14 years of age or less
to sexual contact.
§ 46.3616 Sexual Abuse in the second degree.
(a) A person commits the crime of sexual abuse in the second
degree if he subjects another person to whom he is not married
to sexual contact without that person’s consent.
(emphasis added).
39
independent offense with its own penalty provision. Granted, there
would be substantial overlap between the two statutes; but we have
upheld such overlap in the past. See America Samoa Gov’t v. Whitney,
20 A.S.R.2d 29 (Trial Div. 1991) (finding that the sodomy, A.S.C.A. §
46.3611, and deviate sexual assault, A.S.C.A. § 46.3612, statutes did not
violate due process even though they both punished identical conduct);
United States v. Stanley, 928 F.2d 575, 581 (2d Cir. 1991) (government
can choose between different statutory penalty schemes applicable to the
same conduct); see also American Samoa Gov’t v. Macomber, 8
A.S.R.2d 182 (Trial Div. 1988).
[8] In such a situation, when “there are overlapping statutes providing
different penalties . . . no lesser offense instruction need be given.” 26
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 631.10(4) (c)
(3rd ed. 1999), citing Sansone v. United States, 380 U.S. 343, 351-353
(1965); see Schmuck, 489 U.S. at 716 n.8 (lesser included offense
instruction only given if facts of case allow jury to find defendant guilty
of lesser included offense but acquit him of the greater). “To hold
otherwise would invite the jury to pick between the two offenses in order
to determine the punishment to be imposed, a duty traditionally left to the
judge.” 3 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE
§ 515 (1982).
[9-10] Nonetheless, in any event, we will not infer such an intent
requirement in the face of legislative clarity. See Whitney, 20 A.S.R.2d at
32 (no ambiguity in statutory language of very similarly worded criminal
provisions). “When some statutory provisions expressly mention a
requirement, the omission of that requirement from other statutory
provisions implies that Congress intended both the inclusion of the
requirement and the exclusion of the requirement.” West Coast Truck
Lines v. Arcata Comm, Recycling, 846 F.2d 1239, 1244 (9th Cir. 1988)
(emphasis in original). Clearly the Legislature intended the exclusion of
“sexual contact” as an element of child Molesting as evidenced by their
inclusion of “sexual contact” as an element of other offenses. See
American Samoa Gov’t v. Masaniai, 4 A.S.R. 2d 156, 159 (Trial Div.
1989) (refusing to infer intent to sexually gratify into sodomy statute,
A.S.C.A. § 46.3611). The language also reflects a rational decision to
not punish “sexual contact” of a child under 12 as severely as “deviate
sexual intercourse” or “sexual intercourse” with a child under 12.
Additionally, we find no merit to Vaai’s argument that without the
element of “sexual contact,” the child molestation statute is
unconstitutionally broad. Vaai argues that it will lead to prosecutions of
parents who, for any reason, touch the genitals of their child while
exercising their constitutionally protected right of caring for that child.
This rhetoric sweeps too broadly. Child molesting is limited to situations
40
where an adult engages in “deviate sexual intercourse” or “sexual
intercourse” with a minor of 12 years or under. Deviate sexual
intercourse is defined as any “sexual act involving the genitals of one
person and the mouth, tongue, hand, or anus of another person.”
A.S.C.A, § 46.3601 (emphasis added). Sexual Intercourse is defined as
“any penetration, however slight, of the female sex organ by the male sex
organ, whether or not an emission results.” Id. Clearly these definitions
do not apply, for example, when a parent changes his child’s diaper or
when a doctor performs a gynecological examination. See Masaniai, 4
A.S.R.2d at 159. Indeed, they would never apply to ordinary, everyday
parent/child or doctor/child interactions.
The motion for reconsideration or new trial is denied.
It is so Ordered.
**********
41
JIANG SHUNZHE, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE, Defendants.
____________________
NGUYEN THI NGA, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD., KIL-SOO LEE,
TOURISM COMPANY 12, and IMS, et al., Defendants,
and
TOURISM COMPANY 12, Cross-Claimant/Counterdefendant,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE,
Cross-Defendants/Counterclaimants,
____________________
NEW STAR TRADING COMPANY, LTD.,
Plaintiff/Counterdefendant,
v.
DAEWOOSA SAMOA, INC., and KIL-SOO LEE,
Defendants/Counterdefendants.
____________________
AMERICAN SAMOA POWER AUTHORITY,
SEUNG KYU MOON, IN SAENG LEE, JElL VENTURES CO.,
LTD., and SAMOAN EMPLOYEES, Intervenors.
____________________
AMERICAN SAMOA GOVERNMENT, Necessary Party.
High Court of American Samoa
Trial Division
CA No. 68-99
CA No. 133-99
CA No. 93-00
January 4, 2002
42
[1] For purposes of particular issues, an individual may so dominate a
corporation that the individuality of the person and corporation cease to
exist, and recognition of their separate existence would promote the
person’s unjust evasion of contractual obligations.
[2] In a consignment, the consignor retains ownership, as well as the
powers of recall and setting the sale price.
[3] In a consignment, the consignee receives a commission but not the
profits of the sale.
[4] In a true consignment, the consignee possesses no interest in the
consigned property that may be obtained by creditors.
[5] Using contract terms that give the alleged consignor the right of
reclamation if goods remain unsold, without further development of the
consignment relationship, does not create a consignment.
[6] Simply holding a right of reclamation if payments are not met does
not create a consignment.
[7] A conditional sale which is not a consignment leaves the seller with a
security interest.
[8] A security interest or mortgage is not valid against another creditor
unless that creditor is put on actual notice of the transaction or the
interest is properly recorded with the Territorial Registrar.
[9] Review of a final administrative decision for errors of law is a matter
ordinarily within the exclusive jurisdiction of the Appellate Division of
the High Court.
[10] The Trial Division of the High Court is not bound by an erroneous
salary calculation determined by the American Samoa Government Wage
and Hour Board.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Vietnamese Plaintiffs, Virginia L. Sudbury and Christa
Tzu-Hsiu Lin
For Chinese Plaintiffs, Afoa L. Su`esu`e Lutu and Deanna
Sanitoa
For Plaintiff/Counterdefendant New Star Trading Company,
Ltd., Marshall Ashley
For Intervenor American Samoa Power Authority, Roy J.D.
43
Hall, Jr.,
For Intervenors Seung Nyu Moon and In Saeng Lee, Pro Se
For Intervenor Jeil Ventures Co., Ltd., Charles V. Ala` ilima
For Necessary Party American Samoa Government, Henry
Kappel, Legal Counsel to the Governor
For Defendants/Cross-Defendants/Counterclaimants Daewoosa
and Kil Soo Lee, Aitofele T. Sunia and Marie A. Lafaele
For Defendant/Cross-Claimant/Counterdefendant Tourism
Company 12, Paul F. Miller
For Defendant IMS (no appearance)
OPINION AND ORDER ON SECURED PROPERTY INTERESTS
AND ON ADJUDICATION OF INTERVENOR CLAIMS
The court consolidated CA No. 93-00 with CA No. 133-99 and CA No.
68-99 and permitted the several interventions and necessary party joinder
in special procedural twists after the trial of CA No. 133-99 and CA No.
68-99 in order to resolve the host of issues related to the business demise
of defendant Daewoosa Samoa, Ltd. (“Daewoosa”) in American Samoa.
Although the claims and counterclaims in CA No. 93-00 involve both
property interest and money claims between plaintiff New Star Trading
Company, Ltd. (“New Star”) and Daewoosa and defendant Kil Soo Lee
(“Lee”), by the parties’ stipulation, trial of this action on October 15 and
19, 2001, was limited to the property interest issues, and trial of other
issues was deferred. Trial of the claims of intervenors Seung Nyu Moon
(“Moon”), In Saeng Lee (“In Saeng”), and Jeil Ventures Co., Ltd.
(“Jeil”), and necessary party American Samoa Government (“ASG”) also
proceeded on October 15 and 19. Moon and In Saeng presented money
claims, Jeil and ASG claimed only property interests.
As of October 15, a stipulated judgment on account for unpaid utility
services had been entered in favor of intervenor American Samoa Power
Authority against Daewoosa, and the wage claims of intervenors Samoan
employees had been separated for later trial.
Discussion
The Parties, Business Relationships and Present Claims
[1] Daewoosa is a corporation organized under the laws of American
Samoa, principally to produce clothing. Lee is the president and principal
owner of Daewoosa. Based on the evidence introduced at the earlier trial
of CA No. 133-99 and CA No. 68-99 and the present trial, Lee controlled
and manipulated Daewoosa’s operations to achieve his personal ends,
essentially to the exclusion of any other shareholder’s interests. For
44
purposes of particular issues, an individual may so dominate a
corporation that the individuality of the person and corporation cease to
exist, and recognition of their separate existence would promote the
person’s unjust evasion of contractual obligations. Minifie v. Rowley, 202
P. 673 (Cal. 1921); Katenkamp v. Superior Court, 108 P.2d 1 (Cal
1940); Kohn v. Kohn, 214 P.2d 71 (Cal. Ct. App. 1950). Daewoosa was
clearly Lee’s alter ego with respect to the present issues under this test.
New Star is a business entity organized under the laws of the Republic of
Korea. New Star has engaged in business in American Samoa by
providing raw materials and manufacturing equipment, specifically
fabric, sewing machines, and related sewing machine equipment, to
Daewoosa—and Lee. New Star has been engaged in a business
relationship with Daewoosa and Lee at least since late 1999. The recent
legal and financial prob1ems of Daewoosa and Lee have led to a
cessation of business and a failure to pay outstanding debts and rents.
New Star claims that four containers of fabric and 92 sewing machines,
along with related equipment, still in the former Daewoosa factory
compound in ASG’s industrial park in Tafuna, American Samoa, were
delivered to Daewoosa—-and Lee—under a consignment contract rather
than sale, and accordingly, it has a right to have these items returned
under the theory of replevin.
Jeil, another corporation organized under the laws of the Republic of
Korea, was also contractually involved with Daewoosa—and Lee. It
claims possession of certain property, namely, four containers of
unfinished fabric at ASG’s main dock and certain garments in various
stages of completion at the former Daewoosa factory compound, as
consigned property.
On January 1, 1997, ASG leased to Daewoosa—and Lee—real property
for the Daewoosa factory compound. The lease was signed and then
properly recorded with the Territorial Registrar on February 3, 1997.
Daewoosa and Lee failed to keep up with rent according to the lease
terms and owed ASG $177,007.41, unpaid rent in the amount of
$160,915.65 plus 10% late charges (excluding the amount waived by
ASG of an additional 50~ late charge for payments more than 30 days’
delinquent) when the lease was terminated on January 30, 2001.
Under the terms of the lease, ASG held a lien on Daewoosa’s personal
property constructed or installed on the premises for unpaid rent or other
debts owed to ASG. The lease also required that the premises be kept
free from other liens in connection with Daewoosa’s operations. In order
to satisfy the rental and other debts of Daewoosa and Lee, ASG claims
ownership of all property still on the former Daewoosa lot, other than the
personal property claimed by Jeil. ASG’s assertion extends to the
property to which New Star also claims title.
45
Moon had a business relationship with Daewoosa—and Lee—from 1994
to 1999. He alleges that he was employed by Daewoosa and Lee, and
was not paid. He filed a claim with the Wage and Hour Board (“the
Board”), and the Board issued a finding in Moon’s favor in the amount
of $250,000.
In Saeng also had a business relationship with Daewoosa—and Lee. He
filed a claim for repayment of a cash loan, reimbursement of the cost of
foods supplied for Daewoosa’s employees, and compensation for
services rendered.
Jeil’s Property Interest Claim
Jeil’s claim to personal property by means of a consignment contract
with Daewoosa—and Lee—has not been challenged by ASG, New Star,
or Daewoosa and Lee. Moon and In Saeng have also not specifically
challenged the validity of Jeil’s claims. Review of this contract confirms
that the items were in fact consigned by Jeil to Daewoosa and Lee, and
not sold. Jeil therefore has title to and the right to recover possession of
personal property it claims.
Property Interest Claims of New Star and ASG
Title to the remainder of the personal property on Daewoosa’s factory
compound turns on the competing claims of ASG and New Star. The
ASG claim is based on both the debt of Daewoosa—and Lee—for
unpaid rents and the language of the recorded lease granting ASG title to
chattels remaining on the premises if Daewoosa and Lee cease to be
paying tenants. New Star claims that title to the garments and machinery
was never in Daewoosa’s name in the first place, that Daewoosa—and
Lee—were only a consignee of the property until final payment was
made to New Star per the parties’ contract.
[2-5] The line between what is legally a sale of goods and a consignment
of property can be difficult to discern. A true consignment leaves the
consignor with ownership, and the powers of recall and setting sale
price—the consignee receives a commission but not the profits of the
sale. See Manger v. Davis, 619 P.2d 687 (Utah 1980). In this type of
relationship the consignee has no interest in the consigned property that
may be obtained by creditors. Id. Using contract terms that give the
alleged consignor the right of reclamation if goods remain unsold,
without further development of the consignment relationship, does not
create a consignment. See Edgewood Shoe Factories v. Stewart, 107
F.2d 123, 125-26 (5th Cir. 1939) (when an obligation arises for the
alleged consignee to buy and pay for delivered goods, such that a suit
46
could be maintained by the alleged consignor as creditor, the transaction
is a sale or agreement to sell and not a consignment for sale). Though
not adopted in American Samoa, where the Uniform Commercial Code is
applicable, it is even more difficult to show a consignment. Bukfor, Inc.
v. Star Jewelry Co., Inc., 552 S.W.2d 522 (Tex. 1977) (there is a policy
preference in permitting parties to deal with debtors on assumption that
all property in debtor’s possession is unencumbered unless the contrary is
on public record).
[6] The relationship between New Star and Daewoosa and Lee
concerning the garments, sewing machines, and related sewing machine
equipment is contested. New Star relies mainly on its written agreement
with Daewoosa—-and Lee, titled “General Contract for Production,”
dated September 26, 1999. The language of this agreement does appear
to preserve title to the property in New Star. However, closer
examination of how the agreement is actually worded provides a different
picture. Daewoosa and Lee did not have the option to return unsold
materials to New Star by the terms of the contract. Even more telling are
the terms of the transfer of the sewing machines and related sewing
machine equipment. Daewoosa and Lee were bound to pay for the
machines and equipment, with interest, in accordance with a payment
schedule. Simply holding a right of reclamation if payments are not met
does not create a consignment. See Edgewood, 107 F.2d at 125-26.
Rather, these terms are more in line with a sale with a security interest. In
addition, two weeks later, on October 10, 1999, New Star and Lee, on
Daewoosa’s behalf, signed a document on New Star’s letterhead
confirming that New Star “sold” the sewing machines and related sewing
machine equipment to Daewoosa and Lee, and then outlining the
payment terms.
[7-8] New Star’s property interest claim also fails before those of ASG
for another reason. New Star did not record its interest in the property.
A conditional sale which is not a consignment leaves the seller with a
security interest. Shantilal Brothers, Ltd. v. KMST Wholesale, 15
A.S.R.2d 115 (Trial Div. 1990). A security interest or mortgage is not
valid against another creditor unless that creditor is put on actual notice
of the transaction or the interest is properly recorded with the Territorial
Registrar. See A.S.C.A. § 27.1510. The documents upon which New
Star depends to establish its interest are unrecorded security interests.
We also note that New Star failed to obtain a foreign corporation permit
to transact business in the Territory, in violation of A.S.C.A. § 30.0305,
and annual business licenses, in violation of A.S.C.A. § 27.0219(a). This
failure compounded the notice problem. Without this permit and license,
New Star has even more difficulty of establishing that ASG was or
should have been aware of New Star’s security interest.
47
As ASG did not have either constructive notice by recordation or actual
notice of New Star’s interest, New Star’s property interest is inferior to
ASG’s claim. Therefore, except for the property properly belonging to
Jeil, ASG has title to the personal property remaining on the former
Daewoosa factory compound in satisfaction of its lien for unpaid rent and
other debts owed by Daewoosa and Lee.
Moon’s Money Claim
Moon’s claim is for unpaid salary, founded on a written contract signed
partially after-the-fact in June 1996. Heung-Soo Ju, by his authority as
the president of Daewoosa in 1996, and Moon signed the contract. The
contract provides Moon as Daewoosa’s public relations officer with a
salary of $2,000 per month from June 1994 through May 1996, and with
additional duties as vice-president/treasurer, $25,000 per year from June
1996. Moon was terminated by Lee or resigned his position, or both, on
March 27, 1999. Thus, Moon earned, under the terms of his contract,
and was not paid, $48,000 from June 1994 through May 1996, and
$70,625 from June 1996 to March 27, 1999, a total of $118,625.
Moon supported his claim with the decision of ASG’s Wage and Hour
Board, issued on March 10, 2000, awarding Moon $250,000 in unpaid
wages. Even though the award far exceeds the terms of Moon’s
employment contract, the Board apparently accepted at face value the
$250,000 claim submitted by Moon. Perhaps the Board took into
account Daewoosa business expenses advanced and the value of
unreturned personal property provided by Moon, which he put into
evidence. Even if so, however, these amounts are not salary, and Moon
has not provided a contractual basis for any reimbursement of expenses
or return of property.
[9-10] In any event, this court is not being asked to judicially review a
final administrative decision for errors of law, a matter ordinarily within
the exclusive jurisdiction of the Appellate Division of this court, see
A.S.C.A. §§ 4.1040, 4.1041, 4.1044, but rather to award money damages
for breach of contract and, perhaps, as enforcement of the Wage and
Hour Board decision. As such, the Trial Division has jurisdiction and is
not bound by the erroneous salary calculation determined by the Board.
See A.S.C.A. § 4.1040(b); see also Model State Administrative
Procedure Act § 5-101 (1981).
Moon is accordingly entitled to recover $118,625 from Daewoosa and
Lee.
In Saeng’s Money Claim
48
In Saeng’s claim is for $12,658.58 in reimbursement of the cost of food
and materials he supplied to Daewoosa and Lee for Daewoosa’s
operations, $15,000 for the unpaid balance of a loan that he made to
Daewoosa and Lee, and $16,900 as compensation for services rendered
to Daewoosa and Lee, a total of $44,558.58, Lee confirmed the nature
and amount of these debts in December 2000, and did not’ contest them
during trial of In Saeng’s claim. The claim is supported by evidence and
is unrefuted.
In Saeng is accordingly entitled to recover $44,558.58 from Daewoosa
and Lee.
Order
1. New Star’s claim to any right to take possession of the fabric, 92
sewing machines, and related sewing machine equipment is denied.
2. Jeil is awarded title and possession of the personal property as it
claims.
3. Based on the lien provided in the ASG lease to Daewoosa and Lee,
ASG is awarded title and possession to all other items of personal
property remaining on the premises of Daewoosa’s former factory
compound in Tafuna, including but not limited to the fabric, 92 sewing
machines, and related sewing machine equipment claimed by New Star,
to satisfy its claim of $177,007.41 against Daewoosa and Lee.
4. Moon is awarded judgment against Daewoosa and Lee, jointly and
severally, in the amount of $118,625, plus post-judgment interest at the
rate of 6% per annum.
5. In Saeng is awarded judgment against Daewoosa and Lee, jointly and
severally, in the amount of $44,448.58, plus post-judgment interest at the
rate of 6% per annum.
It is so Ordered.
**********
49
BILL TEDRECK, Plaintiff,
v.
POUFA NOGA and NIKO NOGA,
a.k.a. FALANIKO NOGA, Defendants.
High Court of American Samoa
Trial Division
CA No. 81-00
February 27, 2002
[1] The common law of contracts applies in American Samoa.
[2] The parol evidence rule is part of the common law of contracts and
applies in American Samoa.
[3] Under the parol evidence rule, extrinsic evidence is inadmissible to
contradict clear contract terms.
[4] A court should look to extrinsic evidence only if the contract is
ambiguous on its face.
[5] A contract that provides that it may be canceled at any time still
requires reasonable notice for its cancellation.
Before RICHMOND, Associate Justice, and LOGOAI, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendants, Marie A. Lafaele
OPINION AND ORDER
Facts
On January 11, 1999, plaintiff Bill Tedreck (“Tedreck”) entered into a
loan agreement with defendant Poufa Noga (“Poufa”) for $8,000.00.
The loan agreement was for purchase of equipment and travel and was
part of an arrangement for the Penina Boyz Band to be the regular band
at Tedreck’s night club, the Country Club, beginning on January 14,
1999. Poufa and her husband, defendant Niko Noga (“Niko”), organized
the band. The agreement called for an interest free loan that was to be
repaid through a $50.00 deduction from the band’s wages for each of the
three weekly shows to be performed. The equipment purchased was to
50
remain under Tedreck’s ownership and in his possession until the loan
was paid off.
On the same day, January 11, 1999, Tedreck and Poufa entered into
another written agreement memorializing the employment terms of the
Penina Boyz Band. This agreement contained, among other details,
specific language providing that the nature of the employment was “atwill” and that either party could end the relationship at any time. The
agreement also indirectly referenced the loan agreement.
Between January 11, 1999, and May 6, 1999, Poufa made repayments
totaling $2,425.00 to Tedreck. On May 6, 1999, Tedreck and Poufa
entered into a third agreement adding $1,250.00 to the amount owed in
exchange for an advance of $600.00 and Poufa’s assumption of her
parents’ debt of $650.00 owing to Tedreck. This third agreement called
for Poufa to maintain loan payments under the terms of the original loan
agreement. The agreement also stated that “should either party terminate
the relationship or the country club be sold, all agreements remain
binding.” Sometime in mid-June 1999, the ownership of the Country
Club passed from Tedreck to the American Samoa Government
(“ASG”). Poufa and Niko received a letter from ASG on June 18, 1999,
terminating their services at the Country Club. Poufa continued to make
payments to Tedreck until July 2, 1999, at which point the outstanding
balance on the loan agreement was $5,975.00.
On July 12, 1999, the parties entered into an amended contract. Niko
was an additional signatory to this agreement and became an obligor to
repay the balance owed on the January 11 loan transaction. This
agreement allowed Poufa and Niko to take control of, and responsibility
for maintaining, the music equipment purchased with the money from the
original loan agreement. In exchange, Poufa and Niko agreed to make
payments on the remaining $5,975.00 loan at a rate of $100.00 or more a
week until the loan was repaid. Tedreck retained ownership of the
equipment until full payment of the loan.
Discussion
A The original loan agreement contained no guarantee of continued
employment, and the parol evidence rule prohibits introduction of
any evidence of an oral agreement changing those terms.
[1-4] The common law of contracts applies in American Samoa.
Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1, 5 (1987).
The parol evidence rule is part of the common law of contracts and
applies to matters before this court. Id. This rule seeks to, “preserve
integrity of written agreements by refusing to permit contracting parties
51
to attempt to alter import of their contract through use of
contemporaneous oral declarations.” BLACK’S LAW DICTIONARY 1117
(6th ed. 1990). As a general rule, extrinsic evidence is inadmissible to
contradict clear contract terms. Audit Servs. v. Rolfson, 641 F.2d 757,
761 (9th Cir. 1981). The court should look to extrinsic evidence only if
the contract is ambiguous on its face. United States v. Johnson, 43 F.3d
1308, 1310 (9th Cir. 1995); Pierce County Hotel Employees &
Restaurant Employees Health Trust v. Elks Lodge, B.P.O.E. No. 1450,
827 F.2d 1324, 1327 (9th Cir. 1987).
The two written agreements of January 11, 1999, are interwoven through
their terms and should be read together. The loan was certainly part of
the employment package. However, the employment agreement clearly
creates an at-will employment situation. The employment term is
unambiguous. Tedreck was not obligated to employ Poufa and Niko, and
their band, for any specific length of time, and we will not examine parol
evidence to find otherwise.
B. Poufa and Niko were entitled to reasonable notice of cancellation of
the employment contract.
[5] Poufa and Niko counterclaim for loss of expected income and costs
incurred with the employment contract. This claim would only succeed
if there was a contractual obligation that was breached by Tedreck. As
discussed above, the contract was at-will and contained no continuing
obligation on Tedreck. However, a contract that provides that it may be
canceled “at any time” still requires reasonable notice for its cancellation.
JOHN D. CALAMARI & JOSEPH M. PERILLO, THE LAW OF CONTRACTS §
4.12 (4th ed. 1998). In this matter, Poufa and Niko received constructive
notice of the cancellation of the contract through receipt of ASG’s letter
terminating their services. Poufa and Niko certainly knew, upon
receiving ASG’s letter, that Tedreck was no longer the owner of the
Country Club and that the new owner did not require their services.
When looking at the totality of the circumstances surrounding the
termination of the contract, including the preclusion of advanced notice
because of the sale of the club, we find that the notice given was
reasonable and that the counterclaim is without merit and should be
dismissed.
C. The obligations of Poufa and Niko are controlled by the agreement
of July 12, 1999.
After the Country Club had been sold and after Poufa and Niko received
notice that their band services were no longer needed, Poufa and Niko
entered into a new agreement with Tedreck on July 12, 1999, to pay off
the debt incurred in the original loan agreement. Therefore, in addition
52
to the employment contract being at-will, and in addition to that contract
being terminated with reasonable notice, this new agreement, requiring
them to repay $5,975.00 at a rate of at least $100.00 a week, created an
obligation for repayment. While Poufa and Niko already owed this debt,
the transferring of possession of the music equipment by Tedreck
constituted consideration for the new agreement. Poufa and Niko made
three $100.00 payments to Tedreck on the new agreement, but then
defaulted on further payments. As such, Poufa and Niko are in default on
their loan obligations to Tedreck in the principal amount of $5,675.00.
Order
The counterclaim filed by Poufa and Niko against Tedreck is dismissed.
Poufa and Niko shall pay Tedreck the sum of $5,675.00 on his claim
against them. As the loan was interest free, so will be the judgment until
the date of this decision. Interest shall accrue at the judgment rate of 6%
per annum beginning with the entry date of this judgment. Payment of
this judgment in full transfers title of the musical equipment to Poufa and
Niko.
It is so Ordered.
**********
53
JIANG SHUNZHE, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE, Defendants.
____________________
NGUYEN THI NGA, et al., Plaintiffs,
v.
DAEWOOSA SAMOA, LTD., KIL-SOO LEE,
TOURISM COMPANY 12, and IMS, et al., Defendants,
and
TOURISM COMPANY 12, Cross-Claimant/Counterdefendant,
v.
DAEWOOSA SAMOA, LTD. and KIL-SOO LEE,
Cross-Defendants/Counterclaimants,
____________________
NEW STAR TRADING COMPANY, LTD.,
Plaintiff/Counterdefendant,
v.
DAEWOOSA SAMOA, INC., and KIL-SOO LEE,
Defendants/Counterdefendants.
____________________
AMERICAN SAMOA POWER AUTHORITY,
SEUNG KYU MOON, IN SAENG LEE, JElL VENTURES CO.,
LTD., and SAMOAN EMPLOYEES, Intervenors.
____________________
AMERICAN SAMOA GOVERNMENT, Necessary Party.
High Court of American Samoa
Trial Division
CA No. 68-99
CA No. 133-99
CA No. 93-00
April 16, 2002
54
[1] Certification of a class action under T.C.R.C.P. 23(b)(3) is
appropriate where questions of law and fact common to members of the
class predominate over any questions affecting only individual members,
and a class action would be superior to other available methods for fair
and efficient adjudication of the controversy.
[2] In order to maintain a class suit, each plaintiff must recover damages
at the same rate
[3] The primary function of the service of process rules is to bring notice
of the commencement of an action to a defendant’s attention and to
provide a ritual that marks the court’s assertion of jurisdiction over the
lawsuit.
[4] The Jurisdictional Immunities of Foreign States Act contains
provisions for the service of process upon foreign governmental
instrumentalities and agencies.
[5] The Jurisdictional Immunities of Foreign States Act was enacted to
provide access to courts of the United States, its states and territories, for
resolution of ordinary legal disputes involving a foreign sovereign, their
subdivisions, agents, and instrumentalities.
[6] With regard to application of the Jurisdictional Immunities of Foreign
States Act, the High Court of American Samoa constitutes a court of the
United States.
[7] Service in accordance with the Jurisdictional Immunities of Foreign
States Act is made upon a foreign state’s agency or instrumentality by
delivery of a copy of the summons and complaint to an officer, a
managing or general agent, or to any other agent authorized by
appointment or by law to receive service of process in the United States.
[8] Individual who served as authorized representative for two foreign
government-related entities, who regularly reported to such entities, and
who was specifically entrusted to deal with legal matters pertaining to
employment of workers from such foreign country, was an “agent” under
the Jurisdictional Immunities of Foreign States Act and authorized to
receive process on behalf of such entities in employment-related case.
[9] Under the Jurisdictional Immunities of Foreign States Act, a court has
subject matter jurisdiction to adjudicate suits against foreign governmentrelated agencies so long as the activity concerned is not covered by the
JIFSA’s immunity provisions.
55
[10] A foreign sovereign is not immune from a court’s jurisdiction in any
case in which the action is based upon a commercial activity carried on in
the United States by the foreign state.
[11] In order to satisfy the exception to immunity under the Jurisdictional
Immunities of Foreign States Act, the alleged conduct must be a
commercial activity, in which a private actor could take part; and there
must be a nexus between the plaintiffs’ action and the commercial
activity.
[12] Where foreign, government-related entities recruited, exported, and
employed workers in a for-profit garment manufacturing company in
American Samoa, such actions clearly constituted commercial activity in
which a private actor could equally participate and was the premise of the
workers’ lawsuit. Therefore, such entities were not immune to suit under
the Jurisdictional Immunities of Foreign States Act.
[13] Under the Fair Labor Standards Act, employees are provided with a
civil right of action against any employer who violates certain provisions
of the act.
[14] Under the Fair Labor Standards Act, the Secretary of Labor is
authorized to sue on behalf of aggrieved employees for injunctive or
equitable relief.
[15] Once the Secretary of Labor files a complaint under section 217 the
Fair Labor Standards Act, the Secretary’s suit takes precedence over any
employee’s private suit brought under the act.
[16] The preclusive effect of a Fair Labor Standards Act suit filed by the
Secretary of Labor is limited to those suits filed under § 217 of the FLSA
or which are filed in a federal district court.
[17] The term “employ” in the FLSA should be interpreted expansively
and the term “employer” covers some parties who might not qualify as
such under a strict application of traditional agency law principles.
[18] Whether the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records are factors which
provide guidance for courts in determining whether a party constitutes an
“employer” under the Fair Labor Standards Act, yet they are neither
exclusive nor conclusive factors.
56
[19] Foreign, government-related entities constituted “employers” within
the meaning of the Fair Labor Standards Act where such parties had the
power to hire and fire workers; were instrumental in screening and
selecting the workers; possessed authority to threaten workers and their
families with penalties; utilized supervisors to control workers’ everyday
work-place situation; helped determine the workers’ rate of pay, method
of payment, and hours of work; and maintained employment records.
[20] Section 216(b) of the Fair Labor Standards Act requires employees
similarly situated with named plaintiffs to provide the court with
affirmative notice of their intentions to be part of the lawsuit.
[21] In order to “opt in” to a Fair Labor Standards Act lawsuit, need only
filing a written consent with the court where the suit is pending.
[22] The Fair Labor Standards Act provides minimum substantive rights
to employees which may not be waived by agreement.
[23] Section 206(a) of the Fair Labor Standards Act prescribes that no
employee employed in American Samoa may be paid less than American
Samoa’s established minimum wage.
[24] In order to calculate the hourly rate paid under the Fair Labor
Standards Act, the court multiplies the monthly salary by 12 to obtain the
total pay for the year and divides by 52 to obtain the pay per week, and
again by 40 to determine the hourly rate.
[25] In garment manufacturing, overtime must be paid at the rate of one
and one-half times the employee’s regular rate of pay.
[26] Any agreed-upon deduction from overtime pay that effectively
diminishes such pay below the statutory requirement is invalid.
[27] Under the Fair Labor Standards Act, it is unlawful for an employer
to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to
be instituted any proceeding under the act, or has testified or is about to
testify in any such proceeding.
[28] Remedies under the Fair Labor Standards Act include, but are not
limited to, back-wages, attorneys’ fees, costs, and liquidated damages.
[29] Liquidated damages of an amount equal to unpaid minimum and
overtime wages are recoverable against an employer, unless there is
evidence that an employer acted in good faith and attempted to comply
with Fair Labor Standards Act requirements.
57
[30] An employer’s knowledge that an employee might be covered by the
Fair Labor Standards Act, and failure to further inquire into the status of
that employee is sufficient to establish the employer’s lack of good faith.
[31] Absent the parties’ agreement on the governing law, or an American
Samoa statutory or common-law choice of law standard, the Court will
turn to common law generally to provide guidance in determining the
choice of law applicable to a contract.
[32] The general rule is that the law of the place of performance governs
the interpretation of a contract for services, and will only be trumped if
another state has a more significant relationship with the transaction or
parties.
[33] Although a corporate officer or owner is normally not subject to
personal liability for the acts of the corporation, the corporate shroud of
protection from liability may be pierced, and the corporate officer or
owner held personally liable for the conduct of the corporation, if the
corporation is nothing more than his alter ego.
[34] A party is an alter ego of a corporation when there is such a unity of
interest and ownership that the individuality, or separateness, of said
person and corporation has ceased and the facts are such that an
adherence to the fiction of the separate existence of the corporation
would, under the particular circumstances, sanction a fraud or promote
injustice.
[35] The alter ego doctrine treats the corporation and the dominating
person as one person, so that any act committed by one is attributed to
both, and if either is bound, by contract, judgment, or otherwise, both are
equally bound.
[36] Where defendant was the sole real shareholder and owner of
corporation during the majority of the time at issue, did not adhere to
corporate formalities, siphoned off corporate funds for his own use, and
left corporate bank accounts barren of funds, court rightly determined
that alter ego doctrine applied.
[37] To determine whether an employment relationship exists between
two parties the court must look beyond the terms of the contract.
[38] In determining whether an employment relationship exists, the
traditional common-law rule focuses the inquiry on the alleged
employer’s degree of control over the alleged employee.
58
[39] A principal will be bound and liable for the acts of his agent
performed with actual or apparent authority from the principal, and
within the scope of the agent’s employment.
[40] Where employment contracts were illegal under the Fair Labor
Standards Act, court possessed the ability to modify the illegal terms to
make them conform to the law.
[41] The court may modify an illegal contract term without invalidating
the entire contract.
[42] Contract requirement that workers pay sums of money up front was
determined to be an illegal ploy to defraud workers and their families of
money, and to obligate workers to term of their employment contracts
and said contract term was properly stricken—thereby obligating
employer to repay said amounts.
[43] When a class action is brought on behalf of multiple aggrieved
employees against employer, where possible individualized remedies
should be utilized because it will compensate the claimants without
unfairly penalizing the employer.
[44] Where court was unable to make individual back pay awards for
certain workers due to lack of payroll records, court properly employed a
class-wide method to ascertain the workers’ damages by calculating the
average overtime earned and payments received of the named and
identifiable members of each corresponding worker’s group.
[45] Where live-in workers, who were promised room and board as part
of their employment contracts, were given substandard meals and
accommodations, including a total lack of fresh fruits or vegetables, such
workers were not required to pay for room or board and were instead
entitled to compensation for being subjected to such poor living
conditions.
[46] American Samoa law requires that every alien carry their
registration card on their person at all times.
[47] Where court determined that company illegally retained workers’
passports, and registration cards, without any legal right, and as a means
of limiting the workers’ egress and ingress from the compound, such
conduct warranted an independent assessment of damages.
[48] The immigration laws allow an alien worker’s sponsor almost
unlimited discretion to revoke sponsorship, the only requirement being
that the sponsor provide written notice to the immigration board and the
59
person sponsored of his or her intent to end the alien’s sponsorship.
[49] Where workers were required to pay a substantial initial fee as part
of their employment such clause of employment contract was held to be
unconscionable.
[50] Generally, a contract to indemnify against the consequences of a
wrongful act, or a contract of indemnity growing immediately out of, and
connected with, an illegal or immoral act is void and will not be enforced
by a court of justice.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Vietnamese Plaintiffs, Virginia L. Sudbury and Christa
Tzu-Hsiu Lin
For Chinese Plaintiffs, Afoa L. Su`esu`e Lutu and Deanna
Sanitoa
For Plaintiff/Counterdefendant New Star Trading Company,
Ltd., Marshall Ashley
For Intervenor American Samoa Power Authority, Roy J.D.
Hall, Jr.
For Intervenors Seung Kyu Moon and In Saeng Lee, Pro Se
For Intervenor Jeil Ventures Co., Ltd., Charles V. Alai`ilima
For Necessary Party American Samoa Government, Henry
Kappel, Legal Counsel to the Governor
For Defendants/Cross-Defendants/Counterclaimants Daewoosa
Samoa, Ltd. and Kil-Soo Lee, Aitofele T. Sunia and Marie A.
Lafaele
For Defendant/Cross-Claimant/Counterdefendant Tourism
Company 12, Paul F. Miller
For Defendant IMS (no appearance)
OPINION AND ORDER
A class of immigrant workers from China in CA No. 68-99 (“the Chinese
workers”) filed suit against defendants Daewoosa Samoa, Ltd.
(“Daewoosa Samoa”) and Kil-Soo Lee (“Lee”) for allegedly breaching
terms of their employment contracts, and committing other civil wrongs,
all stemming from their employment at the Daewoosa Samoa garment
factory in American Samoa.
Later, a class of immigrant workers from Vietnam in CA No. 133-99
(“the Vietnamese workers”) filed suit against Daewoosa Samoa and Lee
for allegedly violating the federal Fair Labor Standards Act (“FLSA”),
60
29 U.S.C.A. §§ 201-219,11 breaching terms of their employment
contracts, and committing other civil wrongs, in connection with their
employment at the same Daewoosa Samoa facility. Initially, the
American Samoa Government (“ASG”) and other individuals were also
named as defendants in CA No. 133-99, but they were dismissed from
the action at various junctures during the pretrial proceedings.
CA No. 68-99 and CA No. 133-99 were consolidated in due course. Still
later, defendants IMS12 and Tourism Company 12 (“TC12”) were added,
with the court’s permission, as defendants in CA No. 133-99.
Plaintiff New Star Trading Company, Ltd. (“New Star”) filed a separate
action, CA No. 93-00, against Daewoosa and Lee to recover certain
property allegedly owned by New Star, but in the possession of
Daewoosa Samoa and Lee. Daewoosa Samoa and Lee counterclaimed
for monetary damages in this action. We consolidated CA No. 93-00
with CA No. 68-99 and CA No. 133-99, and permitted intervention by
the American Samoa Power Authority, Seung Kyu Moon, In Saeng Lee,
Jeil Ventures Co., Ltd., and the Samoan employees, and joinder of
necessary party ASG, in an effort to resolve all issues involving
Daewoosa Samoa and Lee in the same bundle. These additional
procedural events, however, took place after the trial of CA No. 68-99
and CA No. 133-99. We therefore made it clear that in the absence of an
unexpected compelling reason, we would not necessarily issue our
decisions in CA No. 93-00 and on the intervenor and necessary party
issues simultaneously with our decision in CA No. 68-99 and CA No.
133-99. As it turned out, we actually disposed of CA No. 93-00 and the
intervenor and necessary party claims earlier in this manner.
On January 10, 2000, under the American Samoa injunction laws,
A.S.C.A. §§ 43.130l-.l313, the U.S. Secretary of Labor filed a suit in this
court, CA No. 2-00, against Daewoosa Samoa and Lee to permanently
enjoin Daewoosa Samoa and Lee from violating FLSA §§ 206, 207,
211(a)(1), and 215(a)(1), (a)(2), and (a)(5). This action was brought in
connection with the investigation by the Department of Labor of
nonpayment of minimum and overtime wages owed with respect to 71 of
the Daewoosa Samoa foreign workers. IMS and TC12 were not parties.
Pursuant to the parties’ stipulation, Daewoosa and Lee were preliminarily
enjoined on February 10, 2000, from violating the FLSA as set forth by
the terms of a proposed consent judgment signed by the parties on
11
All citations in this opinion and order to FLSA generally and to
specific FLSA sections include reference to 29 U.S.C.A.
12
Though joined by this name, IMS is actually the acronym for
International Manpower Supply. IMS will be identified by the acronym
throughout this opinion and order.
61
August 2, 1999, and filed with the stipulation. Since then, the action has
stood still and remains unresolved. The impact of CA No. 2-00 on CA
No. 68-99 and CA No. 133-99 is discussed below.
Introduction
The combined CA No. 68-99 and CA No. 133-99 cases are made more
complicated by the diverse language and culture of the parties and
witnesses involved. The plaintiffs originate from either China or
Vietnam. Daewoosa Samoa’s owners hail from Korea. Contract
performance took place in American Samoa. However, the negotiation
and finalization of the employment contracts transpired in either China or
Vietnam.13
The social barriers between the parties was evident before and during
trial. Throughout the proceedings, testimony was, as became necessary or
appropriate, translated into five different languages, English, Samoan,
Korean, Vietnamese, and Chinese. For the most part, amateur translators
were necessarily employed, and unsurprisingly, the translations were
difficult and at times ineffective.
Counsel did little to abridge this complexity. The pretrial maneuvering
was intricate and exhaustive. During the trial, perhaps one of lengthiest
in the recent history of this court, they complicated our fact-finding
mission by introducing heaps of unmarked, seemingly irrelevant
evidence, leaving us with the task of filtering through and searching for
relevant documents and records amid these piles. Nonetheless, we were
ultimately able to assemble the relevant facts—and apply applicable legal
principles to them.
The major entities on the defense side of this case include two
corporations, two Vietnamese employment recruiting agencies, and
several individuals. Both corporations are similarly named. Daewoosa
Samoa, which was incorporated in American Samoa, was the operational
employer of the Chinese workers and the Vietnamese workers. U.S.A.
Daewoosa, Ltd. (“Daewoosa USA”), which was established in Korea,
appeared as the named employer to the Vietnamese workers’
employment contracts. Individuals affiliated with these corporations
include Lee, a Korean national, the primary owner and apparent manager
of Daewoosa Samoa, and Um Sang Hee (“Hee”), a Korean national, the
president of Daewoosa USA, shareholder and vice-president of
Daewoosa Samoa, and primary negotiator for and signatory to the
13
The contracts were initially written in either English or Vietnamese,
and accompanied by their Vietnamese or English translations,
respectively.
62
Vietnamese workers’ employment contracts.
IMS and TC12 are Vietnamese government-connected agencies
arranging overseas employment of Vietnamese nationals. They assisted
in recruiting, negotiating, and implementing the Vietnamese workers’
employment with Daewoosa Samoa. TC12 is organized under a general
directorate, which is governed by the government of Vietnam. Because
both IMS and TC12 operate Vietnamese labor export organizations, all
of their labor contracts must be approved and authorized by the Vietnam
Department of Administration of Foreign Employed Labour Force, the
Vietnam government agency empowered to oversee all foreign labor
contracts. Nguyen Viet Chuyen (“Chuyen”), a Vietnamese national
employed by TC12, became charged with supervisory responsibility over
the IMS and TC12 Vietnamese workers at the Daewoosa Samoa factory.
Procedural History
The complaints in CA No. 68-99 and CA No. 133-99 were filed,
respectively, on July 2, 1999 and December 23, 1999. After the
complaint was filed in CA No. 133-99, this action became a tangled web
of preliminary filings and orders. On December 29, 1999, the court
issued a stipulated preliminary injunction preventing Daewoosa Samoa:
(1) from removing or causing the removal of the Vietnamese workers
from American Samoa or from otherwise disturbing the Vietnamese
workers; and (2) from terminating any immigration sponsorships of the
Vietnamese workers without affording them opportunities to consult with
the Law Office of Virginia Sudbury and to have a hearing before ASG’s
Immigration Board.
On January 27, 2000, the Vietnamese workers requested class action
certification under T.C.R.C.P. 23, in connection with their amended
complaint filed on January 14, 2000 and certain proposed amendments to
the amended complaint.
On February 24, 2000, we ruled out
certification of a Rule 23 class action under the purview of the FLSA, but
left open the certification as to non-FLSA claims.14 In the same ruling,
we granted the workers leave to amend their complaint to allege their
statutory claims under the FLSA.
On April 11, 2000, we consolidated CA No. 68-99 and CA No. 133-99,
and certified the class action status of all the workers’ claims alleged in
these cases, except those rooted in the FLSA, which were later amended.
Accordingly, on January 12, 2001, counts 6 and 7 were amended to
allege violations of FLSA §§ 206(a) and 207(a)(1), respectively, and
counts 13 and 19 were amended to allege violations of FLSA § 215(a)
14
The order slightly amended an earlier order dated February 22, 2000.
63
(3). On January 17, 2001, approximately 168 Vietnamese workers filed
signed consents to the FLSA litigation.
Certain named defendants were dismissed and added in CA No. 133-99.
On January 25, 2000, ASG was dismissed as a party defendant. We
dismissed as defendants Moon Seung Kyu on February 18, 2000, and
Mary and Togiola Tulafono on April 4, 2000. Jo Heung Soo was
dismissed as a defendant on February 6, 2001. On December 15, 2000,
IMS and TC12 were added as defendants with the court’s permission. An
amended complaint reflecting this addition of parties was filed, and on
December 21, 2000, TC12 answered and cross-claimed against
Daewoosa Samoa for contractual specific performance and monetary
damages. IMS did not answer or otherwise in any manner appear or
participate in the proceedings of CA No. 133-99.
Since the filing of CA No. 133-99, the Vietnamese workers called upon
the court numerous times to adjudicate pretrial contempt filings against
Daewoosa Samoa and Lee for violating the court’s orders and harassing
the Vietnamese workers because of the their involvement in this lawsuit.
On February 18, 2000, we held Daewoosa Samoa and Lee in contempt
for attempting to withhold the identification cards of one of the
Vietnamese workers and for threatening to send five of them back to
Vietnam unless they returned to work. We also required Daewoosa
Samoa and Lee, or their agents: (1) to return passports to the Vietnamese
workers; (2) to not confiscate their identification cards when the workers
leave the compound; (3) to provide copies of Immigration Board
decisions affecting the workers to their attorneys; and (4) to furnish the
workers nutritious meals.
On April 4, 2000, we held Daewoosa Samoa and Lee in contempt for
attempting to send at least one more of the Vietnamese workers out of the
territory without consulting their attorney in compliance with the
December 29, 1999, preliminary injunction. Additionally, we enjoined
Daewoosa Samoa and Lee from preventing any of the Vietnamese
workers from working at Daewoosa Samoa because of their involvement
as plaintiffs in this lawsuit.
On July 14, 2000, we enjoined Daewoosa Samoa and Lee: (1) from
imposing overcrowded living conditions on the Vietnamese workers,
including but not limited to situations in which any of the workers must
share single beds; (2) from pressuring any of the workers to terminate or
in any other manner prevent or discourage them from prosecuting these
actions; and (3) from in any manner preventing the workers from
exercising their choice of associates in American Samoa outside of
Daewoosa Samoa’s premises.
64
On September 22, 2000, we ordered Daewoosa Samoa and Lee to
immediately put back to work 38 of the Vietnamese workers. Daewoosa
and Lee listed these 38 workers in a letter to ASG’s Immigration Board,
citing unsubstantiated reasons for returning them to Vietnam. On
September 26, 2000, we ordered Daewoosa Samoa and Lee to return all
of the Vietnamese workers to work, including specifically eight workers
named as “troublemakers” and prevented from working by Lee because
they attended the September 22, 2000, court hearing, no later than the
following Monday, October 2, 2000.
On October 23, 2000, we denied the motion by Daewoosa Samoa and
Lee to terminate several of the Vietnamese workers who were pregnant,
in the absence of any established safety or other legitimate concern, and
ordered that the pregnant workers be returned to appropriate work, with
retroactive pay from October 2, 2000. We further held Daewoosa Samoa
and Lee in contempt for failing to heed earlier orders.
On December 14, 2000, we issued orders on several matters. Included
were: (1) directions to Daewoosa Samoa and Lee to fully pay the wages,
less authorized tax deductions, of the Vietnamese workers for the period
from October 2 to November 28, 2000, without any limitation on other
unpaid wage obligations; (2) directions to Daewoosa Samoa and Lee, in
accordance with their commitment on December 7, 2000, to arrange and
pay for transportation of the Vietnamese workers desiring to return to
Vietnam, the first 35 within three weeks, and the remaining workers
thereafter in groups of varying size at reasonable intervals; (3)
permission by stipulation to preserve the testimony of returning
Vietnamese workers by pretrial videotaped depositions; and (4) denial as
impractical of a requested order preventing Daewoosa Samoa and Lee
from contacting the Vietnamese workers.
The requested no-contact order was prompted by the altercation between
several Samoan employees and Vietnamese workers on November 28,
2000. This event arose out of arguments between Daewoosa Samoa’s
floor manager and the Vietnamese workers who were not working and
Lee’s directions to the floor manager to remove the workers. One of the
Vietnamese workers, Truong Thi Le Quyen, lost an eye during the
ensuing melee. We did not make detailed findings on this event and
responsibility for it because the evidence presented was inconclusive and
the liability issue was not then before us. Clearly, however, many of the
Vietnamese workers feared returning to work after this incident and were
motivated to return to Vietnam.
On January 10, 2001, we granted the Vietnamese workers’ application to
establish a receivership over Daewoosa Samoa, based on its apparent
65
financial instability, to secure Daewoosa Samoa’s remaining assets,
oversee the provision of food to the workers and their repatriation, and
evaluate Daewoosa Samoa’s ability to continue business operations. On
January 12, 2001, we appointed Southwest Marine of Samoa, Inc. as the
receiver.
When the need no longer existed, we terminated the receivership and
discharged the receiver on June 27, 2001. At that time, the garment
factory had been inoperable since January 2001 and had no prospect of
resuming operations, most of Daewoosa Samoa’s immigrant workers had
departed American Samoa, and ASG had completed an initial inventory
of property on the Daewoosa Samoa premises and agreed to assume
custody of and security responsibility for the factory compound and
property located there.
Well after class certification, in August of 2000, one of the representative
workers, Nu Thi Nga, who was recruited by IMS and arrived in
American Samoa on March 8, 2000, died from causes unrelated to this
lawsuit.15 Although the Vietnamese workers did not seek a substitute for
the deceased representative plaintiff in accordance with T.C.R.C.P.
25(a), this cause of action with regards to the remaining named and
unnamed Vietnamese workers was not extinguished, because class
certification had been court approved prior to the representative
plaintiff’s death, and other named representative plaintiffs remained.16
Finally, on January 18, 2001, trial began and, after 18 trial days,
concluded on February 22, 2001. Counsel Virginia L. Sudbury and
Christa Tzu-Hsiu Lin for the Vietnamese plaintiffs, Marie A. Lafaele for
Daewoosa Samoa and Lee, and Paul F. Miller for TC12 were present
throughout the trial. Counsel Afoa L. Su`esu`e for the Chinese plaintiffs
was present at proceedings immediately pertaining to his clients. The
remaining counsel did not attend the trial. IMS was not represented by
counsel and did not present any evidence.
Facts
15
Nu Thi Nga died together with another Vietnamese worker, Dung Kim
Thi Vu. However, at the time of her death, Dung Kim Thi Vu was not a
representative plaintiff in this lawsuit.
16
Generally, when a class action has been certified, it acquires a legal
status separate from the interest of the named representative plaintiff. See
Sosna v. Iowa, 419 U.S. 393, 399 (1975); see also Jones v. Jones, 148
F.R.D. 196 (W.D.KY. 1993) (allowing the unorthodox pursuit of a class
action complaint although representative plaintiff died a year before class
certification).
66
Workers’ Recruitment
This saga apparently originated in Korea. Events then revolved around
travel to China and Vietnam, and all the while traversing back and forth
between these countries and American Samoa.
Sometime in September 1998, Lee traveled to China and enlisted
workers to do miscellaneous jobs at the Daewoosa Samoa garment
manufacturing facility in American Samoa. A total of 18 Chinese
nationals, now comprising the Chinese workers, were enlisted. They
arrived in American Samoa in two separate groups. An initial group of
13 arrived in October 1998, and began working on October 14, 1998.
The remaining five arrived sometime in February 1999, and began
working on March 1, 1999.
At about the same time, Lee sought employees from Vietnam to work at
the Daewoosa Samoa garment factory. He specifically authorized Hee,
president of Daewoosa USA, to enter into contracts on behalf of
Daewoosa Samoa for this purpose. Hee, in turn, engaged IMS and TC12
to assist in recruiting Vietnamese nationals to work for Daewoosa
Samoa. Contract negotiations went back and forth between the parties.
IMS and TC12 representatives either traveled to Daewoosa USA
headquarters in Korea or Daewoosa USA representatives, Hee and Song
Dae Lee, traveled to Vietnam to negotiate and finalize the terms of the
contracts for Vietnamese nationals, most of whom now comprise the
Vietnamese workers. Daewoosa USA representatives, with IMS and
TC12 representatives, screened the prospective Vietnamese applicants
identified by IMS and TC12. They eventually recruited more than 250
Vietnamese nationals to work at the Daewoosa Samoa garment factory.
Although most of the Vietnamese workers were recruited by either IMS
or TC12, approximately 6 Vietnamese workers were independently
recruited by Daewoosa Samoa and Lee.
The Vietnamese workers arrived in American Samoa in groups
throughout the years 1999 and 2000. Groups of IMS recruited workers
arrived on February 8, 1999, March 8, 1999, May 14, 1999, and June 12,
1999. TC12 recruited workers arrived in groups arriving on July 15,
1999, July 19, 1999, July 22, 1999, July 26, 1999, August 3, 1999,
August 10, 1999, August 24, 1999, October 1, 1999, January 1, 2000,
May 18, 2000, and May 25, 2000. The independently recruited
Vietnamese workers arrived on December 20, 1999.
Employment Contracts
Both the Chinese workers and Vietnamese workers entered into
employment contracts with their prospective employers. Upon their
67
arrival in American Samoa, each of the Chinese workers executed
contracts with Daewoosa Samoa, which provided eight hour workdays
and $390.0017 in monthly basic wages. The contracts also provided
Daewoosa Samoa would supply room and board, for which the workers
were required to pay a monthly fee of between $100.00 to $150.00.
The Vietnamese workers initially signed individual contracts to work at
Daewoosa Samoa with either their respective recruiting agency in
Vietnam, or Daewoosa USA. Then, when the workers arrived at the
Daewoosa Samoa factory, Daewoosa Samoa attempted to have each
Vietnamese worker sign an altered contract. Each IMS recruitee signed a
contract with IMS (“IMS-worker contracts”), and each TC12 recruitee
executed an employment contract with TC12 (“TC12-worker contracts”).
Each independent worker also entered into individual contracts to work
at Daewoosa Samoa as evidenced by an employment contract between
one of the independent workers, Ha Thi Huong, and Daewoosa USA
(“independent worker-Daewoosa USA contracts”). Another set of
contracts that outlined the terms of the TC12 recruited Vietnamese
workers’ employment, was executed by TC12, and Hee, on behalf of
Daewoosa USA (“TC12-Daewoosa USA contracts”).
Two TC12-Daewoosa USA contracts were entered. The first contract,
dated June 6, 1999, concerns the recruitment of 150 “machinists.” The
other, dated July 15, 1999, involves the employment of 100 “machinists.”
Although Hee’s stamped signature appears on the TC12-Daewoosa USA
contracts, and Hee occupied the table at which the formal execution of
the contracts took place, Hee incredibly repudiates the use of her
signature stamp, or in any way consenting to the agreements. In addition,
Hee incredibly disavows any relationship between Daewoosa USA and
Daewoosa Samoa. The close affiliation of both corporations was clearly
established at trial.
Daewoosa USA directed substantial sums of money, including one
payment of at least $20,000, in investments and loans to Daewoosa
Samoa. Furthermore, Daewoosa USA acted as the conduit for the
Vietnamese workers’ employment, including transferring the workers’
initial fees received from IMS and TC12 to Daewoosa Samoa. Also,
several documents, including the TC12-Daewoosa USA, the independent
worker-Daewoosa USA contracts, and Hee’s business card, list
Daewoosa USA with Daewoosa Samoa’s American Samoa address,
telephone number, and fax number.
17
This amount and all amounts stated below are expressed in U.S. money
terms.
68
The terms of the IMS-worker, TC12-worker, independent workerDaewoosa USA, and TC12-Daewoosa USA employment contracts state
that the employer will provide the workers’ with free suitable housing
and food. The TC12-Daewoosa USA, and the independent workerDaewoosa USA contracts further allowed for continuous compensation
for the workers when work was interrupted for no fault of their own. The
IMS workers understood their contracts to include the continuous wage
provision.
The TC12-Daewoosa USA contracts further provided an “arbitration”
clause. However, rather than the customary interpretation of arbitration,
it was understood that the clear meaning of the term “arbitration,”
translated from a Vietnamese writing, was judicial resolution of any
contract dispute.
At some time after the Vietnamese workers arrived in American Samoa,
Daewoosa Samoa attempted to execute yet another contract with each of
the Vietnamese workers (“Daewoosa Samoa-worker contracts”).
According to Daewoosa Samoa and Lee, the Daewoosa Samoa-worker
contracts, written only in English, eliminated Daewoosa Samoa’s
responsibility to pay for the workers’ food and lodging, and to
compensate the Vietnamese workers when work was interrupted. Some
members of the earlier arriving IMS groups had the benefit of a
Vietnamese translation of the new contracts and refused to sign them.
However, without having any translation in their language, members of
the subsequently arriving Vietnamese groups executed the new contracts.
While the workweeks for the Vietnamese workers were similarly
expressed in their contracts as 40-hour workweeks, the monthly salaries
of some of the Vietnamese workers initially differed. The TC12-worker
contracts, and independent worker Daewoosa USA contracts guaranteed
each employee monthly wages of $408.00 per month, whereas the IMSworker contracts provided monthly wages at $390.00 per month.
Apparently, these two amounts were premised upon the parties’ mistaken
belief that the amounts complied with lawful U.S. minimum wage
applicable to American Samoa. In any event, when the IMS recruits
received their first paychecks their earnings reflected basic monthly
wages of $408.00 rather than $390.00.
The Chinese workers’ contracts and Vietnamese workers’ contracts were
similar in some respects. Overtime wages for both the Chinese workers
and Vietnamese workers were calculated at 150% of their regular wages
and then subjected to a varying deduction. The TC12-Daewoosa USA
contracts contain reference to a 50% deduction from the Vietnamese
workers’ overtime wages to cover items identified as board, lodging, and
security. In practice, however, overtime deductions were applied to the
69
foreign Daewoosa Samoa workers across the board. The amount of the
overtime deduction was inconsistent and wide-ranging from 40% to 60%
of the workers’ overtime pay, resulting in irregular and substantially
reduced overtime wages.
It was agreed that payroll deductions of 7.65% and 2% would be taken
from the workers wages for the mandatory payment of U.S. Social
Security contributions and American Samoa income taxes, respectively.
Although Daewoosa Samoa and Lee withheld these amounts from the
workers’ salaries, they failed to pay the withheld contributions to the
Social Security Administration, or the withheld taxes to ASG except for a
short period beginning in January and ending in May 2000.
Prior to employment, the Chinese workers and Vietnamese workers were
required to pay their employers substantial initial fees for various
purposes. The Chinese workers each paid Daewoosa Samoa and Lee an
initial fee of $7,683. Each of the Vietnamese workers recruited by IMS
paid IMS $3,000.00, and those recruited by TC12 paid TC12 $4,000.00,
portions of which IMS and TC12, in turn, transferred to Daewoosa
Samoa and Lee. Each of the independently recruited Vietnamese workers
paid Daewoosa Samoa and Lee, through an independent employment
recruiter, approximately $5,000. The monies paid by the workers were
said to cover government fees, airfare to American Samoa, a security
deposit, and ASG immigration and employment fees. The workers
borrowed money for this purpose. At least one Vietnamese worker sold
her home to make the requisite payment.
Out of the fees that TC12 collected from the Vietnamese workers, it
transferred approximately $450,000.00 to Daewoosa Samoa and Lee for
the workers’ deposit, immigration fees, and other miscellaneous fees.
Two hundred and fifty thousand dollars was specifically earmarked for
the workers’ immigration bonds. However, ASG allowed Daewoosa
Samoa and Lee to post a lump-sum immigration bond for all of the
workers in the total amount of $10,000.
Retention of Passports, and ID Cards
Upon their arrival in American Samoa, or soon thereafter, the Chinese
workers were required to relinquish their passports and airline tickets to
Lee. Similarly, the Vietnamese workers tendered their travel documents
and tickets to an IMS or TC12 representative, if they traveled with one,
or to Lee, if they did not. Lee allegedly took these documents for the
purpose of immigration processing. However, even after the workers’
immigration papers were completed and their identification cards were
issued, Lee continued to retain their travel documents. Up until the time
of trial, Lee had not returned at least three Vietnamese workers’
70
passports.
A curfew was enforced on all the Chinese workers and Vietnamese
workers. On weekdays, the workers were required to be in the
compound before 9:00 p.m. On weekends, the curfew was slightly
extended to 10:00 p.m. Apparently, the curfew was initiated upon the
advice of Daewoosa Samoa’s former counsel, who also happened to be
the head of the aumaga, or village police, of the nearby village of
Nu`uuli, to have workers return to the compound by these times,
corresponding with the nightly Nu’uuli village sa, or curfew. However,
at least some workers who violated the curfew were unexpectedly kicked,
slapped, or punched by Daewoosa Samoa’s security guards upon
returning to the compound.
The workers’ egress from and ingress to the compound was further
limited by a Daewoosa Samoa policy requiring each worker to leave their
ASG issued identification cards, formally named certificates of alien
registration receipt cards, at the compound’s main gate before leaving.
As a result, workers remained within the compound fearful of traversing
beyond its perimeters without their ID cards on their person, an
American Samoa immigration law requirement.
IMS and TC12 Supervision of the Vietnamese Workers
While IMS and TC12 remained distinctly responsible for their respective
recruits, during the summer or fall of 1999 these agencies jointly engaged
Chuyen, who had initially been hired by TC12, to supervise all the
Vietnamese workers. In reality, Chuyen served as more than a mere
supervisor of the employees.
In an October 23, 2000 letter, the Vietnam government’s Department of
Administration of Foreign Labour Force confirmed to Lee that Chuyen
served as both the IMS and TC12 representative in charge of managing
the workers sent by both IMS and TC12 to American Samoa. The letter
also delegated Chuyen the authority to discuss and settle the workers’
legal disputes with Daewoosa Samoa and Lee.
Chuyen did more than merely oversee the Vietnamese workers. He was
also given broad authority to discipline the workers, including sending
regular reports of the workers’ comportment with management policies
to IMS and TC12. His reports recommended adverse actions against the
workers, including employment suspension or termination. Chuyen’s
reports clearly kept IMS and TC12 appraised of all that transpired in
American Samoa regarding the Vietnamese workers, including the filing
of this lawsuit. At one point in April 2000, TC12 wrote directly to the
Vietnamese workers, instructing them to drop this lawsuit. IMS and
71
TC12 also threatened workers or their Vietnam based families with
penalties if their protests continued.
Chuyen also served as the communicator between the Vietnamese
workers and Lee. All of Lee’s instructions to the workers were translated
through Chuyen. In addition, Chuyen performed other managerial-type
duties for Daewoosa Samoa, such as distributing the Vietnamese
workers’ paychecks.
Living Conditions
The living quarters of the Chinese workers and Vietnamese workers
consisted of approximately eight rooms with an estimated holding
capacity of 36 people to each room. The typical room was furnished
with two-tiered bunk beds equipped to hold one person per tier. The
bunk beds were aligned close to each other in approximately two rows,
which rows were opposite each other. A narrow corridor space was
provided between the two rows of beds. At any given time, there were an
insufficient number of beds to the number of workers, requiring that two
workers share some beds.
Each room was equipped with a shared bathroom facility, consisting of
showers and toilets. There were approximately one to two showers, and
two to five toilets in each bathroom facility. The showers and toilets
were not maintained, and some remained permanently broken. Toilet
paper, and hot water were not provided.18
Workers testified that the meals prepared by Daewoosa Samoa and Lee
were at times barely edible. The food principally consisted of a starch
and a type of vegetable, usually cabbage soup. Fresh vegetables and
fruits were not provided. Meat and chicken, or similar food, were not
regularly provided, but given in only two to three meals a week.
Dr. Heather Margaret, who testified as an expert on behalf of the
Vietnamese workers, reviewed the nutritional value of the food served
the workers. Dr. Margaret holds an M.D. from the Medical College of
Pennsylvania, spent most of her medical career practicing family
medicine, or comprehensive health care, and is currently employed at the
LBJ Tropical Medical Center. After reviewing menus of Daewoosa
prepared foods, Dr. Margaret was unable to form an opinion as to the
18
In 1999, the Department of Labor’s Occupational Health and Safety
Administration cited Daewoosa Samoa for a number of safety and health
violations, including its failure to maintain the men’s bathroom facilities,
equip the toilets with toilet paper, and provide running hot water, in
accordance with federal regulations.
72
nutritional value of meals because the menus did not provide
corresponding portion sizes. However, she did opine that the meals
failed to meet U.S. Department of Agriculture intake requirements
regarding fresh vegetables and fruits because of the total lack of such
foods.
Payment of Wages
From the outset, the Chinese workers and Vietnamese workers were paid
irregularly, and at times were not paid at all.
To the dismay of the Chinese workers, Lee failed to pay them for several
months. Finally, sometime in May 1999, the Chinese workers retained
an attorney to assist in getting their back earnings paid. In retaliation,
Lee refused to allow the workers back to work. It is unclear what then
immediately transpired. However, within two months, seven workers
returned to work, and the remaining 11 were sent back to China. An
accountant computed the pay still owed to the Chinese workers, deriving
the hours worked from the workers’ personal diaries or records.
The Vietnamese workers suffered similar experience, all being paid
sporadically. However, confusing evidence was adduced at trial
regarding the hours that the workers worked, and the payments that they
actually received. While an accountant testified as to the Chinese
workers’ unpaid wages, compiled from the workers’ detailed records, the
Vietnamese workers did not present a similarly comprehensive
accounting of their unpaid wages. The Vietnamese workers’ videotaped
depositions were admitted into evidence. However, given the lack of any
personally kept documentary corroboration, we did not find this evidence
very reliable with respect to the number of hours that the workers
worked. Also, the videotaped recordings were at times indistinct so that
the witnesses’ testimonies could not be reliably discerned. Confusion
over the Vietnamese workers’ payroll was further exacerbated when
Daewoosa Samoa and Lee delayed producing the requested payroll
summaries.
While the late produced payroll summaries provided individualized
payroll information on the majority of the Vietnamese class members,
summaries for some IMS and TC12 recruited Vietnamese workers were
missing. Furthermore, while it appears that the Vietnamese workers’
agreed with Daewoosa Samoa’s figures as to the amount of wages
already paid the workers, the provided summaries conflicted significantly
with the Vietnamese workers’ closing argument presentation of the
number of regular and overtime hours that they worked. Apparently, the
Vietnamese workers’ computation of their regular hours was based on
their understanding that they were entitled to compensation for periods of
73
time when they did not work, basically entitling them to salary for the
length of their stay in American Samoa. The workers’ presentation of the
amount of overtime hours worked was less obvious. They presented
varying testimonies regarding these hours. Yet, in their closing argument,
they utilized the overtime hours recorded by Daewoosa Samoa and Lee
to formulate their overtime hours worked, seemingly disregarding their
testimonial evidence.
Clearly, there were several periods when the Vietnamese workers did not
work. Earlier arriving IMS groups went unpaid for many weeks. By
March 27, 1999, tension mounted amongst them, and a confrontation
ensued between an uncompromising Lee and a large group of the IMS
Vietnamese workers. For two days, March 27 and 28, 1999, the workers
refused to work until Lee paid them. In reprisal for striking, Lee refused
to feed them. By the third day, Lee provided food and asked them to
return to work. The workers refused, insisting that their wages be paid
first. When the workers persisted to strike, Lee unsuccessfully attempted
to confiscate their ID cards. Insistent that the workers return to work,
Lee had the representative workers arrested. They were incarcerated for
three days, and eventually returned to Vietnam. It appears that tensions
were finally appeased, however, and on April 26, 1999, the Vietnamese
workers received their first paychecks of $709.00 for the pay period
February 11 through March 27, 1999.
Soon after the Vietnamese workers’ March 1999 strike, in May of 1999,
the U.S. Department of Labor began investigating the workers’
allegations of mistreatment. In September 1999, the Secretary of Labor
and Lee reached a settlement, requiring that Daewoosa Samoa and Lee
compensate workers for sums of up to $2,274 as back wages due for the
period October 13, 1998 to May 13, 1999. However, after releasing the
employees’ back pay, Lee secretly forced them to return the money.
Three Daewoosa Samoa management representatives accompanied at
least 20 Vietnamese workers by bus to a local bank to cash their
settlement checks. The workers were threatened that they would not be
allowed to work if they failed to comply. Four out of the 20 Vietnamese
workers relented, and relinquished their cashed earnings back to
Daewoosa Samoa. These four were allowed back to work.
Lee continued to restrict the remaining 16 from returning to work until
they paid back their settlement proceeds. On December 18, 1999, nine
of the 16 workers sought legal advice. Three days later, Lee retaliated
and had the nine sent back to Vietnam. By December 21, 1999, all,
except one, of the remaining seven returned to work. The one remaining,
Nguyen Thi Nga, was not allowed to work until January 29, 2000.
During a brief span, from January through the end of May 2000,
Daewoosa Samoa entered into an agreement with New Star Trading Co.,
74
Ltd. and Jakor Trading Co., Ltd., both of Seoul, Korea to manage the
factory operations. During their management tenure, the joint
management team regularly paid each worker the agreed upon wage of
$408 per month.
Soon thereafter, working conditions at the factory rapidly deteriorated.
During the month of June 2000, the Vietnamese workers laid idle, as the
factory lay dormant because of a lack of materials. Workers were not
paid. Work resumed in July and into August 2000, but the Vietnamese
workers were still not paid. In September 2000, again there was no work
because of a lack of materials. The workers returned to work in October
and November 2000. However, the workers’ paychecks for these months
were for insignificant small amounts.
Throughout the time that the Chinese workers and Vietnamese workers
were employed at Daewoosa Samoa, Daewoosa Samoa and Lee deducted
various amounts from their salaries. Varying amounts were deducted
from the workers’ overtime pay. Also, the Chinese workers were
charged additional amounts for room and board. Room and board fees
were deducted from the Vietnamese workers’ wages as well,
notwithstanding the Vietnamese workers’ contract provision providing
that accommodations would be free.
On November 28, 2000, after the tragic melee at the factory that resulted
in physical injury to several of the Vietnamese workers, including one
employee’s loss of an eye, the workers refused to return to work. Weary
of endless months of fighting for their basic wages, and frightened of
Lee, many of the Vietnamese workers requested that they be returned to
Vietnam. Most of the workers departed American Samoa for Vietnam or
elsewhere during the period from January to March 2001. Many of the
workers returned to their homeland. However, a significant number went
to Hawaii and various parts of the continental U.S. under the new federal
relief program designed to protect victimized immigrants.
Unrelated Death of Two Vietnamese Workers
In August of 2000, Nguyen Thi Nga, and Dung Kim Thi Vu, two IMS
recruited Vietnamese workers, who arrived in American Samoa on
March 8, 1999, died of drowning during a swimming excursion. Prior to
her death, Nguyen Thi Nga remained employed with Daewoosa Samoa.
However, as captured in a video taped production of the workers’
experiences at the Daewoosa Samoa factory, Dung Kim Thi Vu
explained that she voluntarily left Daewoosa Samoa after 20 days of
work. She further explained that Daewoosa Samoa paid her $200.00 for
this period.
75
Daewoosa Samoa’s Corporate History
Daewoosa Samoa was incorporated in 1994, with its board of directors
comprised of Heung Soo Jo as president, Seung Kyu Moon as vicepresident and treasurer, and Mary Tulafono as secretary. Lee testified
that these three ended their relationship with Daewoosa Samoa at various
junctures in 1998 and 1999. Their positions remained vacant until June
2000 when Daewoosa Samoa’s articles of incorporation were amended
showing the selection of three new board members. Lee replaced Heung
Soo Jo as president, Um Sang Hee replaced Seung Kyu Moon as vicepresident and treasurer, and Ui Seuk Jung replaced Mary Tulafono as
secretary.
It appears that for the most part, Daewoosa Samoa failed to follow
corporate formalities. No organizational meeting was held, no bylaws
kept, nor board of directors meetings recorded. In fact, no evidence
exists that any board meetings actually took place.
The evidence on Daewoosa Samoas financial condition was equivocal at
best. According to Lee, he invested $5 million of his own money in the
Daewoosa Samoa corporation.19 Additionally, the company’s November
1999 balance sheet showed assets worth more than $8 million. Although
TC12 provided a portion of the Vietnamese workers initial fees, several
thousands of dollars, either directly or indirectly to Daewoosa Samoa
bank accounts in American Samoa, the company’s bank records
evidenced a pattern of negative funding reflecting the use or misuse of
funds from TC12 or other sources.
Discussion
I. Jurisdictional Issues
A. Class Action and Standing
[1-2] In our April 11, 2000 order, we allowed these consolidated cases to
proceed as a class action, and certified the class pursuant to T.C.R.C.P.
23(b)(3). The certification of the class under T.C.R.C.P. 23(b)(3) is
appropriate as the “questions of law and fact common to the members of
the class predominate over any questions affecting only individual
members, and . . . a class action is superior to other available methods for
19
Although Lee testified that he invested $5 million, no corporate stock
was issued to reflect this investment. In fact, the stock was not distributed
until June 2000 when a total of $10,000 one-dollar shares of common
stock were distributed amongst the corporate directors, namely Lee
acquired 6,000 shares, Ui Seuk Jung 2,000, and Hee 2,000.
76
the fair and efficient adjudication of the controversy.” The adjudication
of the Chinese workers and Vietnamese workers unpaid wages may
necessarily involve somewhat individualized questions as to damages
since each worker was employed for varying lengths of time. However,
the common questions in this case predominate. The myriad of civil
wrongs alleged against Daewoosa Samoa, Lee, TC12, and IMS stem
from similar employment at the Daewoosa Samoa facility. The Chinese
workers shared the same type of contract. For the most part, the
Vietnamese workers shared the same type of contract. All workers were
uniformly fed and housed at the Daewoosa Samoa compound, and were
required to abide by the same working and boarding conditions
implemented by Daewoosa Samoa and Lee. In addition, the differences
in the measure of damages are not inconsistent with the requirement that
in order to maintain a class suit, each plaintiff must recover damages at
the same rate. See Kainz v. Anheuser-Busch, Inc., 194 F.2d 737, 741 (7th
Cir. 1952).
Initially, while reserving our right to redefine the class, we described the
class as all non-Samoan garment workers who presently work and
formerly worked at Daewoosa Samoa. The class excluded, and still
excludes, all Daewoosa Samoa managers. We now further classify the
class into sub-classes, a sub-class of all Chinese workers, and a sub-class
of all Vietnamese workers.
The sub-class of Vietnamese workers is further diversified, in that some
were recruited by IMS, others were recruited by TC12, and six were
independently recruited by Daewoosa Samoa and Lee. Therefore, for
purposes of delineating the responsibility that Daewoosa Samoa, Lee,
IMS and TC12 had with respect to the Vietnamese workers that each
recruited, we classify the Vietnamese workers’ sub-class into three
groups, a sub-class of Vietnamese workers recruited by IMS, a sub-class
of Vietnamese workers recruited by TC12, and a sub-class of
independently recruited Vietnamese workers. Finally, for purposes of
determining class-wide damages for those IMS recruited Vietnamese
workers and those TC12 recruited Vietnamese workers for whom
Daewoosa Samoa did not provide individualized payroll information, we
further classify the IMS recruited Vietnamese workers’ sub-class, and the
TC12 recruited Vietnamese workers’ sub-class into groups,
corresponding with the date that each group arrived in American Samoa.
IMS group 1 consists of all those Vietnamese workers recruited by IMS
that arrived in American Samoa on February 8, 1999. IMS group 2
consists of all those Vietnamese workers recruited by IMS that arrived in
American Samoa on March 8, 1999. IMS group 3 consists of all those
Vietnamese workers recruited by IMS that arrived in American Samoa
on May 14, 1999. IMS group 4 consists of all those Vietnamese workers
77
recruited by IMS that arrived in American Samoa on June 12, 1999.
TC12 group 1 consists of all those Vietnamese workers recruited by
TC12 that arrived in American Samoa on July 15, 1999. TC12 group 2
consists of all those Vietnamese workers recruited by TC12 that arrived
in American Samoa on July 19, 1999. TC12 group 3 consists of all those
Vietnamese workers recruited by TC12 that arrived in American Samoa
on July 22, 1999. TC12 group 4 consists of all those Vietnamese
workers recruited by TC12 that arrived in American Samoa on July 26,
1999. TC12 group 5 consists of all those Vietnamese workers recruited
by TC12 that arrived in American Samoa on August 3, 1999. TC12
group 6 consists of all those Vietnamese workers recruited by TC12 that
arrived in American Samoa on August 10, 1999. TC12 group 7 consists
of all those Vietnamese workers recruited by TC12 that arrived in
American Samoa on August 24, 1999. TC12 group 8 consists of all
those Vietnamese workers recruited by TC12 that arrived in American
Samoa on October 1, 1999. TC12 group 9 consists of all those
Vietnamese workers recruited by TC12 that arrived in American Samoa
on January 1, 2000. TC12 group 10 consists of all those Vietnamese
workers recruited by TC12 that arrived in American Samoa on May 18,
2000. Finally, TC12 group 11 consists of all those Vietnamese workers
recruited by TC12 that arrived in American Samoa on May 25, 2000.
In compliance with our April 11, 2000 order, notice of these proceedings
was posted at conspicuous locales at the Daewoosa Samoa compound,
and the same was mailed to as many off-island workers and former
Daewoosa Samoa employees as possible. The notice adequately
explained the nature of these proceedings and the requirement that
uninterested members of the class must affirmatively opt-out by filing a
written exclusion form with the court. Counsel for the Vietnamese
workers provided a proper form. To date, the court has received no
exclusion request.
B. Jurisdiction over IMS
IMS is a named party defendant to this lawsuit. However, IMS did not
answer the amended complaint or otherwise appear at any stage of these
proceedings. On December 15, 2000, service of process of the amended
complaint, and accompanied summons was made upon Chuyen, the
supervising manager of the Vietnamese workers in American Samoa,
including those engaged by IMS. The question, therefore, is whether
service upon Chuyen sufficiently notified IMS of this pending lawsuit.
[3] Consistent with our constitutional notions of due process, service of
process is a notice-giving device. The primary function of the service of
process rules is to bring notice of the commencement of an action to a
defendant’s attention and to provide a ritual that marks the court’s
78
assertion of jurisdiction over the lawsuit. 4 CHARLES ALAN WRIGHT &
ARTHUR P. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1063 (2d ed.
1987) (discussing the function of F.R.C.P. 4, which is paralleled by
T.C.R.C.P. 4).
[4-6] Although IMS is a government related entity, it is unclear whether
IMS is also a corporate entity or unincorporated association, making
service appropriate under T.C.R.C.P. 4(d)(3). In 1976, Congress enacted
the Jurisdictional Immunities of Foreign States Act (“JIFSA”), 28
U.S.C.A. §§ 1602-1611,20 which contains provisions for the service of
process upon foreign governmental instrumentalities and agencies. The
JIFSA was enacted to provide access to courts of the United States, its
states and territories, for resolution of ordinary legal disputes involving a
foreign sovereign, their subdivisions, agents, and instrumentalities.
JIFSA § 1602. The JIFSA defines the term “United States” to “[include]
all territory and waters, continental or insular, subject to the jurisdiction
of the United States.” JIFSA § 1603 (c). Clearly, for the limited purpose
of applying the JIFSA in cases before it, this court is a court of the
United States, as that term is broadly defined in JIFSA § 1603 (c).
Whichever provision is applicable, both T.C.R.C.P. 4(d)(3) and the
JIFSA notice provisions contain similar language allowing service upon
an authorized agent of a foreign entity.
T.C.R.C.P. 4(d) (3) provides in pertinent part:
Service shall be made . . . [u]pon a domestic or foreign
corporation . . . or other unincorporated association which is
subject to suit under a common name, by delivering a copy of
the summons and of the complaint to a managing or general
agent, or other agent authorized by appointment or by the law
to receive service of process.
[7] Similarly, service in accordance with the JIFSA is made upon a
foreign state’s agency or instrumentality “if no special arrangement
exists, by delivery of a copy of the summons and complaint . . . to an
officer, a managing or general agent, or to any other agent authorized by
appointment or by law to receive service of process in the United States.”
JIFSA § 1608 (b) (2)
[8] Chuyen was the authorized representative for both IMS and TC12 in
American Samoa. He regularly reported to and communicated with IMS
20
All citations in this opinion and order to the JIFSA generally and to
specific JIFSA sections include reference to 28 U.S .C.A.
79
and TC12 regarding Daewoosa Samoa’s employment of the Vietnamese
workers. Moreover, he was specifically entrusted to deal with legal
matters that pertained to the Vietnamese workers’ employment, including
disputes such as is the subject matter of this lawsuit. Insofar as Chuyen
was a general agent for IMS and TC12, and more specifically authorized
to deal with legal matters concerning the subject matter of this litigation,
he was an “agent” authorized to receive process on behalf of IMS within
the meaning of T.C.R.C.P. 4(d)(3) or JIFSA § 1608(b)(2).
C. Subject Matter Jurisdiction over TC12 and IMS
The parties did not raise the question of our jurisdiction to adjudicate and
render judgment upon the foreign government-related entities IMS and
TC12. However, since a decision rendered without appropriate
jurisdiction would not be binding on the parties, and would literally be a
waste of judicial time, we address the question of our subject matter
jurisdiction over the foreign parties sua sponte.
[9] Under the JIFSA, a court has subject matter jurisdiction to adjudicate
suits against foreign government-related agencies so long as the activity
concerned is not covered by the JIFSA’s immunity provisions. See JIFSA
§ 1605. In short, the immunity provisions codify the policy that
immunity should be limited to a government’s public or sovereign acts
and specific internal agreements, and should not cover private or
commercial activities. 4A WRIGHT, supra at 39, § 1111 (2d ed. 1987).
[10-11] The particular JIFSA provision applicable to this case provides
that a foreign sovereign is not immune from a court’s jurisdiction in any
case “in which the action is based upon a commercial activity carried on
in the United States by the foreign state.” JIFSA § 1605(a)(2). This
exception requires a two-fold analysis: 1) the alleged conduct must be a
commercial activity, in which a private actor could take part; and 2) there
must be a nexus between the plaintiffs’ action and the commercial
activity. See Velidor v. L/P/G Benghazi, 653 F.2d 812, 820 (3d Cir.
1981) (requiring a nexus between the plaintiff’s grievance and the
sovereign’s commercial activity).
[12] The claims against IMS and TC12 originate from their role in
recruiting, exporting, and employing the Vietnamese workers in a forprofit garment manufacturing company in American Samoa, clearly
commercial activity in which a private actor could equally participate.
Furthermore, the alleged commercial activity of IMS and TC12 is the
premise of the Vietnamese workers’ lawsuit. The conduct of IMS and
TC12, if proven, is therefore not excepted by sovereign immunity within
the meaning of JIFSA § 1605 (a)(2), and both IMS and TC12 would be
subject to our jurisdiction.
80
D. Jurisdiction over FLSA Claims
Daewoosa Samoa, Lee, and TC12 dispute our jurisdiction to adjudicate
the action of the Chinese workers and Vietnamese workers under FLSA §
216(b), claiming that the individual workers’ complaint is precluded by
the Secretary of Labor’s complaint under the FLSA in this court, CA No.
2-00.
[13-14] Employees are provided by FLSA § 216(b) with a civil right of
action against any employer who violates FLSA §§ 206(a), 207(a), and
215(a)(3). Additionally, the Secretary of Labor is authorized to sue on
behalf of aggrieved employees for injunctive or equitable relief.
Bureerong v. Uvawas, 922 F. Supp. 1450, 1464 (C.D. Cal. 1996)
(citations omitted). Under this scheme, once the Secretary of Labor files
a complaint, FLSA § 216(b) provides that the Secretary’s suit shall take
precedence over an employee’s suit. Id.; see also Wirtz v. W.G. Lockhart
Const. Co., 230 F. Supp. 823 (N.D. Ohio 1964) (filing of Secretary’s suit
preempts rights of employees to FLSA relief); Equal Opportunity
Employment Comm. v. AT&T, 365 F. Supp. 1105 (E.D, Pa. 1973)
(finding Secretary has exclusive right to bring FLSA § 217 action for
equitable relief); Wirtz v. Robert E. Bob Adair, Inc., 224 F. Supp. 750
(W.D. Ark. 1963) (filing of the Secretary’s suit terminates the FLSA §
216(b) rights of employee); Jones v. American Window Cleaning Corp.,
210 F. Supp. 921 (E.D. Va. 1962) (dismissing employee’s suit as
precluded by Secretary’s complaint).
[15] The plain language of FLSA § 216(b) clearly limits the preclusive
effect of suits filed by the Secretary of Labor to suits he files under the
FLSA § 217, a provision that grants federal district courts jurisdiction to
restrain FLSA violations. FLSA § 216(b) reads in pertinent part: “The
right to bring an action by or on behalf of any employee . . . shall
terminate upon the filing of a complaint by the Secretary of Labor in an
action under section 217 of [the FLSA] . . . Id. (emphasis added).
[16] In enacting this part of § 216 (b), Congress may have intended to
prevent employees’ double recovery or protect courts and employers
from multiple suits concerning the same subject matter. See Floyd v.
Excel Corp., 51 F.Supp. 931, 933-934 (C.D.Ill. 1999).21 However, for
whatever reason, Congress clearly intended, as evidenced by the plain
language of the statute to limit the preclusive effect of an FLSA suit filed
21
The Floyd court distinguished § 216(b) on other grounds, but generally
discussed congressional history regarding § 216(b) including a cite to
Sen. Rep. No. 145, 87th Cong. 1st Sess., reprinted in 1961 U.S.C.A.N.
1620, 1659.
81
by the Secretary to those he files under § 217 or files in a federal district
court. If the desired effect of § 216(b) was to preclude all FLSA suits
filed by the Secretary, Congress would have surely included such
language rather than the limiting language it did employ in the current
version of § 216(b).22 Therefore, since the Secretary’s FLSA complaint
in CA 2-00 was not filed under § 217, nor within a federal district court,
it is within our jurisdiction to adjudicate the action of the Chinese
workers and Vietnamese workers under FLSA § 216(b).
E. IMS and TC12 as Employers under the FLSA
TC12 further argues that it is not subject to the provisions of the FLSA
because it is not an employer as defined by FLSA § 203(d). FLSA §
203(d) defines the term “employer” as including “any person acting
directly or indirectly in the interest of an employer in relation to an
employee . . . but does not include any labor organization (other than
when [acting] . . . as an employer) or anyone acting in the capacity of
officer or agent of such labor organization.”
[17] Consistent with congressional direction, the Supreme Court has
instructed courts to interpret the term “employ” in the FLSA expansively.
Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 326 (1992);
see also Hale v. State of Arizona, 993 F.2d 1387, 1393 (9th Cir. 1993).
The definition has “‘striking breadth [and] stretches the meaning of
“employer” to cover some parties who might not qualify as such under a
strict application of traditional agency law principles.” Nationwide at
326.
[18] Several factors have been judicially identified to guide the analysis,
such as “whether the alleged employer (1) had the power to hire and fire
the employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.” Bonette v. California
Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983); see
also Bureerong, 922 F.2d at 1467; Donovan v. Sureway Cleaners, 656
F.2d 1368, 1370 (9th Cir. 1981) (discussing whether the workers’ service
is an integral part of the alleged employer’s business). But see Vanskike
v. Peters, 974 F.2d 806, 808 (7th Cir. 1992) (declining to apply Bonette
factors in determination of prisoners’ employment status). While these
factors provide guidance for the “employer” determination, they are
22
Interestingly, after obtaining a preliminary injunction against
Daewoosa Samoa and Lee in CA No. 2-00 on January 10, 2000, the
Secretary of Labor failed to pursue the permanent injunctive relief
requested by his action. The case has since languished as an open file on
our docket.
82
neither exclusive nor conclusive. Bonette at 1470.
[19] We apply this common-law framework of practical employment
circumstances to determine the role IMS and TC12 had in the
employment of the Vietnamese workers. Most significantly, IMS and
TC12 had the power to hire, and wielded an overwhelming power to fire
the Vietnamese workers. IMS and TC12 were instrumental in screening,
and ultimately selecting the workers. They also had the power to fire the
workers, which authority was leveraged with the threat of imposing hefty
penalties against fired workers or their Vietnam-based family. The
workers and their Vietnam-based families were, in fact, threatened with
penalties when IMS and TC12 learned of the Vietnamese workers’
expressed discontentment with their Daewoosa Samoa employment.
IMS and TC12 utilized Chuyen, and other supervisors, to further control
the Vietnamese workers’ everyday work-place situation. Chuyen, who
acted as a sort of watchdog over the workers, ensured that the workers
continued working regardless of the distressful conditions they faced.
Furthermore, although IMS and TC12 did not pay the workers directly,
they were instrumental in determining the Vietnamese workers’ rate of
pay, method of payment, and hours of work.
Finally, it appears that IMS and TC12 maintained employment records,
specifically the contracts entered into between the parties. When all of
these employment factors are considered in light of the entire
employment situation at issue in this case, IMS and TC12 functioned as
employers within the meaning FLSA § 203(d).
F. FLSA Opt-In Requirement
[20] Although the Chinese workers and Vietnamese workers are not
precluded by the Secretary of Labor’s filing of CA No. 2-00 from
bringing this action under FLSA § 216(b), FLSA § 216(b) explicitly
requires that each member of the class of eligible workers affirmatively
consent to be a party to the FLSA action. T.C.R.C.P. 23(b)(3) requires
class members to affirmatively “opt-out” of a class action suit. In
contrast, FLSA § 216(b) requires employees similarly situated with the
named plaintiffs to provide the court with affirmative notice of their
intentions to be part of the lawsuit. See D’Anna v. M/A-COM, Inc., 903
F. Supp. 889, 892 (D. Md. 1995).
[21] A similarly situated employee may “opt in” by filing a written
consent with the court where the suit is pending. Id. FLSA § 216(b) does
not prescribe a particular format for an employee’s consent to suit, and
requires only that the consent must be in writing and filed in the court in
83
which the action is brought. See Kuhn v. Philadelphia Elec., Co., 475 F.
Supp. 324 (E.D. Pa. 1979) (notarization not required); see also Burgett v.
Cudahy Co., 361 F. Supp. 617, 622 (D.C. Kan. 1973) (requiring only
written consent). For the consent to be “in writing” the employee need
only sign the document. See Kulik v. Superior Pipe Specialities Co., 203
F. Supp. 938, 941 (N.D. Ill. 1962).
On January 17, 2001, approximately 168 purported members of the
Vietnamese workers’ class filed a signed document demonstrating their
consent to bring their FLSA claims. The writing demonstrates the
affirmative “opt-in” of those 168 workers. Furthermore, the Chinese
workers and Vietnamese workers specifically named as plaintiffs to the
suit clearly demonstrate their consent to the FLSA litigation. However,
because the FLSA requires an affirmative showing of consent to suit, the
failure of other class members to file written consents or be named as
plaintiffs in this suit necessarily precludes them from FLSA redress.
II. Liability for FLSA Claims
In enacting the FLSA, Congress intended to create a uniform
compensation system for all work or employment engaged in by
employees covered by the Act.23
[22] The FLSA provides minimum substantive rights to employees
subject to its mandates, which rights may not be waived by agreement.
Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981). In
Barrentine, the Supreme Court reiterated the requisite recognition that
the FLSA provides non-waivable baseline employment standards:
This Court’s decisions interpreting the FLSA have frequently
emphasized the non-waivable nature of an individual
employee’s right to a minimum wage and to overtime pay
under the Act. Thus, we have held that FLSA rights cannot be
abridged by contract or otherwise waived because this would
‘nullify the purposes’ of the statute and thwart the legislative
policies it was designed to effectuate.
450 U.S. at 740 (1981) (citations omitted).
The Chinese workers and the Vietnamese worker contend that their
respective employers amongst Daewoosa Samoa, Lee, IMS and TC12
23
The Chinese workers and Vietnamese workers, who worked in the
manufacture of clothing for export, are unquestionably covered by the
FLSA, which sets out minimum wage standards for all employees
“engaged in commerce.” See 29 U.S.C.A. § 206.
84
violated the non-waivable baseline employment standards set out in
FLSA §§ 206(a) and 207(a), and discriminated against them for raising
these issues in violation of FLSA § 215(a)(3). We treat each alleged
violation in turn.
A. Minimum Wage Violations
[23] FLSA § 206(a) prescribes that no employee employed in American
Samoa may be paid less than American Samoa’s established minimum
wage. American Samoa’s effective minimum wage for the garment
manufacturing industry, pursuant to the FLSA, was $2.55 an hour
between October 27, 1998 through September 19, 2000, and $2.60 an
hour from September 20, 2000. See 29 C.F.R. Part 697(o)(1).24
[24] The Chinese workers earned $390.00 per month, and the
Vietnamese workers earned $408.00 per month. In order to calculate the
hourly rate paid, we multiply the monthly salary by 12 to obtain the total
pay for the year. The sum is then divided by 52 to obtain the pay per
week, which is then divided by 40 hours to determine the hourly rate
worked each week. See 29 C.F.R. § 778.113(b); McCloskey & Co. v.
Dickinson, 56 A.2d 442 (D.C. App. 1947) (using this method to
determine the hourly rate from monthly salary). Under this formula, the
contracts in this case allow for an hourly rate clearly below the minimum
required for garment factory employees. At $390.00 a month, the hourly
rate is $2.25; at $408.00 a month the hourly rate is $2.35.
B. Overtime Wage Violations
Under FLSA § 207(a)(1):
[N]o employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production of
goods for commerce . . . for a workweek longer than forty
hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate
not less than one-half times the regular rate at which he is
employed.
Similar provisions are set forth 29 C.F.R. § 778.107, stating:
Overtime must be compensated at a rate not less than one and
24
29 CFR § 697(o)(1) reads:
The minimum wages for [the garment. manufacturing] . . .
industry is $2.55 an hour effective October 27, 1998, and
$2.60 an hour effective September 20, 2000.
85
one-half times the regular rate at which the employee is
actually employed. The regular rate of pay at which the
employee is employed may in no event be less than the
statutory minimum.
[25-26] While employers are free to establish the regular rate of pay,
under the overtime provision of FLSA § 207(a)(1), minimum hourly rates
established by FLSA § 206 must be respected. Walling v. YounermanReynolds Hardwood Co., 325 U.S. 419 (1945). Thus, in garment
manufacturing, overtime must be paid at the rate of one and one-half
times the employee’s regular rate of pay, which is, at the very least,
American Samoa’s effective minimum wage for the garment
manufacturing industry at the time—$ 2.55 an hour between October 27,
1998 through September 19, 2000, and $2.60 an hour from September
20, 2000. Furthermore, any agreed-upon deduction from overtime pay
that effectively diminishes such pay below the statutory requirement is
invalid. See F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493 (6th
Cir. 1952) (agreeing to pay for only part of hours worked violates the
FLSA and is invalid); see also Donovan v. Brown Equipment and
Service Tools, Inc., 666 F.2d 148 (5th Cir. 1982); Johnson v. Dierks
Lumber & Coal Co., 130 F.2d 115 (5th Cir. 1962); Walling v. Lippold,
72 F. Supp. 339 (D. Neb. 1947); Chepard v. May, 71 F. Supp. 389
(S.D.N.Y. 1947).
Because the regular rate of pay of the Chinese workers and Vietnamese
workers was the statutorily required minimum wage, they were entitled
an overtime rate of one and one-half times the effective minimum wage
in accordance with FLSA § 207(a)(1). Therefore, the workers were
entitled to an overtime pay rate of $3.83 per hour between October 28,
1998 through September 20, 2000, and $3.90 per hour from September
20, 2000 onwards. Since the employers deducted varying amounts from
the workers’ overtime wages, the evidence was inconclusive as to the
actual overtime rate of pay the employers utilized to calculate overtime
wages. Nonetheless, even if overtime wages were calculated at one and
one-half times the effective minimum wage, the employers’ deductions
illegally reduced the workers’ overtime wages far below the statutory
limit in violation of FLSA § 207(a)(1). The workers are therefore
entitled to the difference in the lawful overtime rate and the overtime
compensation actually received.
C. Discrimination for Raising Wage Issues
[27] Under FLSA § 215(a)(3), it is unlawful for an employer “to
discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to
be instituted any proceeding under or related to this chapter, or has
86
testified or is about to testify in any such proceeding.”
Daewoosa Samoa and Lee, with respect to the Chinese workers and
Vietnamese workers, and IMS and TC12, with respect to their recruited
Vietnamese workers only, clearly violated FLSA § 215(a)(3). They
continuously threatened to discharge and deport workers because they
were plaintiffs in this lawsuit. Several workers were, in fact, terminated
from employment and sent back to their homelands because they actively
participated in pursuing their rights under the FLSA.
D. FLSA Damages
[28] FLSA § 216(b) explicitly affords aggrieved employees
comprehensive redress, including but not limited to back-wages,
attorneys’ fees, costs, and liquidated damages.
[29-30] Liquidated damages of an amount equal to unpaid minimum and
overtime wages are recoverable against an employer, unless there is
evidence that an employer acted in good faith and attempted to comply
with FLSA requirements. An employer’s knowledge that an employee
might be covered by the FLSA, and failure to further inquire into the
status of that employee is sufficient to establish the employer’s lack of
good faith. See 29 C.F.R. § 790.15; see also Bankston v. Illinois, 60
F.3d 1249, 1255 (7th Cir. 1995).
Daewoosa Samoa and Lee, with respect to the Chinese workers and
Vietnamese workers, and IMS and TC12, with respect to the majority of
the Vietnamese workers, knew or had reason to know that the workers
were being paid in violation of the law, but failed to make a good faith
effort to comply with the law. Even if Daewoosa Samoa, Lee, IMS and
TC12 erroneously believed that the Vietnamese workers’ contractual
monthly wage was in compliance with the FLSA minimum wage
requirements, having allegedly premised the contractual monthly wage of
$408.00 by multiplying the minimum wage of $2.55 by a four week
month working 40 hours per week, there is no similar explanation for the
calculation of or deductions from the workers’ overtime wage.
Furthermore, Daewoosa Samoa, Lee, IMS, and TC12 were at least on
constructive notice that the validity of the workers’ regular and overtime
wages was questionable and potentially in non-compliance with wage law
when the Department of Labor began investigating Daewoosa Samoa’s
operations as early as May 1999. At that time, Daewoosa Samoa, Lee,
IMS, and TC12 actually knew of the conditions at the factory, and their
failure to pay the workers’ lawful wages. However, rather than inquire
about or rectify the situation, they threatened the workers to continue
working under the same conditions or suffer certain consequences. More
specifically, Daewoosa Samoa and Lee defiantly forced workers to return
87
Department of Labor assisted settlement monies, or suffer termination or
deportation.
III. Specific Liability Issues
A. The General Context of the Workers’ Claims
The Chinese workers assert that Daewoosa Samoa and Lee breached the
terms of their bargained-for employment contracts by charging illegal
initial fees, and failing to pay lawful standard and overtime wages. The
Vietnamese workers’ claims are twofold. First, the IMS-recruited
Vietnamese workers, and the TC12-recruited workers claim that
Daewoosa Samoa, Lee, IMS, and TC12 jointly employed them under
terms of their employment contracts. Secondly, all the Vietnamese
workers allege that their respective employers charged them illegal initial
fees, failed to continuously pay lawful basic wages when work was
interrupted, improperly charged them for room and board, and failed to
pay them their legal wages.
B. Choice of Law
[31] As a threshold matter, since the contracts were negotiated,
contracted, and performed in various jurisdictions, we must determine
whether the law of Vietnam, Korea, China, or American Samoa governs
the interpretation of the various contracts at issue. Absent the parties’
agreement on the governing law, or an American Samoa statutory or
common-law choice of law standard, we turn to common law generally to
provide guidance in determining the choice of law applicable to the
contracts at issue.
The RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 196 (1971)
codifies U.S. common law and provides a standard to determine the
governing law for interpretation of contracts for the rendition of services.
It states in pertinent part:
§ 196 Contract for the Rendition of Services
The validity of a contract for the rendition of services and the
rights created thereby are determined, in the absence of an
effective choice of law by the parties, by the local law of the
state where the contract requires that the services, or a major
portion of the services, be rendered, unless, with respect to the
particular issue, some other state has a more significant
relationship under the principles stated in § 6 to the transaction
and the parties, in which event the local law of the other state
88
will be applied.25
[32] As stated, the general rule is that the law of the place of performance
governs the interpretation of a contract for services, and will only be
trumped if another state has a more significant relationship with the
transaction or parties as set forth in § 6. Id.
In this case, the parties explicitly agreed that performance of the threeyear employment contracts was to take place entirely at the Daewoosa
Samoa factory principally located in American Samoa. In fact, the
Chinese workers and Vietnamese workers rendered their services under
the employment contracts at issue entirely in American Samoa. Although
the parties hail from China, Vietnam, and Korea, and some of the
contracts were initially negotiated in these various countries, such
contacts do not override the contacts that American Samoa had with the
transaction and parties, as the place of contract performance.
Accordingly, since services were rendered in American Samoa, and no
other jurisdiction has more significant contacts with the transaction and
the parties in the case, we find that American Samoa law applies to
interpret the various contracts at issue in this case.
C. Lee’s Individual Liability
[33] Although a corporate officer or owner is normally not subject to
personal liability for the acts of the corporation, this corporate shroud of
protection from liability may be pierced, and the corporate officer or
owner held personally liable for the conduct of the corporation if the
corporation is nothing more than his alter ego.
25
The relevant portions of the authors’ comment provides:
The rule [of this Section] applies if the major portion of the
services called for by the contract is to be rendered in a single
state and it is possible to identify this state at the time the
contract is made. It is necessary that the contract should state
where the major portion of the services is to be rendered or
that this place can be inferred either from the contract’s terms
or from the nature of the services involved or from other
circumstances.
. . . .
The importance in the choice-of-law process of the place
where the service, or a major portion of the services, are to be
rendered depends somewhat upon the nature of the services
involved. This place enjoys greatest significance when the
work is to be more or less stationary and is to extend over a
considerable period of time. This is true of a contract for
employment on the ordinary labor force of a particular factory.
89
[34-35] A party is an alter ego of a corporation when “there is such a
unity of interest and ownership that the individuality, or separateness, of
said person and corporation has ceased” and “the facts are such that an
adherence to the fiction of the separate existence of the corporation
would, under the particular circumstances, sanction a fraud or promote
injustice.” Amerika Samoa Bank v. Adams, 22 A.S.R.2d 38 (Trial Div.
1992). The applied effect of the alter ego doctrine treats the corporation
and the dominating person as one person, so that any act committed by
one is attributed to both, and if either is bound, by contract, judgment, or
otherwise, both are equally bound. See also Dudley v. Smith, 504 F.2d
979 (5th Cir. 1974); Shamrock Oil v. Gas Co. v. Ethridge, 159 F. Supp.
693 (D. Colo. 1958).
[36] Lee clearly acted as Daewoosa Samoa’s alter ego. Lee was the sole
real shareholder and owner of Daewoosa Samoa during the majority of
the time in question. He did not adhere to corporate formalities, except
for one late and hurried attempt to distribute shares for substantially
limited amounts. He clearly siphoned off corporate funds for his own
use, leaving the corporate bank accounts too barren to meet employee
payroll and other corporate expenses. In sum, adherence to the fiction of
a separate existence between Lee and Daewoosa Samoa would promote
injustice under the particular circumstances of this case.
D. IMS and TC12 as Joint Employers of the Vietnamese Workers
The IMS and TC12-recruited Vietnamese workers contend that IMS and
TC12 were their joint employers with Daewoosa Samoa and Lee under
the terms of the IMS-worker contracts, TC12-worker contracts, and
TC12-Daewoosa contracts, and therefore, are jointly responsible with
Daewoosa Samoa and Lee to pay for their contractually agreed upon
wages. TC12 opposes the workers’ claim, arguing that it functioned
merely as a go-between or broker responsible for securing the
Vietnamese workers’ employment with Daewoosa Samoa and Lee, not an
employer.
[37-38] To determine whether an employment relationship exists
between two parties we must look beyond the terms of the contract. See
Todd v. Benal Concrete Construction, Co., 710 F.2d 581, 584 (9th Cir.
1983) (“[c]ontractual language alone cannot transform a contractor/
independent contractor relationship into an employer/employee
relationship”); see also Adele’s Housekeeping v. Department of
Employment Security, 757 P.2d 480 (Utah 1988), citing Singer Sewing
Mach. Co. v. Industrial Comm’n, 134 P.2d 479 (Utah 1943) (looking
beyond the contract to determine whether an employer/employee
relationship exists). Rather, the traditional common-law rule focuses the
90
inquiry on the alleged employer’s degree of control over the alleged
employee. See generally Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985)
(Title VII case); Illinois Conference of Teamsters and Employers
Welfare Fund v. Mrowicki, 44 F.3d 451 (7th Cir. 1994) (stating common
law test as premised on alleged employer’s right to control).
IMS and TC12 acted as more than mere brokers responsible for securing
the employment of their respective groups of Vietnamese workers, and
functioned as employers of these workers for purposes of the workers’
employment at the Daewoosa Samoa garment manufacturing factory. We
reiterate that IMS and TC12 exerted significant control over their
workers’ employment situation, including but not limited to, the hiring
and firing of the workers. Furthermore, IMS and TC12 controlled the
everyday work-place activities of the workers by employing Chuyen, and
other supervisors to oversee the workers’ employment, supervision that
was all encompassing.
E. Breach for Charging the Vietnamese Workers Room and Board;
Discontinuing Wage Payments
Unlike the employment of the Chinese workers unquestionably detailed
in a single set of contracts executed upon the workers arrival in American
Samoa, the Vietnamese workers’ employment is enumerated in several
separate sets of contracts. According to the IMS-worker contracts
executed by some Vietnamese workers and IMS, the TC12-worker
contracts executed by some Vietnamese workers and TC12, the
independent worker-Daewoosa USA contracts executed by other
Vietnamese workers, and the TC12-Daewoosa USA contracts signed by
TC12 and Daewoosa USA, the Vietnamese workers were to be provided
with free suitable room and board. Additionally, the workers understood
that these contracts provided that they would be paid continuous basic
wages regardless of the lack of work. In contrast, the Daewoosa Samoaworker contracts, which Lee attempted to have all the Vietnamese
workers execute, excluded these terms.
Daewoosa Samoa, Lee, and TC12 do not dispute the language of the
contracts, nor their interpretation by the Vietnamese workers. Instead,
Daewoosa Samoa, and Lee contend that they did not assent to
employment terms providing free room and board, and continuous pay,
nor authorized IMS, TC12, or Daewoosa USA to agree to such terms.
Daewoosa Samoa and Lee urge that the Daewoosa Samoa-worker
contracts, apparently excluding the free room and board and continuous
salary provisions, evidence the bargained-for agreement between the
parties.
[39] The well-established rule derived from the basic structure of agency
91
law provides that a principal will be bound and liable for the acts of his
agent performed with actual or apparent authority from the principal, and
within the scope of the agent’s employment. See Weeks v. United States,
245 U.S. 618 (1918); Hoffman v. John Hancock Mut. Life Ins. Co., 92
U.S. 161 (1875) (an agent’s act performed within the sphere of the
authority conferred is as binding upon the principal as if it had been done
by the principal himself).
Daewoosa Samoa and Lee clearly authorized IMS, TC12, and Daewoosa
USA to recruit labor for its garment manufacturing factory operations.
Therefore, the contracts entered into by these entities for that purpose are
binding upon Daewoosa Samoa as if Daewoosa Samoa entered into them
on its own account. Even if the contracts were unauthorized, Daewoosa
Samoa and Lee ratified the contracts by subsequently accepting the
Vietnamese workers for employment, thus manifesting their assent to the
agreements. See generally RESTATEMENT (SECOND) OF AGENCY § 83
(1958).
Any argument that the Daewoosa Samoa-worker contracts validly
amended the IMS-worker, TC12-worker, independent worker Daewoosa
USA, and TC12-Daewoosa USA contracts is also flawed, where there
was no consideration for any such amendment. In fact, the Daewoosa
Samoa-worker contracts appear glaringly unconscionable where
Daewoosa Samoa induced non-English speaking workers to sign
amended English written contracts, without the benefit of a translation,
and offered the workers no consideration for excluding the previously
promised benefits. See Development Bank of American Samoa v. Ilalio,
5 A.S.R.2d 110 (Trial Div. 1987) (voiding contract as unconscionable for
offering grossly inadequate consideration).
We therefore hold that, rather than the Daewoosa-worker contracts, the
IMS-worker contracts, TC12-worker contracts, independent workerDaewoosa USA, and TC12-Daewoosa USA contracts reflect the
bargained-for agreement between the Vietnamese workers and their
respective employers. As evidenced from the plain language of the
contracts, and the testimony of the workers, the agreements provide that
these Vietnamese workers should receive free room and board, and
continuous wages regardless of the lack of work. Daewoosa Samoa, Lee,
IMS, and TC12 breached both of these terms by charging the Vietnamese
workers various fees for room and board, and failing to pay them when
work was interrupted.
F. Breach of Contract for Back Wages
The Chinese and Vietnamese workers allege, as an additional basis to the
FLSA for the payment of unpaid wages, that Daewoosa Samoa, Lee, with
92
respect to the Chinese and Vietnamese workers, and they together with
IMS, and TC12, with respect to the IMS and TC12-recruited Vietnamese
workers, breached the terms of their respective contracts regarding their
salary and overtime payments.
[40] The contract terms covering the wage and overtime payments to the
Chinese workers and Vietnamese workers illegally fall below the floor
established by FLSA §§ 206 and 207(a)(1). However, rather than
entirely invalidate the contracts at issue in this case for containing terms
contrary to the FLSA, we are empowered to modify the illegal contract
terms to make them conform to the law. See American Samoa Gov’t v.
Samoa Aviation, Inc. (Hem), 13 A.S.R.2d 65, 67 (Trial Div. 1989); see
also Ilalio, 5 A.S.R.2d at 110 (stating that court has option to refuse to
enforce the contract, enforce the remainder of the contract without the
unconscionable provisions, or so limit the application of the
unconscionable provisions as to avoid any unconscionable result); see
generally RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981).
Therefore, to validate these contracts, we replace the minimum and
overtime wage provisions of the contracts for the Chinese workers and
Vietnamese workers with the baseline wage and overtime requirements
of FLSA §§ 206 and 207(a) (1). See generally Northwestern Yeast Co.
v. Broutin, 133 F.2d 628 (6th Cir. 1943); see also Fletcher v. Grinnell
Bros., 64 F. Supp. 778 (E.D. Mich. 1946); Adair v. Ferst, 45 F. Supp.
824 (N.D. Ga. 1942) (stating that employee covered by FLSA is a
creditor of his employer for any unpaid portion of the minimum wage
regardless of any agreement between the parties).
As stated in the FLSA discussion, pursuant to FLSA § 206, the
employers were required to pay the Chinese workers and Vietnamese
workers engaged in garment manufacturing in American Samoa an
hourly minimum wage of $2.55 from October 27, 1998 through
September 19, 2000, and $2.60 per hour from September 20, 2000.
Also, FLSA § 207(a)(1) required that each garment worker be paid
overtime wages at a rate of $3.83 per hour from October 27, 1998
through September 19, 2000, and $3.90 per hour from September 20,
2000. However, contrary to these FLSA provisions, and in conspicuous
breach of the employment agreements, the Chinese workers and
Vietnamese workers received hourly wages of only $2.25, and $2.35,
respectively. Additionally, the contracts of the Chinese workers and
Vietnamese workers allowed for deductions from overtime wages,
bringing these wages below that prescribed by FLSA § 207(a)(1).
Accordingly, in order to compensate the Chinese workers and
Vietnamese workers for the breach of their contracts, the employers must
reimburse them for the difference in the hourly and overtime wages
earned and those actually paid.
93
G. Breach of Contract for Charging Illegal Initial Fees
The Chinese workers and Vietnamese workers further contend that the
employers breached their employment contracts by charging the workers
illegal initial fees. As a condition of each worker’s employment at the
Daewoosa Samoa factory, each worker was required to pay exorbitant
initial fees, ranging from $3,000.00 to $7,683.00, allegedly to pay a
security deposit, the workers’ airfare, and various government fees or
taxes.
[41-42] We reiterate that we are empowered to modify an illegal contract
term without invalidating the entire contract. See Samoa Aviation, Inc.,
13 A.S.R.2d at 67; Ilalio, 5 A.S.R.2d at 110. The contract requirement
that the Chinese workers and Vietnamese workers pay sums of money up
front was clearly an illegal ploy to defraud the workers and their families
of their money, and obligate the workers to the term of their employment
contracts or suffer loss of the fees, and deposit. Though already
essentially destitute, the workers and their families were further
impoverished in their attempts to secure the requisite funds, doing it
nevertheless for the promise of employment in American Samoa.
However, the employers never provided the Chinese workers and
Vietnamese workers their promised-for employment. Instead, the workers
lived in substandard conditions, went underpaid for months, and on one
occasion at least some workers were unfed for at least two days.
Accordingly, the contract clause requiring that the workers pay varying
initial fees is invalid and must be struck from the contracts, and the
employers are responsible to reimburse their respective workers these
monies.
IV. Computation of Back Wages
[43] The availability of individualized payroll evidence for all of the
Chinese workers, and the majority of the Vietnamese workers make
individual back pay and liquidated damages awards possible as to these
workers. However, because individual awards for those Vietnamese
workers for whom payroll summaries were not provided are
unascertainable, class-wide awards are provided for such workers. An
individualized remedy should be utilized when possible because it will
compensate the claimants without unfairly penalizing the employer.
Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976)
(awarding individualized and class-wide Title VII back pay awards).
A. Chinese Workers’ Individual Back Wages
Rather than utilizing the monthly wage rate of $390.00 per month, the
Chinese workers’ accountant determined the amount of regular and
94
overtime wages owed, less deductions for FICA contributions, ASG
income taxes, and less any payments already received.26 We accept the
accountant’s calculation of the Chinese workers’ back-wages. Although
Daewoosa Samoa submitted payroll summaries regarding the Chinese
workers back wages, we find the calculations of the Chinese workers’
accountant more credible. The Chinese workers’ accountant premised
his report upon the diaries and records of the individual workers, and
Daewoosa Samoa admitted to owing equivalent amounts at least prior to
June 24, 1999.27
B. Vietnamese Workers’ Individual Back Wages
At trial, Daewoosa Samoa and Lee submitted payroll summaries
regarding the amounts owed the Vietnamese workers. These figures
contrasted significantly with the Vietnamese workers’ analysis in c1osing
arguments. We are reluctant to wholeheartedly accept either side’s
summaries of the back wages owed the Vietnamese workers for several
reasons.
The Vietnamese workers’ summary was not presented as evidence at
trial, thereby depriving Daewoosa Samoa, Lee, and TC12 the benefit of
cross-examination. For example, as TC12 accurately points out, some of
the Vietnamese workers’ mathematical calculations as to the number of
months within a given range of months are in error, a point that would
have been best brought to light and fully examined during the trial.
On the other hand, while the employers’ records appear to be the best
evidence available regarding certain amounts, Daewoosa’s records are
otherwise inaccurate with regards to the regular hours worked by the
Vietnamese workers. They deducted amounts for room and board in
violation of these workers’ agreements. Furthermore, they failed to
calculate the time that the Vietnamese workers lay idle.
As discussed earlier, the Vietnamese workers’ are contractually entitled
to be compensated for their idle time if there is no work for no fault of
their own. The weight of the evidence indicates that the Vietnamese
workers would have worked the entire time that they were in American
Samoa but for the unavailability of work caused by the employers. The
26
Deductions were not taken out for the Chinese workers’ room and
board given our finding that the Daewoosa Samoa provided room and
board was substandard. See Substandard Room and Board discussion,
supra.
27
In a June 24, 1999 letter to the Chinese workers’ counsel, Daewoosa
Samoa agreed to owing an amount of wages equivalent to the
accountant’s calculated amount.
95
times that the Vietnamese workers lay idle were caused by either factory
shutdowns or the employers’ failure to pay them. The Vietnamese
workers are therefore entitled to be compensated their regular wage for
this idle time.
Accordingly, we calculated the total amount of basic wages the
Vietnamese workers earned based upon the total amount of regular
working days that each such worker spent in American Samoa.28 We
multiplied this time by the relevant legal minimum rate to arrive at the
gross amount of regular wages earned.
Given the substantial inconsistencies between the overtime records and
the Vietnamese workers’ testimony, and the varying deductions from
overtime earnings taken by their employers, owed overtime wages are
more difficult to determine. Nonetheless, utilizing payroll records
submitted by Daewoosa Samoa and Lee, we were able to determine the
amount of overtime wages owed the Vietnamese workers. Without better
contrary evidence, we find that these hours are the best evidence of the
overtime hours worked. Using these provided numbers, we derived the
total amount of overtime wages earned by multiplying the total amount of
overtime hours presented by Daewoosa Samoa and Lee by the applicable
overtime rate.
We then determined the total amount of owed back wages by deducting
the applicable FICA contributions and ASG income taxes, and the
amount the Vietnamese workers received from the gross amount earned.
C. Class-wide Back Pay and Liquidated Damages
28
Except for the working days of the two deceased IMS Vietnamese
workers, the Vietnamese workers’ regular working days were calculated
from the first full workweek day after each worker arrived in American
Samoa to January 12, 2001. By January 12, 2001, Daewoosa Samoa was
non-operational, most of the workers had requested to return to Vietnam
or to leave for elsewhere, and a court appointed receiver had assumed
full responsibility of the Daewoosa Samoa operation. As for Nguyen Thi
Nga, and Dung Kim Thi Vu, their regular working days necessarily
ended on the approximate date of their deaths or the last date of their
employment, whichever occurred sooner. Accordingly, we calculated
Nguyen Thi Nga’s owed back wages to the approximate date of her
death, or August 31, 2000. However, because Dung Kim Thi Vu worked
only 20 days, and was compensated for these days, she is not entitled to
any owed back wages. Our finding does not, however, preclude Dung
Kim Thi Vu from entitlement to other class-wide damages in accordance
with this decision.
96
[44] Individual back pay awards were unidentifiable for members of the
IMS-recruited and TC12-recruited Vietnamese workers’ classes for
whom Daewoosa Samoa and Lee failed to submit payroll summaries.
Therefore, we must utilize a class-wide method to ascertain these
workers’ damages. Although a class-wide method of computing back
wages is basically an estimation that oftentimes results in unequal
awards, creating a windfall for some, and under-compensating others,
“[a]ny method is simply a process of conjectures.” Stewart, 542 F.2d at
453, citing Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 261
(5th Cir. 1974). An estimate of the measure of damages is better than no
damages at all. Id.
The amount of total regular wages for each unidentified IMS-recruited
Vietnamese worker and each unidentified TC12-recruited Vietnamese
worker is ascertainable based on the amount of time that they spent in
American Samoa. Furthermore, since it appears that these workers
worked and were compensated at approximately the same rate as those
identified Vietnamese workers, we derived an estimation of overtime
wages and payments received for each unidentified Vietnamese worker
by calculating the average overtime earned and payments received of the
named and identifiable members of each corresponding IMS-recruited
Vietnamese worker’s group or TC12-recruited Vietnamese worker’s
group. Using the same formula utilized to derive the named and
identifiable workers’ individualized awards, we determined each
unidentified workers’ back pay by deducting FICA contributions, ASG
taxes, and payments received from the total regular and overtime wages
earned.
VI. Other Related Claims
A. NRLB Exclusive Jurisdiction Issue
Before dealing with the merits of the Vietnamese workers’ other related
claims, we first discuss TC12’s contention that the overall theme of these
claims falls outside our jurisdiction because they are directly within the
exclusive jurisdiction of the Labor Relations Management Board
(“NLRB”). See Labor Management Relations Act, 1947, 29 LT.S.C.A. §
141 et seq. TC12 cites the case of Suki v. Star Kist Samoa, Inc., 4
A.S.R.2d 135 (Trial Div. 1987), as authority for its proposition that the
workers’ discrimination and related claims are within the NLRB’s
exclusive jurisdiction.
In Suki, the court held that the NLRB exercised exclusive jurisdiction
over unfair labor practice complaints filed in the High Court of American
Samoa if they were within the NLRB’s jurisdiction, and the NLRB had
not declined jurisdiction. Id. The court dismissed for lack of jurisdiction
97
the employee’s claim of work-place discrimination for attempting to
organize a labor union finding that “[e]mployment discrimination on
account of union activity is perhaps the single most obvious example of
conduct committed to the regulatory authority of the NLRB.” Id. at 137.
However, unlike the claim presented in Suki, the resolution of
employees’ assorted claims are not related to any foiled attempt to
organize a labor union, and are not otherwise specifically reserved to the
NLRB’s jurisdiction. Therefore, these claims remain within our
jurisdiction.
B. Substandard Room and Board
The Chinese workers and Vietnamese workers contend that Daewoosa
Samoa and Lee failed to provide them with adequate housing and food as
promised in their employment contracts. Daewoosa Samoa and Lee
admit that they owe the workers a duty to provide them with suitable
housing and nutritional meals. However, they contend that the provided
lodging and food satisfied their contractual obligations.
It is clear that the housing and meals at the Daewoosa facility fell short of
Daewoosa Samoa and Lee’s representations, and the workers’
expectations. The rooms were overcrowded, and the bathroom facilities
inadequate and ill-equipped. In addition, the workers’ meals did not
meet the asserted standard for nutritional food set forth by the United
States Department of Agriculture (“USDA”) nutritional guidelines. The
USDA Food and Nutrition Center recommends a daily intake of and
variety from the five basic food groups: 1) carbohydrates; 2) vegetables;
3) fruits; 4) dairy products; and 5) protein. 29
Dr. Margaret credibly explained that Daewoosa Samoa and Lee did not
comply with these basic guidelines by failing to provide fresh vegetables
and fruits in the workers’ daily meals. Although Dr. Margaret was
unable to determine whether the meals satisfied other USDA nutritional
requirements, evidence elicited from the workers suggested that the
meals were overall below USDA standards.
[45] In addition to our finding that the Vietnamese workers are
contractually entitled to free room and board, we further find that due to
the substandard quality of the Daewoosa provided meals and
accommodations, none of the boarding workers, including the Chinese
workers, should be required to pay for such accommodations. In
addition, the Chinese workers, and Vietnamese workers are entitled to
29
The Food and Nutrition Center is an information branch of the
National Agricultural Library, which is part of the U.S. Department of
Agriculture, Agricultural Research Service.
98
compensation for being subjected to such poor living conditions in the
amount of $1,500 each.
C. Withholding of Passports and Identification Cards
The Chinese workers and Vietnamese workers also assert that Daewoosa
Samoa and Lee illegally withheld their passports and certificate of alien
registration receipt cards. Daewoosa Samoa and Lee argue that they held
on to the workers’ passports and other identification documents for
immigration processing purposes.
[46] A passport, or any other document purporting to show one’s
identity, is perhaps one’s most personal possession, especially sacred to
one traveling to a foreign country. In addition, American Samoa law
requires that every alien carry their registration card on their person at all
times. According to A.S.C.A. § 41.0310(a), “[e]very alien . . . shall at all
times carry with him and have in his personal possession any certificate
of alien registration receipt card issued him.” Id. (emphasis added).
Failure to comply with A.S.C.A. § 41.0310 subjects the registered alien
to criminal penalty, a $500 fine, or, for most aliens the worst
consequence, deportation. See A.S.C.A. § 41.03l0(b)-(c).
[47] Rather than taking the workers’ identification documents to further
any immigration purpose, it is apparent that Daewoosa Samoa and Lee
illegally maintained workers’ passports, and registration cards, without
any legal right, and as a means of limiting the workers’ egress and
ingress from the compound. For this transgression, the Chinese workers
and Vietnamese workers are entitled to compensation in the amount of
$1,000 each.
D. Returning Workers to China and Vietnam
The workers allege that Daewoosa Samoa and Lee violated their due
process rights under the Revised Constitution of American Samoa Article
I § 2, by having them deported without an opportunity to consult an
attorney or have a deportation hearing. The workers provide no legal
premise for holding a private employer subject to the Article I § 2 due
process requirement, and without such an explanation their due process
claim necessarily fails.
The workers also claim that Daewoosa Samoa and Lee violated an
alleged statutory right under A.S.C.A. § 41.0408(i) to remain in
American Samoa for up to 10 days after the revocation of their
sponsorship.
[48] When read in its entirety, A.S.C.A. § 41.0408(i) governs the
99
conduct of the immigration board, which is empowered with the authority
to deport, not the alien’s sponsor or employer. While a sponsor or
employer may be instrumental in initiating the process of deportation by
revoking sponsorship or terminating employment, it is ultimately the
immigration board that makes the finding of deportation. Furthermore,
the immigration laws allow an alien worker’s sponsor almost unlimited
discretion to revoke sponsorship, the only requirement being that the
sponsor provide written notice to the immigration board and the person
sponsored of his or her intent to end the alien’s sponsorship. See
A.S.C.A. § 41.0408(g).30 We, therefore, cannot find that Daewoosa
Samoa and Lee, or any other employer defendant, violated any right
allegedly granted aliens under A.S.C.A § 41.0408(i).
VII. Indemnification
TC12 asserts that Daewoosa Samoa and Lee are liable to reimburse
TC12 approximately $450,000.00, the portion of the initial fees collected
by TC12 from the recruited Vietnamese workers and transferred by
TC12 to Daewoosa Samoa and Lee. Basically, TC12 requests that
Daewoosa Samoa and Lee indemnify it an amount of the initial fees for
which we have found them jointly and severally liable.
[49-50] Admittedly, a large portion of the money TC12 gave Daewoosa
Samoa and Lee was earmarked to pay for the Vietnamese workers’
individual immigration bonds, for which Daewoosa Samoa and Lee
posted only a lump-sum immigration bond in the amount of $10,000.
However, as discussed in a previous section, the contract requirement
that the Vietnamese workers pay initial fees, and, for purposes of this
discussion, that the TC12-recruited Vietnamese workers pay initial fees,
in the first instance, was unlawful as an unconscionable contract clause.
“Generally, a contract to indemnify against the consequences of a
wrongful act, or a contract of indemnity growing immediately out of, and
connected with, an illegal or immoral act is void and will not be enforced
by a court of justice.” 41 AM. JUR. 2d Indemnity § 11 (1995); Kansas
City Operating Corporation v. Durwood 278 F.2d. 354 (8th Cir. 1960);
see also 8 SAMUEL WILLISTON ET AL., A TREATISE ON THE LAW OF
CONTRACTS § 19:18 (4th ed, 1998). Because TC12 together with
Daewoosa Samoa and Lee were joint parties to the unlawful contract
clause requiring that the Vietnamese workers pay initial fees, we leave
them as we find them, and accordingly, we refuse to enforce any implied
30
In effect, the broad discretion provided a sponsor by American
Samoa’s immigration laws may allow a sponsor with an opportunity to
take advantage of their sponsored worker, as became evident in this case.
However, immigration law reform is a matter for legislative review, not
judicial interpretation.
100
right of indemnification as between TC12 and Daewoosa Samoa and Lee.
Order
A. Individual Back Wages and Liquidated Damages
1. Chinese Workers. Daewoosa Samoa, and Lee are jointly and severally
liable to remunerate the Chinese workers listed back wages and an equal
amount as liquidated damages as indicated in the “Total Owed to the
Chinese Workers” column in the following table. In addition, Daewoosa
Samoa, and Lee shall pay the applicable federal and ASG government
agencies the amounts deducted from each Chinese workers’ earned
income respectively for FICA withholdings and ASG taxes, except for
those amounts already paid during the Spring of 2000.
CHINESE
WORKERS
Group 1
Jiang Shunzhe
ZhengWude
Li Chengnui
Jin Chungfen
Li Jin Hao
Bai Huiguo
Zhang Yuandou
Ju Dor,gming
Li Huxie
PiaoYingjun
Piao Chenghuan
Piao Rilong
Zhang Liangho
Group 2
Lu Yingzhe
Jin Mingzhen
Tan Zhen
Kang Donghuan
Lu Zhan Zhi
Gross
Total
Earned
FICA
Deduction
ASG
Tax
Deduct.
Total
Amount
Paid
Total
Back
Wages
$13,225.41
$13,225.41
$17,679.15
$13,225.41
$13,225.41
$13,225.41
$17,679.15
$13,225.41
$13,225.41
$13,225.41
$13,225.41
$13,225.41
$13,225.41
$1,011.74
$1,011.74
$1,352.45
$1,011.74
$1,011.74
$1,011.74
$1,352.45
$1,011.74
$1,011.74
$1,011.74
$1,011.74
$1,011.74
$1,011.74
$264.51
$264.51
$353.83
$264.51
$264.51
$264.51
$353.83
$264.51
$264.51
$264.51
$264.51
$264.51
$264.51
$7,937.38
$0.00
$9,722.99
$0.00
$0.00
$7,764.99
$9,724.69
$9,229.87
$0.00
$0.00
$0.00
$0.00
$7,878.91
$4,011.78
$11,949.16
$6,299.88
$11,949.16
$11,949.16
$4,184.17
$6,248.18
$2,719.29
$11,949.78
$11,949.78
$11,949.78
$11,949.78
$4,070.25
$4,011.78
$11,949.16
$6,299.88
$11,949.16
$11,949.16
$4,184.17
$6,248.18
$2,719.29
$11,949.78
$11,949.78
$11,949.78
$11,949.78
$4,070.25
$8023.56
$23,898.32
$12,599.76
$23,898.32
$23,898.32
$8368.32
$12,496.36
$5,438.58
$23,898.32
$23,898.32
$23,898.32
$23,898.32
$8,140.50
$10,725.30
$10,725.30
$10,725.30
$10,725.30
$10,725.30
$820.49
$820.49
$820.49
$820.49
$820.49
$214.51
$214.51
$214.51
$214.51
$214.51
$0.00
$0.00
$7,271.73
$0.00
$0.00
$9,690.30
$9,690.30
$2,418.57
$9,690.30
$9,690.30
$9,690.30
$9,690.30
$2,418.57
$9,690.30
$9,690.30
$19,380.60
$19,380.60
$4,837.14
$19,380.60
$19,380.60
101
FLSA
Total Owed
Liquidated to Chinese
Damages
Workers
2. IMS Recruited Vietnamese Workers. Daewoosa Samoa, Lee, and
IMS are jointly and severally liable to pay each IMS recruited
Vietnamese worker back wages, and, if opted-in, an equal amount as
liquidated damages as indicated in the “Total Owed to IMS Workers”
column in the following table. In addition, Daewoosa Samoa, Lee, and
IMS shall pay the applicable federal and ASG government agencies the
amounts deducted from each IMS recruited Vietnamese workers’ earned
income respectively for FICA withholdings and ASG taxes, except for
those amounts already paid during the Spring of 2000.
IMS VIETNAMESE
WORKERS
Gross
Total
Earned
FICA
Deduction
ASG
Tax
Deduct.
Total
Payments
Received
Total
Back
Wages
FLSA
Liquidated
Damages
Total
Owed to
Workers
IMS Group 1
Nguyen Thi Chat
NguyenTM Phuong
Vu Thanh Hong
Nguyen T. Phuong
Le Bich Thuy
Trinh Thi Hao
Thinh Thi Oanh
Do Thi Gam
$12,514.74
$12,726.58
$12,491.90
$12,366.63
$13,224.65
$12,835.21
$12,579.02
$12,386.43
$957.38
$973.58
$955.63
$946.05
$1,011.69
$981.89
$962.29
$947.56
$250.29
$254.53
$249.84
$247.33
$264.49
$256.70
$251.58
$247.73
$5,844.57
$6,120.13
$5,179.62
$5,611.02
$7,758.39
$8,180.05
$6,183.78
$7,705.96
$5,462.49
$5,378.33
$6,106.81
$5,562.23
$4,190.08
$3,416.56
$5,181.36
$3,485.18
$5,537.77
$5,378.33
$6,106.81
NO OPT-IN
NO OPT-IN
$3,416.56
NO OPT-IN
$3,485.18
$11,000.26
$10,756.66
$12,213.61
$5,562.23
$4,190.08
$6,833.12
$5,181.36
$6,970.36
IMS Group 2
Nguyen Thi Nga*
Vu Thi Sim
Hoang T.H. Minh
$10,595.54
$12,112.48
$12,388.42
$810.56
$926.60
$947.71
$211.91
$242.25
$247.77
$3,373.90
$7,311.93
$7,250.89
$6,199.17
$3,631.70
$3,942.04
$6,199.17
$3,631.70
$3,942.04
$12,398.33
$7,263.39
$7,884.09
*
Nguyen Thi Nga’s owed back wages award, and any other damages she
is entitled to, as well as any class-wide damages Dung Kim Thi Vu is
entitled to, shall be made payable to their respective estates, or their
equivalents.
102
IMS VIETNAMESE
WORKERS
Gross
Total
Earned
FICA
Deduction
ASG
Tax
Deduct.
Total
Payments
Received
Total
Back
Wages
FLSA
Liquidated
Damages
Total
Owed to
Workers
IMS Group 3
Nguyen T. M. Phu
Ta T. Hong Tuyet
Nguyen T. Loan
Cu T. M. Thien
Pham Thi Sinh
Vu T. Thu Hong
Hoang T. T. Hoa
Tran Thi Lieu
Tran T. T. Hang
Ly Thi Tuyet Sau
Cao Thi Thuy
Pham T. Huong
Nguyen Thi Tuvet
Tran Thi Mai Lam
$11,157.94
$11,109.51
$10,789.39
$10,779.67
$10,894.57
$11,126.39
$11,115.50
$11,082.24
$11,047.77
$10,971.31
$10,651.37
$11,034.37
$11,105.22
$11,051.60
$853.58
$849.88
$825.39
$824.64
$833.43
$851.17
$850.34
$847.79
$845.15
$839.31
$814.83
$844.13
$849.55
$845.45
$223.16
$222.19
$215.79
$215.59
$217.89
$222.53
$222.31
$221.64
$220.96
$219.43
$213.03
$220.69
$222.10
$221.03
$6,735.95
$6,859.28
$6,414.98
$6,150.38
$6,289.31
$6,243.46
$6,388.62
$6,427.76
$6,306.56
$6,279.37
$5,646.64
$6,124.13
$6,308.47
$6,172.39
$3,345.25
$3,178.16
$3,333.23
$3,589.05
$3,553.93
$3,809.23
$3,654.23
$3,585.04
$3,675.10
$3,633.21
$3,976.87
$3,845.42
$3,725.10
$3,812.73
NO OPT-IN
$3,178.16
$3,333.23
NO OPT-IN
$3,553.93
$3,809.23
NO OPT-IN
NO OPT-IN
NO OPT-IN
$3,633.21
$3,976.87
NO OPT-IN
$3,725.10
$3,812.73
$3,345.25
$6,356.32
$6,666.46
$3,589.05
$7,107.87
$7,618.47
$3,654.23
$3,585.04
$3,675.10
$7,266.42
$7,953.74
$3,845.42
$7,450.19
$7,625.46
IMS Group 4
Nguyen T. B Luong
Hoang Thi Lien
Nguyen Thi Hanh
Nguyen Thi Hong
Dang T. T. Huyen
Nguyen T. T. Hien
Vu Thi Ngoc Anh
Nguyen T. T. Mai
Bui Thi Cuc
Nguyen Thi Thoan
Duong Thi Hien
Vu Thi Bich Hong
Pham T Thuy Ngan
Nguyen T. B. Thuy
Dao Van Hung
Nguyen Thi Ha
Tran Thi Thu Ha
$10,691.55
$10,190.07
$10,107.40
$10,107.40
$10,155.28
$10,693.39
$10,643.60
$10,523.03
$10,218.47
$10,185.92
$10,168.68
$10,185.92
$10,348.69
$10,768.08
$10,124.64
$10,185.92
$10,185.92
$817.90
$779.54
$773.22
$773.22
$776.88
$818.04
$814.24
$805.01
$781.71
$779.22
$777.90
$779.22
$791.67
$823.76
$774.53
$779.22
$779.22
$ 213.83
$ 203.80
$ 202.15
$ 202.15
$ 203.11
$ 213.87
$ 212.87
$ 210.46
$ 204.37
$ 203.72
$ 203.37
$ 203.72
$ 206.97
$ 215.36
$ 202.49
$ 203.72
$ 203.72
$5,945.66
$5,778.83
$5,535.72
$5,573.56
$5,728.38
$5,819.51
$5,853.87
$5,716.34
$6,000.48
$5,987.65
$5,894.83
$5,904.56
$9,570.71
$6,641.03
$5,702.77
$6,011.10
$6,070.10
$3,714.15
$3,427.90
$3,596.32
$3,558.48
$3,446.91
$3,841.97
$3,762.62
$3,791.21
$3,231.91
$3,215.32
$3,292.57
$3,298.41
$0.00
$3,087.93
$3,444.84
$3,191.87
$3,132.87
$3,714.15
NO OPT-IN
$3,596.32
$3,558.48
$3,446.91
$3,841.97
$3,762.62
$3,791.21
NO OPT-IN
$ 3,215.32
NO OPT-IN
NO OPT-IN
NO OPT-IN
$3,087.93
$3,444.84
NO OPT-IN
$3,132.87
$7,428.30
$3,427.90
$7,192.63
$7,116.95
$6,893.82
$7,683.94
$7,525.25
$7,582.43
$3,231.91
$6,430.65
$3,292.57
$3,298.41
$0.00
$6,175.85
$6,889.68
$3,191.87
$6,265.75
3. TC12 Recruited Vietnamese Workers. Daewoosa Samoa, Lee, and
TC12 are jointly and severally liable to pay each TC12 recruited
Vietnamese worker back wages, and, if opted-in, an equal amount as
liquidated damages, as indicated in the “Total Owed to TC12 Workers”
column in the following table. In addition, Daewoosa Samoa, Lee, and
TC12 shall pay the applicable federal and ASG government agencies the
amounts deducted from each TC12 recruited Vietnamese workers’
earned income respectively for FICA withholdings and ASG taxes,
except for those amounts already paid during the Spring of 2000.
103
TC12
VIETNAMESE
WORKERS
Gross
Total
Earned
FICA
Deduction
ASG
Tax
Deduct.
Total
Payments
Received
Total
Back
Wages
FLSA
Liquidated
Damages
Total
Owed to
Workers
TC12 Group 1
Nguyen Thi Thai
Pham Thi Ngan
Nguyen T. M. Hang
Bui Thi Hau
Hoang Thi Tham
Nguyen Thi Hang
Nguyen Thi Anh
Hoang Thi Loan
Dang T. T. Binh
Nguyen T. Lan Anh
Dao Thi Thanh Tam
Bui Thi Thoa
Do Thi Xuan
Nguyen Thi Nga
Do Thi Nga
Le Thi Voc
Vu Thi Duyen
Nguyen Thi Thuy
$9,389.92
$9,819.52
$9,726.96
$12,870.48
$9,427.56
$9,967.38
$9,370.91
$9,378.43
$9,640.06
$9,462.69
$9,259.84
$9,357.36
$9,805.47
$9,407.15
$9,280.90
$9,290.34
$9,350.02
$9,707.81
$718.33
$751.19
$744.11
$984.59
$721.21
$762.50
$716.87
$717.45
$737.46
$723.90
$708.38
$715.84
$750.12
$719.65
$709.99
$710.71
$715.28
$742.65
$187.80
$196.39
$194.54
$257.41
$188.55
$199.35
$187.42
$187.57
$192.80
$189.25
$185.20
$187.15
$196.11
$188.14
$185.62
$185.81
$187.00
$194.16
$5,026.59
$5,453.55
$5,328.06
$8,816.03
$5,306.34
$5,471.99
$5,050.01
$5,059.82
$5,818.71
$5,348.15
$5,224.90
$5,045.69
$5,421.12
$5,054.39
$5,243.22
$5,045.59
$4,991.44
$5,200.91
$3,457.20
$3,418.38
$3,460.24
$2,812.45
$3,211.46
$3,533.54
$3,416.60
$3,413.59
$2,891.08
$3,201.39
$3,141.36
$3,408.68
$3,438.12
$3,444.97
$3,142.07
$3,348.23
$3,456.30
$3,570.09
$3,457.20
$3,418.38
$3,460.24
NO OPT-IN
NO OPT-IN
$3,533.54
NO OPT-IN
$3,413.59
$2,891.08
NO OPT-IN
$3,141.36
$3,408.68
$3,438.12
$3,546.13
$3,142.07
$3,348.23
$3,456.30
NO OPT-IN
$6,914.40
$6,836.76
$6,920.49
$2,812.45
$3,211.46
$7,067.08
$3,416.60
$6,827.17
$5,782.16
$3,201.39
$6,282.72
$6,817.37
$6,876.24
$6,991.10
$6,284.15
$6,696.46
$6,912.60
$3,570.09
TC12 Group 2
La Ngoc Hung
Nguyen Thi Thuan
Vu Thi Kim Yen
Hoang Trong Thuy
Nguyen Thai Quang
Nguyen Thi Men
PharnThi Thuy
Nguyen Thi Ngoc
Phan Van Nghia
Nguyen Van Phong
Pham Van Tien
Nguyen Tien Phong
Nguyen Van Dung
Bui Dinh Hung
Nguyen Huu The
An Viet Tuan
Dinh Quang Dai
Nguyen D. D. Linh
Ngo Thi Dung
$9,284.01
$11,750.82
$9,381.67
$9,157.90
$9,314.65
$9,734.17
$9,687.24
$9,720.01
$9,316.56
$9,239.96
$9,004.49
$9,332.02
$9,475.51
$8,345.66
$9,324.22
$9,345.29
$9,381.12
$9,477.42
$9,253.51
$710.23
$898.94
$717.70
$700.58
$712.57
$744.66
$741.07
$743.58
$712.72
$706.86
$688.84
$713.90
$724.88
$638.44
$713.30
$714.91
$717.66
$725.02
$707.89
$185.68
$235.02
$187.63
$183.16
$186.29
$194.68
$193.74
$194.40
$186.33
$184.80
$180.09
$186.64
$189.51
$166.91
$186.48
$186.91
$187.62
$189.55
$185.07
$4,761.74
$8,067.37
$5,190.16
$4,711.21
$4,804.24
$5,512.89
$5,774.71
$5,191.94
$4,739.55
$4,396.47
$4,689.49
$5,099.96
$5,010.07
$3,343.43
$4,759.25
$4,883.79
$5,141.23
$5,144.59
$5,241.70
$3,626.36
$2,549.49
$3,286.18
$3,562.95
$3,611.54
$3,281.93
$2,977.71
$3,590.08
$3,677.96
$3,951.83
$3,446.06
$3,331.52
$3,551.05
$4,196.87
$3,665.18
$3,559.67
$3,334.61
$3,418.26
$3,118.84
$3,626.36
$2,549.49
$3,286.18
$3,562.95
$3,611.54
$3,281.93
$2,977.71
NO OPT-IN
$3,677.96
$3,951.83
$3,446.06
$3,331.52
$3,551.05
$4,196.87
$3,665.18
$3,559.67
$3,334.61
$3,418.26
$3,118.84
$7,252.72
$5,098.98
$6,572.36
$7,125.90
$7,223.08
$6,563.87
$5,955.42
$3,590.08
$7,355.92
$7,903.67
$6,892.12
$6,663.04
$7,102.10
$8,393.74
$7,330.37
$7,119.35
$6,669.22
$6,836.52
$6,237.68
TC12 Group 3
Hoang Thi Hang
Tran Khanh Minh
Nguyen T. B. Tuyet
Nguyen T. L. Minh
$9,464.42
$9,441.44
$9,517.72
$10,306.70
$724.03
$722.27
$728.11
$788.46
$189.29
$188.83
$190.35
$206.13
$4,977.01
$4,935.33
$4,837.86
$5,392.08
$3,574.09
$3,595.01
$3,761.40
$3,920.02
$3,574.09
NO OPT-IN
$3,761.40
$3,920.02
$7,148.19
$3,595.01
$7,522.79
$7,840.04
104
Bui T. T. Huyen
Nguyen Hai Que
Nguyen Thi Tuyet
Nguyen Thi Cuc
Tran Thi Hoa
TC12
VIETNAMESE
WORKERS
$9,762.84
$746.86 $195.26 $5,086.83
$9,770.50
$747.44 $195.41 $5,138.23
$9,504.31
$727.08 $190.09 $5,275.89
$9,366.43
$716.53 $187.33 $5,161.49
$9,429.63
$721.37 $188.59 $5,129.78
Gross
FICA
ASG
Total
Total
Deduction
Tax
Payments
Earned
Deduct. Received
$3,733.89
$3,733.89
$3,689.41
$3,689.41
$3,311.25
$3,311.25
$3,301.08
$3,301.08
$3,389.89 NO OPT-IN
Total
FLSA
Back
Liquidated
Wages
Damages
$7,467.78
$7,378.82
$6,622.51
$6,602.16
$3.389.89
Total
Owed to
Workers
TC12 Group 3
(cont’d)
Nguyen Le Huong
Pham Thi Phuong
Tran Thanh Yen
Do Thi Sau
Nguyen Thi H. Sen
Khong Thi Van Nga
Do Thi Chau Giang
Nguyen Van Thanh
Le Thi Huong
Le Thi Thanh
$9,259.51
$9,343.45
$9,184.65
$9,381.75
$9,010.24
$9,280.26
$8,991.09
$9,213.23
$9,642.30
$9,138.55
$708.35
$714.77
$702.63
$717.70
$689.28
$709.94
$687.82
$704.81
$737.64
$699.10
$185.19
$186.87
$183.69
$187.64
$180.20
$185.61
$179.82
$184.26
$192.85
$182.77
$4,838.76
$4,863.67
$4,882.39
$4,937.43
$4,605.08
$4,797.71
$4,540.25
$4,681.02
$5,231.99
$4,892.09
$3,527.20
$3,578.14
$3,415.94
$3,538.98
$3,535.67
$3,587.00
$3,583.20
$3,643.13
$3,479.82
$3,364.59
$ 3,527.20
$3,578.14
NO OPT-IN
$3,538.98
$3,535.67
3,587.00
$3,583.20
$3,643.13
$3,479.82
$3,364.59
$7,054.41
$7,156.27
$3,415.94
$7,077.96
$7,071.34
$7,174.00
$7,166.40
$7,286.27
$6,959.65
$6,729.17
TC12 Group 4
Nguyen Thi P. Lan
Ta Thi Quynh
Tran Thi Hai
Pham Thi T. Huyen
Do Thi Kim Thuy
Vo Thi Quang
Duong Thi Ha
Pham Thu Ha
Pham Thi Ngan
Cao Thi Nga
Nguyen TK Phuong
Nguyen Thi Lan
Duong Van Tuan
Pham Van Niem
Ngo Van Thuy
Ngo Van Tho
Dinh Van Cuong
Pham Thi Luc
Ngo Thanh Hoan
Pham Thi Hai
Nguyen Thi Chien
Tran Thi Yen
Nguyen Thi Hanh
Ha Thi Bich Hong
Nguyen Thi Nhung
Tran Thi Thu
Nguyen Thi Yen
Le T. Thanh Huyen
$11,237.44
$10,005.92
$9,927.01
$9,926.94
$9,892.47
$9,923.81
$9,930.91
$10,013.97
$9,926.94
$9,923.11
$9,957.58
$9,923.11
$9,833.11
$9,329.46
$9,321.80
$9,427.13
$9,578.41
$9,892.61
$9,892.47
$9,892.47
$9,892.61
$9,892.47
$9,892.47
$9,892.47
$9,877.15
$9,925.03
$9,930.91
$9,896.30
$859.66
$765.45
$759.42
$759.41
$756.77
$759.17
$759.71
$766.07
$759.41
$759.12
$761.75
$759.12
$752.23
$713.70
$713.12
$721.18
$732.75
$756.78
$756.77
$756.77
$756.78
$756.77
$756.77
$756.77
$755.60
$759.26
$759.71
$757.07
$224.75
$200.12
$198.54
$198.54
$197.85
$198.48
$198.62
$200.28
$198.54
$198.46
$199.15
$198.46
$196.66
$186.59
$186.44
$188,54
$191.57
$197.85
$197.85
$197.85
$197.85
$197.85
$197.85
$197.85
$197.54
$198.50
$198.62
$197.93
$5,109.17
$5,168.53
$5,180.39
$5,190.89
$4,407.32
$5,204.25
$5,240.11
$5,625.56
$5,105.33
$5,102.85
$5,235.04
$5,128.99
$5,102.85
$5,235.04
$5,128.99
$5,418.95
$4,551.28
$4,593.24
$4,685.59
$5,309.88
$4,968.36
$4,745.51
$4,810.67
$5,209.49
$4,688.80
$4,806,81
$4,924.37
$4,888.70
$5,043.86
$3,871.82
$3,788.66
$3,778.10
$4,530.53
$3,761.91
$3,732.47
$3,422.06
$3,863.66
$3,862.68
$3,761.63
$3,836.54
$3,781.36
$3,194.13
$3,293.26
$3,098.46
$4,102.81
$4,344.73
$4,252.26
$3,627.97
$3,969.61
$4,192.34
$4,127.18
$3,728.36
$4,235.21
$4,160.45
$4,048.21
$4,052.61
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
$4,530.53
NO OPT-IN
NO OPT-IN
NO OPT-IN
$3,863.66
NO OPT-IN
NO OPT-IN
$3,836.54
NO OPT-IN
NO OPT-IN
$3,293.26
$3,098.46
$4,102.81
$4,344.73
$4,252.26
$3,627.97
NO OPT-IN
$4,192.34
$4,127.18
$3,728.36
$4,235.21
$4,160.45
$4,048.21
$4,052.61
$5,043.86
$3,871.82
$3,788.66
$3,778.10
$9,061.05
$3,761.91
$3,732.47
$3,422.06
$7,727.32
$3,862.68
$3,761.63
$7,673.08
$3,781.36
$3,194.13
$6,586.51
$6,196.91
$8,205.63
$8,689.47
$8,504.51
$7,255.93
$3,969.61
$8,384.67
$8,254.35
$7,456.71
$8,470.41
$8,320.90
$8,096.41
$8,105.21
105
Tran Thi Hong
Hoang Tuyet Hoa
Nguyen Thi Le
Luong Thi Hang
Hoang Thi Ngoan
Giang Thi T. Nhan
Do Thi Hai Van
Le Thi Thu Huong
Dao Thi Ngoc Thuy
TC12
VIETNAMESE
WORKERS
$9,892.65
$756.79 $197.85
$9,905.88
$757.80 $198.12
$9,992.05
$764.39 $199.84
$9,896.37
$757.07 $197.93
$9,892.68
$756.79 $197.85
$9,892.47
$756.77 $197.85
$9,953.89
$761.47 $199.08
$ 9,923.11
$759.12 $198.46
$9,892.47
$756.77 $197.85
Gross
FICA
ASG
Total
Deduction
Tax
Earned
Deduct.
$5,084.68
$4,267.85
$5,268.26
$5,116.03
$5,273.00
$4,864.98
$5,249.15
$4,844.33
$4,675.69
Total
Payments
Received
TC12 Group 4
(cont’d)
Nguyen Thi Hai
Le Thi Yen
Ngo Thu Hang
$ 9,829.45
$10,401.86
$ 9,275.84
$751.95
$795.74
$709.60
$196.59
$208.04
$185.52
$5,109.17 $3,771.74
$4,844.33 $4,553.75
$4,675.69 $3,705.03
TCI2 Group 5
Bui Thi Hoa
Pham Thi Hung
Nguyen Thi Lam
Vu Thi Huong
Truong Thi Hoa
Luyen T Minh Thuy
Nong Thi Nhung
VuThi Nga
Nguyen Thi Hien
Pham Thi Thai
Nguyen Thi Loan
Vu Thi Bien
Pham T Thanh Nam
Tran Thi Phuong
Doan Thi H. Thuy
Do Thi Van Anh
Vu Thi Hoang Hau
$9,974.08
$9,913.77
$9,881.14
$10,329.25
$10,275.70
$ 9,980.72
$10,289.04
$9,816.03
$9,891.98
$9,873.48
$9,852.42
$9,862.13
$9.829,44
$9,896.46
$9,754.89
$10,233.50
$10,009.94
$763.02
$758.40
$755.91
$790.19
$786.09
$763.53
$787.11
$750.93
$756.74
$755.32
$753.71
$754.45
$751.95
$757.08
$746.25
$782.86
$765.76
$199.48
$198.28
$197.62
$206.59
$205.51
$199.61
$205.78
$196.32
$197.84
$197.47
$197.05
$197.24
$196.59
$197.93
$195.10
$204.67
$200.20
$5,149.21
$5,190.13
$4,909.89
$5,095.85
$5,266.48
$5,016.73
$5,098.79
$4,908.83
$5,011.87
$4,858.49
$4,954.09
$4,971.04
$4,832.83
$5,088,59
$4801.05
$4,999.33
$5,000.31
TCI2 Group 6
Truong T. Le Quyen
Nguyen Thi Tham
Nguyen T. K. Loan
Nguyen Le Van
Duong Thi Huyen
An Thi Minh
Dinh Thi Thuy
Doan Thi Kim Yen
Phung Thi Lan
Nguyen Thi T. Thuy
Nguyen T. K. Dung
Duong Thi Hao
$8,875.26
$9,038.04
$9,591.46
$9,436.03
$9,917.35
$9.516,79
$9,507.28
$9,465.08
$9,241.17
$9,126.13
$8,926.97
$9,306.14
$ 678.96
$691.41
$733.75
$721.86
$758.68
$728.03
$727.31
$724.08
$706.95
$698.15
$682.91
$711.92
$177.51
$180.76
$191.83
$188.72
$198.35
$190.34
$190.15
$189.30
$184.82
$182.52
$178.54
$186.12
$4,284.45
$4.539.30
$5,672.06
$5,241.78
$5,636.98
$4,980.66
$4,866.27
$4,994.69
$4,916.76
$4,637.66
$4,534.39
$4,597.87
106
$3,853.32
$3,853.32
$4,682.11
$4,682.11
$3,759.56 NO OPT-IN
$3,825.34 NO OPT-IN
$3,665.04 NO OPT-IN
$4,072.87
$4,072.87
$3,744.19 NO OPT-IN
$4,121.20
$4,121.20
$4,262.16
$4,262.16
Total
FLSA
Back
Liquidated
Wages
Damages
$7,706.65
$9,364.22
$3,759.56
$3,825.34
$3,665.04
$8,145.73
$3,744.19
$8,242.40
$8,524.31
Total
Owed to
Workers
$3,771.74
$4,553.75
$3,705.03
$7,543.48
$9,107.50
$7,410.06
$3,862.37
$3,766.96
$4,017.72
$4,236.63
$4,017.61
$4,000.85
$4,197.35
$3,959.95
$3,925.53
$4,062.20
$3,947.57
$3,939,39
$4,048.06
$3,852.86
$4,012.49
$4,246.64
$4,043.67
NO OPT-IN
NO OPT-IN
$4,017.72
$4,236.63
$4,017.61
$4,000.85
$4,197.35
$3,959.95
$3,925.53
$4,062.20
$3,947.57
$3,939.39
$4,048.06
$3,852.86
$4,012.49
$4,246.64
$4,043.67
$3,862.37
$3,766.96
$8,035.44
$8,473.25
$8,035.23
$8,001.70
$8,394.71
$7,919.91
$7,851.06
$8,124.40
$7,895.13
$7,878.79
$8,096.13
$7,705.72
$8,024.99
$8,493.27
$8,087.33
$3,734.35
$3,626.56
$2,993.82
$3,283.67
$3,323.34
$3,617.76
$3,723.56
$3,557.01
$3,432.63
$3,607.79
$3,531.12
$3,810.22
$3,734.35
$3,626.56
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
$3,723.56
$3,557.01
$3,432.63
$3,607.79
$3,531.12
$3,810.22
$7.468.69
$7,253.13
$2,993.82
$3,283.67
$3,323.34
$3,617.76
$7.447.11
$7,114.02
$6,865.27
$7,215.59
$7,062.25
$7,620.45
Nguyen Thi Hanh
Juong Thi M. Tam
$9,137.62
$9,484.23
$699.03
$725.54
$182.75
$189.68
TCI2 Group 7
Tran Thi Bich Hoa
Nguyen Thi Lan
Nguyen Thi Thu
Le Thi Van
Nguyen Hai Yen
Nguyen Thi Them
Nguyen Thi Anh
Le Thi Yen
Pham Thi X. Huong
TC12
VIETNAMESE
WORKERS
$9,366.41
$716.53 $187.33
$8,795.74
$672.87 $175.91
$8,600.41
$657.93 $172.01
$9,368.16
$716.66 $187.36
$9,424.04
$720.94 $188.48
$9,393,92
$718.63 $187.88
$9,443.33
$722.41 $188.87
$9,241.93
$707.01 $184.84
$9,438.87
$722.07 $188.78
Gross
FICA
ASG
Total
Deduction
Tax
Earned
Deduct.
TC12 Group 7
(cont’d)
Le Thi Kim Thanh
Nguyen Thi Thuy
Nguyen Thi Lai
Banh Thi Ha
Ngo Anh Tuyet
Nguyen Thi H. Hue
Tran Thi Thuy
Do Thi Anh Tuyet
Luu T. Phuong Hoa
Luong Thi An Thai
Chu Thi Thu
Vu Thi Tuyet
$8,983.73
$9,087.83
$9,527.22
$8,866.59
$8,565.94
$8,937.59
$8,927.87
$8,909.84
$8,929.93
$8,906.98
$9,379.05
$9,335.11
$687.26
$695.22
$728.83
$678.29
$655.29
$683.73
$682.98
$681.60
$683.14
$681.38
$717.50
$714.14
$179.67
$181.76
$190.54
$177.33
$171.32
$178.75
$178.56
$178.20
$178.60
$178.14
$187.58
$186.70
TCI2 Group 8
Hoan Anh Dung
Hoan Quyet Thang
Nguyen Van Trung
$10,000.98
$8,288.68
$8,416.04
$765.07
$634.08
$643.83
$200.02 $6,125.14 $2,910.75
$165.77 $3,414.28 $4,074.54
$168.32 $3,744.41 $3,859.48
NO OPT-IN $2,910.75
NO OPT-IN $4,074.54
$ 3,859.48 $7,718.96
TCI2 Group 9
Le Thi Duo
Bui Thi Huyen
$6,881.30
$6,929.18
$526.42
$530.08
$137.63 $2,656.86 $3,560.39
$138.58 $2,599.04 $3,661.47
NO OPT-IN $3,560.39
$ 3,661.47 $7,322.94
TC12 Group 10
Pham Thi Thu Nga
Hoang T. Thu Thuy
Bui Thi Ut
Nguyen Thi Tuyet
Bui Thi Phuong Lan
Vu Thi Ha
Mai Thi Oahn
Ninh Thi Chung
Bui T. Thanh Bang
$3,589.45
$3,521.20
$3,521.20
$3,529.00
$3,521.20
$3,521.20
$3,653.80
$3,653.80
$3,521.20
$274.59
$269.37
$269.37
$269.97
$269.37
$269.37
$279.52
$279.52
$269.37
$71.79
$70.42
$70.42
$70.58
$70.42
$70.42
$73.08
$73.08
$70.42
107
$4,796.07 $3,459.77
$4,813.71 $3,755.29
$3,459.77
$3,755.29
$6,919.53
$7,510.58
$4,948.88
$4,459.71
$4,175.46
$5,110.59
$5,160.79
$5,185.28
$5,194.57
$4,934.71
$4,917.93
Total
Payments
Received
$3,513.67
$3,513.67
$3,487.24
$3,487.24
$3,595.01
$3,595.01
$3,353.54
$3,353.54
$3,353.83 NO OPT-IN
$3,302.12 NO OPT-IN
$3,337.48 NO OPT-IN
$3,415.37
$3,415.37
$3,610.09
$3,610.09
Total
FLSA
Back
Liquidated
Wages
Damages
$7,027.33
$6,974.47
$7,190,01
$6,707.08
$3,353.83
$3,302.12
$3,337.48
$6,830.75
$7,220.18
Total
Owed to
Workers
$4,726.46
$4,874.57
$5,393.52
$4,656.07
$4,155.49
$5,017.60
$5,028.81
$4,904.12
$5,056.44
$5,059.23
$5,110.46
$5,043.90
$3,390.34
$3,336.28
$3,214.32
$3,354.89
$3,583.83
$3,057.51
$3,037.52
$3,145.92
$3,011.75
$2,988.23
$3,363.51
$3,390.37
$6,780.68
$3,336.28
$3,214.32
$6,709.79
$7,167.66
$3,057.51
$3,037.52
$3,145.92
$3,011.75
$2,988.23
$6,727.02
$3,390.37
$659.27
$659.27
$659.27
$699.39
$659.27
$645.45
$701.11
$714.93
$645.45
$2,583.80
$2,522.13
$2,522.13
$2,489.06
$2,522.13
$2,535.95
$2,600.10
$2,586.28
$2,535.95
$ 3,390.34
NO OPT-IN
NO OPT-IN
$ 3,354.89
$ 3,583.83
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
$ 3,363.51
NO OPT-IN
NO OPT-IN
$2,522.13
$2,522.13
$2,489.06
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
$2,535.95
$2,583.80
$5,044.27
$5,044.27
$4,978.12
$2,522.13
$2,535.95
$2,600.10
$2,586.28
$5,071.91
Hoang Thi Giang
Duong Thi Tam
Duong Thi Thom
Nguyen Thi Hien
Nguyen T. T Huong
Le Phi Mai Phuong
Nguyen Thi Huyen
Nguyen Thi Luan
Nguyen Thi T. Mai
Dao Thi Hong Van
$3,521.20
$3,595.30
$3,521.20
$3,529.00
$3,521.20
$3,521.20
$3,521.20
$3,521.20
$3,521.20
$3,521.20
$269.37
$275.04
$269.37
$269.97
$269.37
$269.37
$269.37
$269.37
$269.37
$269.37
$70.42
$71.91
$70.42
$70.58
$70.42
$70.42
$70.42
$70.42
$70.42
$70.42
$659.27
$659.27
$656.92
$708.60
$774.83
$659.27
$620.69
$659.27
$595.03
$634.62
$2,522.13
$2,589.08
$2,524.48
$2,479.85
$2,406.57
$2,522.13
$2,560.71
$2,522.13
$2,586.37
$2,546.78
$2,522.13
NO OPT-IN
NO OPT-IN
$2,479.85
$2,406.57
$2,522.13
$2,560.71
$2,522.13
$2,586.37
NO OPT-IN
$5,044.27
$2,589.08
$2,524.48
$4,959.70
$4,813.15
$5,044.27
$5,121.43
$5,044.27
$5,172.75
$2,546.78
TCI2 Group 11
Mai Thi Hong Phuc
Le Thi Thien
Nguyen Thi Luyen
Hoang Thi Ha
Pham Thi Van
Le Thi Hoai
Nguyen Thi Hoa
Le Thi Cuc
Nguyen Le Hoan
Nguyen Le Ngoc
Nguyen Thi Van
Nguyen Thi Thuy
Tran Thi Phuong
Le Thi Chi Lan
Nguyen Thi Hong
Nguyen Thi Thao
Dang Thi Oanh
Nguyen Lan Huong
Ngo Thi Vinh
Pham Yen Ly
Luu Thi Thuy
Vu Thi Thanh
Nguyen Thi Phan
Tran T. Kim Thanh
Ta Thi Thuy Ngan
Vu Thi Thom
Nguyen Thi Hang
Tran T. Thanh Tam
Pham Thi Ngan
Doan P. Cat Tuong
Vu Thi Kim Thanh
Nguyen Thi Hoai
$3,454.30
$3,540.10
$3,454.30
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,419.20
$3,427.00
$3,419.20
$3,423.10
$3,419.20
$3,419.20
$3,419.20
$3,427.00
$3,423.10
$3,427.00
$3,419.20
$3,419.20
$3,544.00
$3,471.85
$3,462.10
$3,544.00
$3,540.10
$3,553.39
$3,419.20
$3,419.20
$264.25
$270.82
$264.25
$261.57
$261.57
$261.57
$261.57
$261.57
$261.57
$261.57
$261.57
$261.57
$261.57
$262.17
$261.57
$261.87
$261.57
$261.57
$261.57
$262.17
$261.87
$262.17
$261.57
$261.57
$271.12
$265.60
$264.85
$271.12
$270.82
$271.83
$261.57
$261.57
$69.09
$70.80
$69.09
$68.38
$68.38
$68.38
$68.38
$68.38
$68.38
$68.38
$68.38
$68.38
$68.38
$68.54
$68.38
$68.46
$68.38
$68.38
$68.38
$68.54
$68.46
$68.54
$68.38
$68.38
$70.88
$69.44
$69.24
$70.88
$70.80
$71.07
$68.38
$68.38
$659.27
$651.05
$659.27
$659.27
$659.27
$659.27
$659.27
$659.27
$659.27
$657.11
$654.67
$659.27
$659.27
$714.65
$603.98
$656.97
$659.27
$659.27
$650.06
$695.87
$669.84
$790.53
$659.27
$674.54
$659.27
$659.27
$659.27
$659.27
$659.27
$935.45
$659.27
$659.27
$2,461.69
$2,547.43
$2,461.69
$2,429.98
$2,429.98
$2,429.98
$2,429.98
$2,429.98
$2,429.98
$2,432.14
$2,434.58
$2,429.98
$2,429.98
$2,381.64
$2,485.27
$2,435.80
$2,429.98
$2,429.98
$2,439.19
$2,400.42
$2,422.93
$2,305.76
$2,429.98
$2,414.71
$2,542.73
$2,477.55
$2,468.74
$2,542.73
$2,539.21
$2,275.04
$2,429.98
$2,429.98
NO OPT-IN
NO OPT-IN
NO OPT-IN
$2,429.98
$2,429.98
$2,429.98
$2,429.98
$2,429.98
$2,429.98
$2,432.14
$2,434.58
NO OPT-IN
$2,429.98
$2,381.64
$2,485.27
$2,435.80
NO OPT-IN
$2,429.98
NO OPT-IN
$2,400.42
$2,422.93
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
NO OPT-IN
$2,468.74
NO OPT-IN
$2,539.21
$2,275.04
$2,429.98
$2,429.98
$2,461.69
$2,547.43
$2,461.69
$4,859.95
$4,859.95
$4,859.95
$4,859.95
$4,859.95
$4,859.95
$4,864.27
$4,869.15
$2,429.98
$4,859.95
$4,763.29
$4,970.53
$4,871.60
$2,429.98
$4,859.95
$2,439.19
$4,800.85
$4,845.86
$2,305.76
$2,429.98
$2,414.71
$2,542.73
$2,477.55
$4,937.47
$2,542.73
$5,078.42
$4,550.08
$4,859.95
$4,859.95
4. Independent Vietnamese Workers. Daewoosa Samoa, and Lee are
jointly and severally liable to remunerate the independent Vietnamese
workers listed back wages and an equal amount as liquidated damages as
indicated in the “Total Owed to the Independent Workers” column in the
following table. In addition, Daewoosa Samoa, and Lee shall pay the
108
applicable federal and ASG government agencies the amounts deducted
from each independently recruited Vietnamese workers’ earned income
respectively for FICA withholdings and ASG taxes, except for those
amounts
already
paid
during
the
Spring
of
2000.
INDEPENDENT
VIETNAMESE
WORKERS
Ha Thi Huong
Tran Thi Thu
Ngo Thi Tiep
Ngo Thi Nguyen
Tran Thi Phuong
Mai Thi Thuy
Gross
Total
Earned
$7,030.00
$6,985.96
$7,037.66
$7,114.50
$7,118.33
$5,766.00
FICA
Deduction
ASG
Tax
Deduct.
Total
Payments
Received
Total
Back
Wages
FLSA
Liquidated
Damages
Total
Owed to
Workers
$537.80
$534.43
$538.38
$544.26
$544.55
$441.10
$140.60
$139.72
$140.75
$142.29
$142.37
$115.32
$3,208.57
$3,159.78
$3,222.40
$3,208.57
$3,210.12
$6,243.19
$3,143.04
$3,152.03
$3,136.13
$3,219.38
$3,221.29
$ 0.00
$3,143.04
$3,152.03
$3,136.13
NO OPT-IN
$3,221.29
NO OPT-IN
$6,286.07
$6,304.06
$6,272.25
$3,219.38
$6,442.58
$ 0.00
B. Class-wide Back Wages
1. IMS Group 1. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on February 8, 1999 back wages
in the amount of $4,847.88. In addition, Daewoosa Samoa, Lee, and
IMS shall pay the applicable federal government agency the amount of
$967.01, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 1 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and IMS shall pay the
applicable ASG agency the amount of $252.98, minus any amount paid
during the Spring of 2000, as monies deducted from each IMS group 1
worker’s income to pay his or her ASG taxes.
2. IMS Group 2. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on March 8, 1999, back wages in
the amount of $4,590.97. In addition, Daewoosa Samoa, Lee, and IMS
shall pay the applicable federal government agency the amount of
$894.96, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 2 worker’s income to pay his or her
FICA contributions. Also, Daweoosa Samoa, Lee, and IMS shall pay the
applicable ASG agency the amount of $233.98, minus any amount paid
during the Spring of 2000, as monies deducted from each IMS group 2
worker’s income to pay his or her ASG taxes.
3. IMS Group 3. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on May 14, 1999, back wages in
the amount of $3,622.61. In addition, Daewoosa Samoa, Lee, and IMS
shall pay the applicable federal government agency the amount of
109
$841.05, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 3 worker’s income to pay his or her
FICA contributions.
Also, Daewoosa Samoa, Lee, and IMS shall pay the applicable ASG
agency the amount of $219.88, minus any amount paid during the Spring
of 2000, as monies deducted from each IMS group 3 worker’s income to
pay his or her ASG taxes.
4. IMS Group 4. Daewoosa Samoa, Lee, and IMS are jointly and
severally liable to pay each IMS-recruited Vietnamese worker, not listed
above, that arrived in American Samoa on June 12, 1999, back wages in
the amount of $3,237.37. In addition, Daewoosa Samoa, Lee, and IMS
shall pay the applicable federal government agency the amount of
$789.68, minus any amount paid during the Spring of 2000, as monies
deducted from each IMS group 4 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and IMS shall pay the
applicable ASG agency the amount of $206.45, minus any amount paid
during the Spring of 2000, as monies deducted from each IMS group 4
worker’s income to pay his or her ASG taxes.
5. TC12 Group 1. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each-TC12 recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 15, 1999, back
wages in the amount of $3,320.32. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $741.68, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 1 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $193.90, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 1 worker’s income to pay his or her ASG taxes.
6. TC12 Group 2. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 19, 1999, back
wages in the amount of $3,507.06. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $726.82, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 2 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $190.02, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 2 worker’s income to pay his or her ASG taxes.
7. TC12 Group 3. Daewoosa Samoa, Lee, and TC12 are jointly and
110
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 22, 1999, back
wages in the amount of $3,554.20. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $720.75, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 3 worker’s income to pay his or her
FICA contributions. Also Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $188.43, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 3 worker’s income to pay his or her ASG taxes.
8. TC12 Group 4. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on July 19, 1999, back
wages in the amount of $3,936.98. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $756.79, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 4 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $197.85, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 4 worker’s income to pay his or her ASG taxes.
9. TC12 Group 5. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on August 3, 1999, back
wages in the amount of $4,008.11. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $763.49, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 5 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $199.60, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 5 worker’s income to pay his or her ASG taxes.
10. TC12 Group 6. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on August 10, 1999, back
wages in the amount of $3,532.64. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $713.47, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 6 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $186.31, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 6 worker’s income to pay his or her ASG taxes.
111
11. TC12 Group 7. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay’ each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on August 24, 1999 back
wages in the amount of $3,325.85. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $697.35, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 7 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $182.31, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 7 worker’s income to pay his or her ASG taxes.
12. TC12 Group 8. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on October 1, 1999, back
wages in the amount of $3,614.92. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $681.00, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 8 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $178.04, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 8 worker’s income’ to pay his or her ASG taxes.
13. TC12 Group 9. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on October 1, 1999, back
wages in the amount of $3,610.93. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $528.25, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 9 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $138.10, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 9 worker’s income to pay his or her ASG taxes.
14. TC12 Group 10. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on May 18, 2000, back
wages in the amount of $2,534.62. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $271.08, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 10 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $70.87, minus any amount
112
paid during the Spring of 2000, as monies deducted from each TC12
group 10 worker’s income to pay his or her ASG taxes.
15. TC12 Group 11. Daewoosa Samoa, Lee, and TC12 are jointly and
severally liable to pay each TC12-recruited Vietnamese worker, not
listed above, that arrived in American Samoa on May 25, 2000, back
wages in the amount of $2,439.34. In addition, Daewoosa Samoa, Lee,
and TC12 shall pay the applicable federal government agency the amount
of $263.54, minus any amount paid during the Spring of 2000, as monies
deducted from each TC12 group 11 worker’s income to pay his or her
FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay
the applicable ASG agency the amount of $68.90, minus any amount
paid during the Spring of 2000, as monies deducted from each TC12
group 11 worker’s income to pay his or her ASG taxes.
C. Other Vietnamese Workers Entitled to ELSA Liquidated Damages
A number of Vietnamese workers affirmatively opted-in to the FLSA suit
by either being a named plaintiff in the lawsuit, or signing the January
17, 2001 consent to FLSA litigation, but were listed more than once, or
not listed at all on the Daewoosa Samoa provided payroll summaries.
Apparently, some of the opted-in Vietnamese workers were named more
than once in the summaries because more than one worker with the same
name existed. This makes it impossible for the court to decipher which
Vietnamese workers opted-in, and, therefore, entitled to FLSA liquidated
damages amongst those workers who share the same name with other coworkers. Thus, within 50 days from the date this opinion and order is
entered, those workers who opted-in the FLSA litigation by either being
a named plaintiff in the complaint or executing the January 17, 2001
consent, but who share the same name with other Vietnamese workers
must file proof with the Court that they are, indeed, either the named, or
consenting worker listed, and are, therefore, entitled to liquidated
damages in an amount equal to owed back-wages. Without such proof,
those opted-in Vietnamese workers with duplicative names shall not be
entitled to liquidated damages. Those opted-in Vietnamese workers with
duplicative names, who are named plaintiffs, include: Nguyen Thi Thuy,
and Nguyen Thi Anh. Additional opted-in Vietnamese workers with
duplicative names, who signed the January 17, 2001 consent to FLSA
litigation include: Nguyen Thi Tuyet, Le Thi Yen, Tran Thi Phuong,
Pham Thi Ngan, and Nguyen Thi Hien.
In addition, some of the Vietnamese workers who opted-in to the FLSA
litigation were not listed at all on the payroll summaries provided by
Daewoosa Samoa. These workers, who are entitled to class-wide back
wages as listed above, are also entitled to liquidated damages in an
113
amount equal to owed back wages. These unlisted opted-in Vietnamese
workers, who are named plaintiffs, include: Le Thi Thanh Thuy, Pham
Van Liem, Hoang Van Tai, Nguyen Thuy, Noang Thi Hang, Giang Thi
Thanh Nhan, and Ngo Van Thu. Additional unlisted opted-in Vietnamese
workers, who signed the January 17, 2001 consent to litigation include:
Trinh Thi Danh, Cu Thi Minh Thien, An Thu Minh, Ngo Thi Oinh, and
Hang Thu Ngo.
D. Other Class-wide Damage
1. Daewoosa Samoa, Lee, IMS, and TC12 shall reimburse the Chinese
workers and Vietnamese workers for charging them illegal initial fees as
follows: a) Daewoosa Samoa and Lee are jointly and severally liable to
reimburse each member of the Chinese workers’ class $7,683.00; b)
Daewoosa Samoa, Lee and IMS are jointly and severally liable to
reimburse each member of the IMS recruited Vietnamese workers’ class
$3,000.00; c) Daewoosa Samoa, Lee, and TC12 are jointly and severally
liable to reimburse each member of the TC12 recruited Vietnamese
workers’ class $4,000.00; and d) Daewoosa Samoa and Lee are jointly
and severally liable to reimburse each member of the independently
recruited Vietnamese workers’ class $5,000.
2. Daewoosa Samoa, Lee, IMS, and TC12 shall compensate the Chinese
workers, and the Vietnamese workers for providing them substandard
room and board as follows: a) Daewoosa Samoa and Lee are jointly and
severally liable to reimburse each Chinese worker, and each
independently recruited Vietnamese worker $1,500.00; b) Daewoosa
Samoa, Lee, and IMS are jointly and severally liable to reimburse each
IMS recruited Vietnamese worker $1,500.00; and c) Daewoosa Samoa,
Lee, and TC12 are jointly and severally liable to reimburse each TC12
recruited Vietnamese worker $1,500.00.
3. Daewoosa Samoa, Lee, IMS, and TC12 shall compensate the Chinese
workers and Vietnamese workers for illegally withholding the passports
and identification cards as follows: a) Daewoosa Samoa, and Lee are
jointly and severally liable to reimburse each Chinese worker, and
independently recruited Vietnamese worker $1,000.00; b) Daewoosa
Samoa, Lee, and IMS are jointly and severally liable to reimburse each
IMS recruited Vietnamese worker $1,000.00; and c) Daewoosa Samoa,
Lee, and TC12 are jointly and severally liable to reimburse each TC12
recruited Vietnamese worker $1,000.00.
D. TC12’s Cross Claim
TC12’s cross-claim against
indemnification is denied.
Daewoosa
114
Samoa
and
Lee
for
E. Attorneys Fees and Costs
Daewoosa Samoa, and Lee are jointly and severally liable to pay the
reasonable attorney’s fees and costs of the Chinese workers in the
amount of $25,000. Likewise, Daewoosa Samoa, Lee, IMS, and TC12
are jointly and severally liable to pay the reasonable attorney’s fees and
costs of the Vietnamese workers in the amount of $75,000.
It is so Ordered.
**********
AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO
for AASU AND AOLOAU CATHOLIC CHOIR, Plaintiffs,
v.
NTV ELECTRONICS, MANAGER NING TAN,
KENNY AND HELEN YOUNG, and
PROGRESSIVE INSURANCE COMPANY, Defendants.
______________________________
NTV ELECTRONICS and MANAGER NING TAN,
Cross-Claimants/Cross-Defendants,
v.
OXFORD/PROGRESSIVE GROUP, et al.,
Cross-Defendants/Cross-Claimants.
High Court of American Samoa
Trial Division
CA No. 74-00
June 13, 2002
[1] The court has discretion to stay execution or other process to enforce
a judgment pending disposition of a motion for new trial upon
appropriate conditions to secure the interests of the prevailing party at
trial.
115
[2] The court has discretion to grant a stay pending appeal upon the filing
of a supersedeas bond approved by the court.
[3] Factors to consider in deciding whether a stay should be granted
include: (1) the likelihood of the movant would prevail on the motion or
appeal; (2) irreparable harm to the movant if a stay is not granted; (3)
irreparable harm to the other party if a stay is granted; and (4) a stay’s
effect on the public interest.
[4] Where court is considering a stay of a money judgment, the
judgment-debtor’s ability to pay, the availability of funds to him or her,
and other difficulties in the collection process are relevant to the court’s
deliberations.
[5] Stay of both judgment and order of garnishment was proper where
insurance company judgment-debtor raised serious questions of the
sufficiency of evidence in motion for new trial, where garnishment would
impede insurance company judgment-debtor’s normal business
operations and ability to meet its insurer obligations, and where
insurance company was willing to post bond in the amount of the
judgment.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs, Fiti Sunia, Attorney General, and Tala
Uiagalelei, Assistant Attorney General
For Defendants/Cross-Claimants/Cross-Defendants NTV
Electronics and Manager Ning Tan, and Defendants Kenny
and Helen Young, Paul F. Miller
For Defendant/Cross-Defendant/Cross-Claimant Progressive
Insurance Company (Pago Pago), Ltd., Roy J.D. Hall, Jr.
ORDER GRANTING MOTIONS TO STAY EXECUTION OF
JUDGMENT PENDING DECISION ON MOTION
FOR NEW TRIAL AND APPEAL
The decision of the court on the cross-claim of cross-claimant NTV
Electronics (“NTV”) and Manager Ning Tan (“Tan”) against crossdefendant Progressive Insurance Company (Pago Pago), Ltd.
(‘Progressive”) was entered on March 18, 2002. The court has under
advisement the motion of Progressive for reconsideration or new trial
regarding the court’s decision.
Meanwhile, NTV and Tan served a writ of garnishment to reach
Progressive’s funds deposited with the Bank of Hawaii and Amerika
116
Samoa Bank to enforce their judgment against Progressive. In response,
Progressive moved to stay execution of the judgment pending the court’s
ruling on the reconsideration or new trial motion and, if necessary,
pending appeal. On June 12, 2002, we heard the stay motion and, having
considered counsel’s arguments, will grant the motion.
[1-2] The court has discretion to stay execution or other process to
enforce a judgment pending disposition of a motion for new trial upon
appropriate conditions to secure the interests of the prevailing party at
trial. T.C.R.C.P. 62(b). Similarly, the court has discretion to grant a stay
pending appeal upon the filing of a supersedeas bond approved by the
court. T.C.R.C.P. 62(d); see also A.S.C.A. § 43.0803. Progressive is
prepared to post a bond in the principal amount of the judgment,
$54,506.80.
[3-4] Factors to consider in deciding whether a stay should be granted
include: (1) the likelihood of the movant would prevail on the motion or
appeal; (2) irreparable harm to the movant if a stay is not granted; (3)
irreparable harm to the other party if a stay is granted; and (4) a stay’s
effect on the public interest. See Asifoa v. Lualemana, 17 A.S.R.2d 100,
102 (App. Div. 1990). Ability and availability of funds to pay the
judgment, and other difficulty in the collection process are particularly
relevant to money judgments. See Euta v. Etimani, 25 A.S.R.2d 54, 55
(Trial Div. 1993)
[5] The motion for reconsideration or new trial raises serious questions
concerning the sufficiency of the evidence and other legal matters that we
must resolve in deciding the motion, or that the appellate court must
resolve if we deny the motion and Progressive appeals. The judgment is
for money. If the stay is granted, NTV and Tan will lose the immediate
financial benefit of the judgment, but post-judgment interest will provide
adequate compensation for the delay. The bank garnishments impede
Progressive’s normal business operations. Moreover, should Progressive
ultimately prevail, it may not be readily able to recover funds already
paid on the judgment. On balance, the harm to Progressive outweighs
the harm to NTV and Tan by a significant margin. The public interest in
Progressive’s ability to readily meet its insurer obligations is also
apparent. Related to the public interest, the amount of the proposed bond
adequately protects NTV and Tan should they ultimately prevail. We
will, therefore, grant Progressive’s motion for a stay of execution of
judgment pending decision on the motion for new trial, subject to
Progressive filing a bond in the amount of $54,506.80.
Strictly speaking, Progressive’s motion for a stay of execution of
judgment pending appeal is premature. However, if eventually the
motion for reconsideration or new trial is denied and Progressive
117
appeals, it would be appropriate in this case to keep the bond
continuously in effect and replace the stay of execution of judgment
pending decision on the motion for new trial with a stay of execution of
judgment pending appeal. See Wolfgang v. Mid-American Motorsports,
Inc., 914 F. Supp. 434, 440-441 (D.C. Kan. 1996).
Order
1. We grant Progressive’s motion for a stay of execution of judgment.
2. Execution of the judgment is stayed pending the court’s decision on
the motion for reconsideration or new trial. The stay shall apply to the
ongoing garnishment proceedings and any future garnishment or other
execution proceedings when the stay becomes effective. The stay shall
become effective upon the court’s approval of a bond in the amount of
$54,506.80 to be filed by Progressive in this action.
3. The foregoing stay applies to the ongoing garnishment proceedings.
When the stay become effective, the writ of garnishment issued on April
26, 2002, is quashed, and Progressive’s funds held by the Bank of
Hawaii and Amerika Samoa Bank are released from garnishment.
4. Should we deny Progressive’s motion for reconsideration or new trial
and Progressive appeals, execution of the judgment is stayed pending
appeal, replacing the execution of the judgment pending decision on the
motion for new trial, and the bond posted in the amount of $54,506.80
shall automatically remain in effect as security for the stay pending
appeal. Any party may, however, then move for termination or
appropriate modification of the stay pending appeal.
It is so Ordered.
**********
118
BORAL GAS OF AMERICAN SAMOA, INC., Petitioner,
v.
FAAFETAI IAULUALO, ACTING TREASURER
OF AMERICAN SAMOA, Respondent.
High Court of American Samoa
Trial Division
CA No. 87-01
October 3, 2002
[1] The High Court, Trial Division, has exclusive, original jurisdiction
over all judicial proceedings in American Samoa, both criminal and civil,
with respect to the Samoan Income Tax Act.
[2] Actions pertaining to improperly assessed tax deficiencies and
penalties in American Samoa are subject to the statutory requirements
applicable to such actions brought in a Tax Court under the United States
internal revenue code.
[3] Disputed legal questions present nothing for trial and are
appropriately resolved on a motion for summary judgment
[4] The limitation period for the government to bring an action seeking
assessment of additional income taxes, penalties, or interest under the
Samoan Income Tax Act is three years from the date that the taxpayer
files the tax return.
[5] Statutory interpretation is purely a question of law to be decided by
the court.
[6] The purpose of statutory interpretation is to effectuate the intention of
the legislature.
[7] The first step in statutory interpretation is determining whether the
language at issue has a plain and unambiguous meaning with regard to
the particular dispute in the case.
[8] When the words are either reasonably susceptible to different
meanings, conflict with the overall statutory purpose, or cause absurd
results, a court must look beyond literal statutory language.
[9] Where a statute is ambiguous, the court analyzes the design of the
119
statute as a whole and its object and policy.
[10] The court may examine sources other than the statute’s language for
evidence of legislative intent.
[11] A.S.C.A. § 11.0403 does supplant federal tax laws, but it merely
creates an additional, territorial tax modeled on the federal tax.
[12] While hiring an attorney or accountant does not insulate the
taxpayer from negligence penalties, good faith reliance on professional
advice concerning tax laws is a defense.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Petitioner, Daniel R. King
For Respondent, Benton H. Walton, IV, Assistant Attorney
General, and Henry W. Kappel, Legal Counsel to the Governor
ORDER GRANTING PARTIAL SUMMARY JUDGMENTS
TO PLAINTIFF AND DEFENDANT
Petitioner Boral Gas of American Samoa, Inc. (“Boral”) brought this
action to redetermine tax deficiencies, penalties, and interest assessed by
respondent Faafetai Iaulualo (“Iaulualo”), as the Acting Treasurer of
American Samoa and Commissioner of Internal Revenue under the
Samoan Income Tax Act (“SITA”), for Boral’s 1994, 1996, 1997, 1998,
and 1999 tax years, respectively ending June 30, 1995, 1997, 1998,
1999, 2000. Both parties filed motions for summary judgment. The
motions were heard on April 29, 2002, with all counsel present.
Jurisdiction
[1-2] This court has exclusive, original jurisdiction over all judicial
proceedings in American Samoa, both criminal and civil, with respect to
SITA. A.S.C.A. § 11.0408. Actions pertaining to improperly assessed tax
deficiencies and penalties are subject to the statutory requirements
applicable to such actions brought in a Tax Court under the United States
internal revenue code (“IRC”). Klauk v. American Samoa Gov’t, 13
A.S.R.2d 52, 55 n.2 (Trial Div. 1989) (the High Court sits as a Tax Court
in deficiency proceedings); see A.S.C.A. § 11.0401; 26 U.S.C.A. §§
7441-7478. In this case, the court’s jurisdiction properly attached when
a notice of deficiency was mailed to Boral, the taxpayer, and it filed this
action contesting the deficiency within 90 days. See Stephens v.
Commissioner of Revenue, 15 A.S.R.2d 87, 88 (Trial Div. 1990) citing
26 U.S.C.A. § 6213(a).
120
Summary Judgment Standard
[3] Summary judgment is appropriate when there is “no genuine issue as
to any material fact.” T.C.R.C.P. 56(c); Plaza Department Store v.
Dunchnak, 26 A.S.R.2d 82, 83 (Trial Div. 1994). The pleadings and
supporting documents are viewed in the light most favorable to the nonmoving party. Id. Furthermore, as in this case, “disputed ‘legal questions
. . . present nothing for trial and [are] appropriately resolved on a motion
for summary judgment.’” Flair Broadcasting Corp. v. Powers, 733
F.Supp. 179, 184 (S.D.N.Y. 1990), quoting Holland Indus. v. Adamar of
New Jersey, Inc., 550 F. Supp. 646, 648 (S.D.N.Y. 1982).
Discussion
A. Statute of Limitations Bar on Tax Years 1994 and 1996
[4] Boral points out, and Iaulualo concedes, that the assessment of any
additional income taxes, penalties, or interest for Boral’s 1994 and 1996
tax years, ending June 30, 1995, and June 30, 1997, are barred by the
statute of limitations. The limitation period is three years after the tax
return is filed. SITA § 6501(a). Boral’s tax returns for these two tax
years were filed more than three years before Iaulualo asserted the
assessed tax deficiencies, penalties, and interest for those tax years.
Therefore, Boral is clearly entitled to summary judgment for these two
tax years.
B. Undisputed Calculations
Boral’s calculations on the taxes owed for the remaining tax years in
question, 1997, 1998, and 1999, ending June 30, 1998, 1999, and 2000,
and Iaulualo’s calculations on the assessed tax deficiencies, penalties,
and interest owed for the same years are undisputed. There is no genuine
issue of material fact regarding the essential legal issue: whether the
applicable corporate income tax rates are set forth in § 11(b) of the
United States income tax law (‘tIRC”) through adoption by reference in
A.S.C.A. § 11.0403(a), or in A.S.C.A. § 11.0533. The action is therefore
ripe for summary judgment with respect to the corporate income tax rate
issue.
C. Applicable Tax Rates
In 1963, American Samoa adopted by reference the IRC of 1954, as it
was then in effect and may be later modified, as the income tax law of the
territory. A.S.C.A. § 11.0403(a). Excepted were: (1) IRC provisions
clearly inapplicable or incompatible with the intent of § 11.0403(a), id.,
121
and (2) amendments enacted by the Legislature of American Samoa.
A.S.C.A. § 11.0501.
IRC § 11(b) sets forth the IRC income tax rates in general on
corporations. This section is included in IRC’s subtitle A, which was
specifically adopted as part of the SITA. A.S.C.A. § 11.0403(a). The
corporate tax rates in IRC § 11(b) were substantially reduced by the
federal Tax Reform Act of 1986, effective for tax years beginning on or
after July 1, 1987. U.S. Pub. L. No. 99-514 (effective Oct. 22, 1986).
Initially, the reduced tax rates automatically became the effective tax
rates in the territory under A.S.C.A. § 11.0403(a). See, e.g., Patu v.
Westervelt, 4 A.S.R. 812, 819-822 (Trial Div. 1974) (acknowledging
amendment to Tax Court rules contained in the IRC as applicable in a
High Court deficiency hearing under SITA).
The Legislature of American Samoa responded by enacting the “Revenue
Recoupment Act of 1987,” adding A.S.C.A. § 11.0533 as a new
amendment to the SITA. Am. Samoa P.L. No. 20-51 § 3 (approved by
the Governor Feb. 29, 1988 and effective. June 4, 1988). The new
amendment added a fourth tax bracket to SITA that was deliberately
removed from IRC § 11(b).31 The rates established in the “Revenue
31
26 U.S.C.A. § 11(b), as amended by U.S. Pub. L. 99-514, reads:
(b) Amount of tax.-(1) In general. –The amount of tax imposed by subsection (a)
shall be the sum of-(A) 15 percent of so much of the taxable income as does
not exceed $50, 000,
(B) 25 percent of so much of the taxable income as
exceeds $50,000 but does not exceed $75,000, and
(C) 34 percent of so much of the taxable income as
exceeds $75,000.
In the case of a corporation which has taxable income in
excess of $100,000 for any taxable year, the amount of tax
determined under the preceding sentence of such taxable year
shall be increased by the lesser of (i) 5 percent of such excess,
or (ii) $11,750.
A.S.C.A. § 11.0533(b) reads:
11(b) Amount of tax.
The amount of tax imposed by subsection (a) shall be the sum
of-(1) 15 percent of so much of the taxable income as does not
exceed $50,000,
(2) 25 percent of so much of the taxable income as exceeds
$50,000 but does not exceed $75, 000,
122
Recoupment Act of 1987” were to remain in effect until July 1, 1989.
A.S.C.A. § 11.0533(b); P.L. No. 20-51 § 3. However, in the following
year, the Legislature amended § 11.0533 and removed this sunset
provision by deleting subsection (b) in its entirety. Am. Samoa P.L. No.
21-8 § 1 (effective July 22, 1989). Thus, the corporate income tax rates
created by the “Revenue Recoupment Act of 1987” in A.S.C.A. §
11.0533 effectively became permanent statutory law.
Boral argues, however, that when IRC § 11(b) was once again amended
in 1993, see U.S. Pub. L. 103-66 (effective Aug. 10, 1993) it was
reincorporated into the SITA through A.S.C.A. § 11.0403(a) and
implicitly repealed A.S.C.A. § 11.0533. Needless to say, the current IRC
corporate tax rates, enacted in 1993, are substantially less than the
corporate rates found in A.S.C.A. § 11.0533. 32 Iaulualo on the other
(3) 34 percent of so much of the taxable income as exceeds
$75,000 but does not exceed $650,000, and
(4) 44 percent of so much of the taxable income as exceeds
$650,000.
In the case of a corporation which has taxable income in
excess of $100,000 for any taxable year, the amount of tax
determined under the preceding sentence for such taxable year
shall be increased by the lesser of (a) 5 percent of such excess
or (b) $11,750.
32
26 U.S.C.A. § 11(b) currently reads:
(b) Amount of tax.-(1) In general. –The amount of tax imposed by subsection (a)
shall be the sum of-(A) 15 percent of so much of the taxable income as does not
exceed $50,0000,
(B) 25 percent of so much of the taxable income as exceeds
$50,000 but does not exceed $75,000,
(C) 34 percent of so much of the taxable income as exceeds
$75,000 but does not
exceed $10,000,000, and
(D) 35 percent of so much of the taxable income as exceeds
$10,000,000.
In the case of a corporation which has taxable income in
excess of $100,000 for any taxable year, the amount of tax
determined under the preceding sentence for such taxable year
shall be increased by the lesser of (1) 5 percent of such excess,
or (ii) $11.750.. -In the case of a corporation which has taxable
income in excess of $15,000,000, the amount of the tax
determined under the foregoing provisions of this paragraph
shall be increased by an additional amount equal to the lesser
123
hand counters that A.S.C.A. § 11.0533 is, and has been since it was
passed, the corporate tax rate of American Samoa notwithstanding any
subsequent changes to the IRC. Both parties make valid points. Standing
alone, A.S.C.A. § 11.0403 presently adopts the 1993 version of IRC §
11(b), which has not been subsequently modified by enactment of a local
statute. Standing alone, A.S.C.A. § 11.533 presently eliminates the 1986
version of IRC § 11(b).
[5-7] The decision in this case, therefore, is one of statutory
interpretation, which is purely a question of law to be decided by the
court. United States v. Blue Cross Blue Shield of Mich., 859 F.Supp.
283, 286 (E.D. Mich. 1994). The purpose of statutory interpretation is to
effectuate the intention of the legislature. Id. We begin, as always, by
determining “whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). We do so because “[o]ften
these words are sufficient in and of themselves to determine the purpose
of the legislation.” United States v. American Trucking Associations, 310
U.S. 534, 543 (1940). In this case, however, the two resulting sets of
distinct corporate income tax rates established by reading the plain
language of the two statutes creates an ambiguous and irreconcilable
impasse at face value.
[8-10] When the words are either reasonably susceptible to different
meanings, conflict with the overall statutory purpose, or cause absurd
results, a court must look beyond literal statutory language.
International Tel. & Tel. Corp. v. General Tel. & Elecs.Corp., 518 F.2d
913, 917 (9th Cir. 1975). We analyze “the design of the statute as a
whole and [] its object and policy.” Crandon v. United States, 494 U.S.
152 (1990). In this respect, it is “proper to examine sources other than
[the statute’s] language for evidence of legislative intent, and the
legislative history of the statute in question is, of course, relevant.”
Kennedy Bros. v. Property Tax Appeal Bd., 510 N.E.2d 1275, 1279 (Ill.
App. 2 Dist. 1987).33
of (i) 3 percent of such excess, or (ii) $100,000.
Boral also argues that revenue-raising acts should be construed strictly
against the government and in favor of the taxpayer. See United States v.
Merriam, 263 U.S. 179 (1923). While generally true, Boral’s contention
sweeps too broadly. This cannon of construction applies “only when
there is doubt as to whether a statue or ordinance imposing or increasing
a tax applies to certain taxpayers.” Kennedy Bros., 510 N.E.2d at L279.
At issue here is not whether the corporate tax applies to Boral, but,
rather, what rate Boral should pay. The rule of leniency is not invoked.
33
124
[11] A.S.C.A. § 11.0403 only adopts the income tax and income tax rules
that are “not clearly inapplicable or incompatible with the intent of [that]
section.” It does “not purport to supplant federal tax laws, but it merely
creates an additional, territorial tax modeled on the federal tax.”
Alamoana Recipe Inc. v. American Samoa Government, 24 A.S.R.2d
156, 157 (Trial Div. 1993). This intent to create two different statutory
schemes was evident in the adoption of § 11.0533.
The Legislature stated in the preamble to the act that its purpose was [t]o
restore tax revenues lost by American Samoa as a consequence of the
enactment by the United States Congress of the Tax Reform Act of
1986.” The Legislature found that the economic considerations that led
the U.S. Congress to reduce the corporate tax rates were “not applicable
across the board to American Samoa’s island economy.” Am. Samoa
P.L. No. 20-51 § 2(3). Such a reduction would “be expected to result in
a substantial loss of tax revenues and in substantial budgetary deficits.”
Id. at § 2(4). Therefore, “in order to secure the welfare of the Territory
and its inhabitants,” the Legislature found it desirable to retain higher tax
rates for “large corporate enterprises.” Id. at §§ 2(6), (7).34
Also compelling is the fact that the Legislature originally intended for §
11.0533 to last for one year, presumably to allow the government to
adjust their budget to the expected losses in revenue. As already noted,
the very next year the Legislature repealed the sunset provision. Am.
Samoa P.L. No. 21-8 § 1. The Legislature could not have known at the
time that the U.S. Congress would eventually readjust IRC § 11(b). We
glean from this that when our Legislature repealed the sunset provision
they intended to keep the higher corporate tax rate until they saw fit to
change it. When IRC § 11(b) was amended in 1993, it therefore became
a provision that was “incompatible” with the intent of A.S.C.A. §
11.0403 to create a “separate territorial income tax” as manifested
through § 11.0533.
We cannot accept the interpretation Boral urges that whenever the IRC is
amended, it automatically becomes the law of the territory. Citing
A.S.C.A. § 11.0403, Boral latches onto the phrase that “the income tax
and the income tax rules . . . enacted or adopted [under the IRC] shall be
deemed to impose a separate territorial tax.” (emphasis added). Boral’s
interpretation fails to look at the word “shall” in its proper context. As
we have noted, IRC provisions “shall” become the law of the territory
only when they are not “inapplicable or incompatible” with SITA.35
34
The Legislature, also replaced all references in the SITA to the IRC of
1954 with references to the IRC of 1986. Am. Samoa P.L. No. 20-51 § 5.
35
Boral argues that interpreting § 11.0533 in the manner we have, if
applied to other SITA sections, will lead to absurd results. It notes that
125
We conclude that the corporate income tax rates in effect in American
Samoa are the tax rates set forth in A.S.C.A. § 11.0533. ASG is
therefore entitled to payment of the assessed deficiencies for Boral’s tax
years 1997, 1998, and 1999.
D. Penalties
Iaulualo also assessed an accuracy-related penalty of 20% against Boral
for “negligence or disregard of rules or regulations” and/or a “substantial
understatement of income tax.” SITA § 6662 (a)-(b). Iaulualo moved
for summary judgment on this issue. Boral did not make a cross-motion
for summary judgment on this point but instead opposed Iaulualo’s
motion claiming that a material issue of fact existed.
In support of its opposition to Iaulualo’s motion for summary judgment,
Boral submitted an affidavit from their vice president, Richard Young,
Jr., who stated that he was in charge of filing Boral’s tax returns for the
pertinent years. He stated that he engaged Daniel R. King (“King”) to
prepare and file Boral’s returns and that he relied on King’s advice
A.S.C.A. §§ 11.0504 and 11.0506 are incompatible with the current IRC
provisions that those sections modified and to therefore uphold them as
good law would create similar conflicts. For example, A.S.C.A. §
11.0504 amended IRC § 38, which applied to an “investment credit” for
depreciable property. That section was repealed in 1984 and replaced
with a general business credit. See U.S. Pub. L. No. 98-369, §§ 473(m)
(1) & 612 (E)(1). Boral argues that the only logical course is to find that
all these SITA provisions have been implicitly repealed by subsequently
enacted IRC amendments.
Because the interpretation of these sections is not an issue before us,
we are cautious to comment on Boral’s argument. We do note that we
have not merely accepted § 11.0533 at its face value. Rather, we have
reached our decision only after undertaking an exhaustive analysis, of all
the relevant statutory provisions and legislative history. Were we ever to
confront the seeming conflicts of § 11.0504 or § 11.0506, we would
apply the same mode of analysis to reach a result that would be
consistent with this court’s methodology and the Legislature’s intent.
We also note that in 2001, the Legislature froze the incorporation of
the IRC as of December 31, 2001. Am. Samoa P.L. No. 27-15
(approved by the Governor and, as emergency legislation, effective on
October 22, 2001). That amendment would surely affect our
interpretation of any conflicting statutes. But that aside, because the
Territory’s income tax laws are no longer subject to IRC amendments, it
would behoove the Legislature to clean up Title 11 and delete the
provisions, if any, that have been implicitly or explicitly repealed by their
actions.
126
concerning which tax rate was applicable. Additionally, Boral submitted
an affidavit by King, a Certified Public Accountant, who acknowledged
that he prepared Boral’s tax returns for the pertinent years. Furthermore,
King himself relied on advice from an ASG employee and tax advisor to
the ASG Tax Office.
[11] We need not dwell on this point. We agree with Boral that a
material issue of fact remains. “While hiring an attorney or accountant
does not insulate the taxpayer from negligence penalties, good faith
reliance on professional advice concerning tax laws is a defense.” Betson
v. C.I.R. Service, 802 F.2d 365, 372 (9th Cir. 1986), citing United States
v. Boyle, 469 U.S. 241, 250-252 (1985); see SITA § 6664(c). Contrast
Stroud v. United States, 906 F. Supp. 990, 997 (D.S.C. 1995) (plaintiffs
failed to carry burden that IRS’s finding of negligence was erroneous
when nothing in the record offered evidence that they relied on their
attorney’s advice).
Clearly, Boral has alleged facts sufficient to survive a motion for
summary judgment on the assessed penalties for Boral’s tax years 1997,
1998, and 1999.36 ASG is therefore not entitled to a summary judgment
for payment of those assessed penalties.
E. Interest
SITA §§ 6601, 6621 provides for payment of interest on underpayment
of income taxes owed. ASG is therefore also entitled to summary
judgment requiring payment of interest on assessed deficiencies, but not
on the assessed penalty amounts, for Boral’s tax years 1997, 1998, and
1999, in accordance with SITA §§ 6601, 6621.
F. Costs
SITA § 7430 provides for payment of reasonable litigation costs,
including reasonable court costs and attorney’s fees, to the prevailing
party. However, ASG is not a “prevailing party” by definition, SITA §
7430(c)(2)(A), and is therefore not entitled to recover reasonable
litigation costs on its favorable summary judgment for Boral’s tax years
1997, 1998, and 1999.
On the other hand, Boral is a “prevailing party” by the same definition.
It may therefore be entitled to recover reasonable litigation costs against
36
Boral’s uncontroverted reliance of professional advice stated under
oath appears, however, sufficient to support summary judgment in
Boral’s favor on the penalties issue should it remain undisputed upon
Boral’s motion for summary judgment on this issue.
127
ASG on its favorable summary judgment for Boral’s tax years 1994 and
1996. See SITA § 7420(b)(2). We do not, however, have enough
information to make a proper determination as to the amount of those
costs owed. We leave it to Boral to file in a timely manner appropriate
supporting documentation of its reasonable litigation costs.
Order
1. ASG’s motion for summary judgment is granted as the motion pertains
to the income tax deficiencies assessed against Boral in the amounts of
$40,849.56 for its tax year 1997, $55,010.00 for its tax year 1998, and
$52,599 for its tax year 1999, plus interest accrued to date and
continuing to accrue on each of the deficiency amounts, in accordance
with SITA §§ 6601, 6621, until its summary judgment is paid in full.
ASG’s summary judgment shall not include litigation costs.
2. ASG’s motion for summary judgment is denied as the motion pertains
to the penalties assessed against Boral for its tax years 1997, 1998, and
1999. Genuine issues of material facts are triable as to the penalties
assessed and interest on the penalties for Boral’s tax years 1997, 1998,
and 1999.
3. Boral’s motion for summary is granted as the motion pertains to the
income tax deficiencies, penalties, and interest assessed against Boral for
its tax years 1994 and 1996, and is denied, as the motion pertains to the
income tax deficiencies and interest assessed on each of the deficiency
amounts for its tax years 1997, 1998, and 1999.
4. Either party may request the court to adjudicate the amounts of its
respective entitlement to interest or reasonable litigation costs, including
reasonable attorney’s fees, by filing with the court and serving on the
opposing party one or more affidavits of its counsel or other suitable
person(s) setting forth the amounts claimed. If the other party contests
the amounts, the court will conduct an evidentiary or other appropriate
hearing and determine the issues.
It is so Ordered.
**********
128
RDL, INC.,/CIDA, INC., dba PACIFIC DESIGN
BUILD COLLABORATIVE, Plaintiffs
v.
AMERICAN SAMOA COMMUNITY COLLEGE, Defendant
High Court of American Samoa
Trial Division
CA No. 113-01
October 31, 2002
[1] Where opposing party has already answered pleading, leave of the
court is necessary to amend it.
[2] Whether to grant a motion to amend the pleadings lies within the
court's sound discretion.
[3] The Rules of Civil Procedure require the court to freely grant
amendments when justice so requires. However, leave to amend will be
denied when factors such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, or futility of amendment are
present.
[4] When a motion to amend concerns the addition of a party, the movant
bears the burden of demonstrating whether the third party they seek to
join satisfies the requirements of being a necessary joinder or a
permissive joinder under the rules.
[5] A necessary party is defined as a person whom in whose absence, and
among the already existing parties, complete relief cannot be accorded.
[6] Joint and several liability does not make a party "indispensable" for
purposes of Rule 19 of the Rules of Civil Procedure.
[7] Multiple parties may, but need not be, joined if claims against them
(1) arise out of the same transaction, occurrence, or series of transactions
or occurrences and (2) will present some question of law or fact in
common.
129
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and
ATIULAGI, Associate Judge.
Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendant, Paul F. Miller
ORDER GRANTING MOTION TO AMEND
COUNTER-CLAIM TO ADD A PARTY
[1] The defendant, American Samoa Community College (“ASCC”),
moves to amend its pleadings to add another party, JCW, Inc., to its
counterclaim. Because plaintiffs, RDL Inc.,/CIDA Inc., dba Pacific
Design Build Collaborative ("PDBC"), have filed a responsive pleading
and answered ASCC's counterclaim, leave of the court is therefore
required to add a new party. T.C.R.C.P. Rule 15(a); 3 JAMES WM.
MOORE ET AL., MOORE'S FEDERAL PRACTICE, § 15.16(1) (3d ed. 1999).
Rule 15(a) applies equally to plaintiffs and defendants. Id.
[2-3] Whether to grant a motion to amend the pleadings lies within the
court's sound discretion. Ape v. American Samoa Government, 25
A.S.R. 2d 106, 108 (Trial Div. 1993). In the exercise of its discretion,
T.C.R.C.P. Rule 15(a) requires the court to grant amendments "freely
when justice so requires." Leave to amend will, however, be denied
upon the finding of "such factors as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, and futility of amendment."
Vera v. Bush, 980 F.Supp. 255, 256 (S.D.Tex. 1997).
[4-6] Moreover, when a motion to amend concerns the addition of a
party, the movant bears the burden of demonstrating whether the third
party they seek to join satisfies the requirements of either T.C.R.C.P.
19(a) (necessary joinder) or T.C.R.C.P. 20 (permissive joinder). See
Inman v. Commissioner, 871 F.Supp. 1275, 1276 (E.D. Cal. 1994); 4
JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE, §
20.02(2)(a)(ii)(3d ed. 1999). ASCC argues that JCW, Inc. is a necessary
party to the litigation. It is unclear, however, whether JCW, Inc. actually
is. T.C.R.C.P. 19(a) defines a necessary party as a person whom "in his
absence complete relief cannot be accorded among those already
parties." Here, ASCC has not shown why failing to join JCW, Inc.
would frustrate recovery of complete relief, in the form of money
damages, they seek from PDBC. See Perrian v. O'Grady, 958 F.2d 192,
196 (7th Cir. 1992)(distinguishing between being a necessary party and
an indispensable party). That they have claims against JCW, Inc., in the
form of joint and several liability is of no avail. See Shon v. Mollerup
Moving & Storage Co., 24 A.S.R. 2d 50, 52 n.4 (Trial Div. 1993)(joint
130
and several liability does not make a party "indispensable" for purposes
of T.C.R.C.P. 19).
[7] Nonetheless, at the very least, we see no reason why JCW, Inc.
cannot be made a party under T.C.R.C.P. 20. Multiple parties may, but
need not be, joined if claims against them “(1) ‘aris[e] out of the same
transaction, occurrence, or series of transactions or occurrences’ and (2)
will present some ‘question of law or fact [in] common.’” 4 JAMES WM.
MOORE ET AL., MOORE'S FEDERAL PRACTICE, § 20.02(1)(a)(3d ed. 1999)
citing Fed. R. Civ. P. 20(a). Both of these prongs are satisfied here.
ASCC's claims against JCW, Inc. arise out of the same transaction,
namely the construction of the library. And they present issues of
common fact and law: whether JCW, Inc., as a partner, is liable for
damages arising out of an alleged breach of contract. See Acme Elec.
Corp. v. Sigma Instrument, Inc., 121 F.R.D. 26, 28 (S.D.N.Y. 1988).
Furthermore, PDBC has presented no substantial reason why they would
be prejudiced by the inclusion of JCW, Inc. In this respect, we do not
attribute any bad faith motives or tactics on ASCC's part in moving to
amend the pleadings nor have they unnecessarily delayed in making the
motion.
Finally, ASCC has not presented any different factual
allegations which may have complicated PDBC's defense. See Ryan,
Incorporate v. Vaka, 5 A.S.R. 2d 31, 32 n.1 (Trial Div. 1987).
Therefore, in the interest of justice, judicial economy, and finality, we
exercise our discretion in favor of ASCC's motion to amend the
pleadings to include JCW, Inc. The motion is granted.
It is so Ordered.
**********
131
AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO
for AASU and AOLOAU CATHOLIC CHOIR, Plaintiffs,
v.
NTV ELECTRONICS, MANAGER NING TAN,
KENNY AND HELEN YOUNG, and PROGRESSIVE INSURANCE
COMPANY, Defendants.
__________________________________
NTV ELECTRONICS and MANAGER NING TAN,
Cross-Claimants/Cross-Defendants,
v.
OXFORD/PROGRESSIVE GROUP, et al.,
Cross-Defendants/Cross-Claimants.
__________________________________
High Court of American Samoa
Trial Division
CA No. 74-00
December 24, 2002
[1] Although the rules of the courts of American Samoa are based on,
and in many instances identical to, federal court rules, American Samoa
courts are not bound to interpret their own rules in conformity with every
judicial gloss that has been written on the federal rules.
[2] The common practice of American Samoa courts is to consider their
orders—which often contain a recitation of the facts, procedural history,
and legal reasoning—as judgments for purposes of filing post-judgment
motions.
[3] The new trial motion and appellate deadlines may begin to run
despite the fact that no written judgment has issued.
[4] Where the court issues a judgment separate from its order, such is
made clear in the court’s order, and the time to move for a new trial, and
to appeal, begins running when the separate judgment is entered into the
docket.
132
[5] Where court clerk stamped order amending judgment and docketed
the same as court’s amended judgment pursuant to longstanding practice
of court, such filing did not violate T.C.R.C.P. 58 or T.C.R.C.P. 54(a)
and motion for reconsideration filed fourteen days later was properly
considered tardy and dismissed.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Cross-Claimants NTV Electronics and Manager Ning Tan,
Paul F. Miller
For Cross-Defendants Oxford/Progressive Group, Roy J.D.
Hall, Jr.
ORDER DISMISSING MOTION FOR RECONSIDERATION
On March 18, 2002, this court issued its opinion and order in favor of
cross-claimants NTV Electronics and Manger Ning Tan (“crossclaimants”). On September 16, 2002, we granted the motion for
reconsideration by cross-defendant Oxford/Progressive Group
(“Progressive”), and ordered entry of judgment in Progressive’s favor.
Cross-claimants filed a motion for reconsideration with respect to that
second decision on September 30, 2002, 14 days after the new judgment
had been entered. Progressive now moves to dismiss that motion
because it was filed more than 10 days after the judgment was
announced. A.S.C.A. § 43.0802. We agree.
Discussion
Cross-claimants argue in opposition to the motion to dismiss that in
making our decision of September 16, we did not set forth the judgment
in a separate document as required by T.C.R.C.P. 58. 37 They argue that
therefore the time to file their motion did not begin to toll; indeed, under
their theory, it has yet to start. Furthermore, they assert that the judgment
did not conform with the requirements of T.C.R.C.P. 54(a). 38 The scope
of these requirements are issues of first impression.
37
Rule 58 states in part, “Every judgment shall be set forth on a
separate document. A judgment is effective only when so set forth and
when entered as provided in 23 HCR.” (emphasis added)
38
Rule 54(a) states, “Definition; Form. ‘Judgment’ as used in these
rules includes a decree and any order from which an appeal lies. A
judgment shall not contain a recital of pleadings or the record of prior
proceedings.”
133
Under Fed. R. Civ. P. 58, on which our Rule 58 is based, the Supreme
Court has said the separate-document requirement must be “mechanically
applied.” United States v. Indrelunas, 411 U.S. 216, 221-222 (1973).
Yet the Supreme Court and various federal courts of appeal have
retreated somewhat from such a strict application. Lewis v. Emerson,
462 N.E.2d 295, 298 (Mass. 1984); see, e.g., Bankers Trust Co. v.
Mallis, 435 U.S. 381, 386-388 (1978) (separate document not needed
when parties waive the requirement); Hollywood v. City of Santa Maria,
886 F.2d. 1228, 1231-32 (9th Cir. 1989) (separate document not needed
for order denying motion for new trial); United States v. Clearfield State
Bank, 497 F.2d 256, 258-59 (10th Cir. 1974) (separate document only
necessary when uncertain whether final judgment has entered). The
softening of this requirement is justified as long as the result ensures that
the purpose of the rule is effectuated: “to eliminate uncertainty as to
whether and when a judgment has been rendered and entered.” 11
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE,
FEDERAL PRACTICE AND PROCEDURE § 2781 (2d ed. 1995); see F.R.C.P.
58 advisory committee’s note to 1963 Amendment.
[1] While T.C.R.C.P. 58 is virtually identical to the federal equivalent,
“this court is not bound to interpret its own rules in conformity with
every judicial gloss that has been written on the federal rules[.]” Wray v.
Wray, 5 A.S.R.2d 34, 45 (Trial Div. 1987). This is especially so since, at
the federal level, Congress promulgates the rules whereas in American
Samoa, the High Court “makes its own rules.” American Samoa Gov’t v.
Jue, 8 A.S.R.2d 120, 123 (Trial Div. 1988). Thus, the problem
sometimes arises where “verbatim importation” of the federal rules is
“inappropriate or impossible.” American Samoa Gov’t v. Falefatu, 17
A.S.R.2d 114, 120 (Trial Div. 1990). This being one of those situations,
we will follow the spirit, and not the letter, of the federal rules.
[2] The problems that plagued the federal system are not, and never
were, problems in American Samoa. For some time, it has been the
common practice of this court to consider its orders—which often
contain a recitation of the facts, procedural history, and legal reasoning—
as judgments. The clerk stamps a date on the order, which is then
entered in the docket. It is the ordinary understanding among those who
practice law here that our order is the judgment for purposes of filing all
post-judgment motions. If we were to accept cross-claimants’ argument,
then every case denying post-judgment relief because the motion was
untimely filed would have been wrongly decided. Such a result is
absurd.
[3] The most striking example of the non-application of the separate
document requirement can be found in Judicial Memorandum No. 2-87,
4 A.S.R.2d 172, 173 (1987). There, Chief Justice Rees, joined by then
134
Associate Justice Kruse, declared that even though a judgment must be in
writing to be effective (citing T.C.R.C.P. 58), under H.C.R. 23, the date
of entry of the judgment for all purposes, including filing a postjudgment motion, is the day a written judgment is filed or an oral
judgment is pronounced from the bench, whether or not the clerk dockets
the result. Id. at 173-74. This judicial declaration reconciled the
procedural requirements under H.C.R. 23 and A.S.C.A. § 43.0802 for
filing a new trial motion within 10 days after a judgment is announced.
Thus, the new trial motion and appellate deadlines may begin to run
despite the fact that no written judgment has issued, let alone a separate
one.
[4] We acknowledge that, from time to time, we may issue a judgment on
a separate document. In those cases, we make it clear in our order that a
judgment will enter separately. In that limited situation, the time to move
for a new trial and to appeal does begin to run when that separate
document is entered into the docket. Otherwise, we usually declare that
judgment will enter as set out in the order. This is how the order on the
first motion for reconsideration was styled in this case.
The order entered on September 16, 2002, as the judgment in this action
reads:
We grant Progressive’s motion for reconsideration, set aside
the judgment in favor of NTV and Tan, and reverse our
original decision.
NTV and Tan take nothing against
Progressive. A new judgment shall enter accordingly.
[5] The wording of the written judgment set forth in this order is
unequivocal. It satisfied any legitimate concerns about the certainty of
whether and when the judgment was issued and entered. The judgment
was clearly announced for the procedural filing purposes of post-trial
motions. Therefore, the time for filing a motion for reconsideration or a
new trial began to run the day the judgment in the order was entered, and
the deadline expired well before cross-claimants filed their motion.
Finally, T.C.R.C.P. 58 is to be read in conjunction with T.C.R.C.P.
54(a). For the same reasons we hold Rule 58 inapplicable in this case,
we hold cross-complainants’ reference to Rule 54(a) unpersuasive. Rule
54, like Rule 58, is intended to clarify whether and when a judgment has
entered. Because, however, local practice differs from the federal level,
we will also not needlessly incorporate the strict requirements of Rule
54(a). We further note that the judgment paragraph contained in the
order of September 16, 2002, does not recite any pleadings, but of
necessity refers to prior proceedings. It stands alone from the discussion
of the issues and, as a practical matter, does not of itself violate the spirit
135
of Rule 54(a)—or Rule 58. Cf. Development Bank of American Samoa
v. Ilalio, 5 A.S.R.2d 110, 112-113 (Trial Div. 1987) (Opinion which was
divided into sentences, paragraphs, and general areas of discussion was
sufficient to conform with T.C.R.C.P. 52 which requires findings of facts
to be stated separately from legal conclusions).
Order
Cross-claimants’ motion for reconsideration is dismissed.
It is so Ordered.
**********
HAVILA MAGALEI PURCELL, DUKE PURCELL,
and ISLAND BUILDERS, ARCHITECTS,
CONSULTANTS & ENGINEERS, Plaintiffs,
v.
SEUGOGO H.B. SCHIRMER, Director, Port Administration, W.T.
(BILL) ANDREW, Senior Engineer, Port Administration, FULTON
HOGAN HOLDINGS, LTD. (a New Zealand Corporation),
FULTON HOGAN, LTD., (an American Samoan Corporation),
MARK KEANE, Project Manager, Defendants.
High Court of American Samoa
Trial Division
CA No. 67-02
December 23, 2002
[1] Subject matter jurisdiction, rights of actions, and causes of action are
three very different concepts.
[2] Subject matter jurisdiction speaks to a court’s power to adjudicate a
case.
[3] Without jurisdiction, a court cannot proceed at all in any cause.
[4] A right of action grants a plaintiff the right to pursue a judicial
remedy.
136
[5] A cause of action refers to recognized legal rights upon which a
litigant bases his claim for relief.
[6] Federal courts do not have exclusive jurisdiction over federal civil
rights actions such as 42 U.S.C. § 1981, but instead have concurrent
jurisdiction.
[7] The Trial Division of the High Court is not a court of limited
jurisdiction; rather, it is a court of general jurisdiction with the power to
hear any matter not otherwise provided by statute.
[8] The Legislature of American Samoa has the power to define the
jurisdiction of the High Court as long as it is consistent with the laws and
treaties of the United States and American Samoa.
[9] A.S.C.A. § 3.0208 clearly grants the High Court jurisdiction to hear
claims brought under 42 U.S.C. § 1981.
[10] 42 U.S.C. § 1981 applies to United States Territories, including
American Samoa.
[11] The word “Territory” in a statute is presumed to apply to American
Samoa unless, had the acquisition of that insular dependency been
foreseen, Congress would have varied its comprehensive language so as
to exclude it from the operation of the act.
[12] 42 U.S.C. § 1981 applies against both private and state actors.
[13] 42 U.S.C. § 1981 protects rights arising both under the Thirteenth
and Fourteenth Amendments to the United States Constitution.
[14] The federal Constitution applies in American Samoa only insofar as
its tenets restate those fundamental limitations in favor of personal rights
that are the basis of all free government.
[15] Judicial review of a procurement decision lies in the first instance
before the Office of the Administrative Law Judge.
[16] Where went beyond alleging of noncompliance with administrative
regulations to state intentional racial discrimination, it did not belong at
the administrative level.
[17] 42 U.S.C. § 1981 creates an enforceable cause of action in
American Samoa for claims of intentional racial discrimination.
[18] 42 U.S.C. § 1981 does not apply to claims based on sex
137
discrimination.
[19] For actions under § 1981, a plaintiff must specifically plead
“intentional discrimination on account of race,” otherwise known as
“racial animus.”
[20] Claims of conspiracy to deprive someone of their constitutional
rights are properly brought under 42 U.S.C. § 1985(3), not 42 U.S.C. §
1981.
[21] In order to properly state a claim under 42 U.S.C. § 1985(3), a
complaint must allege that the defendants did (1) conspire (2) for the
purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and
immunities under the laws. It must then assert that one or more of the
conspirators (3) did, or caused to be done, any act in furtherance of the
object of the conspiracy, whereby another was (4a) injured in his person
or property or (4b) deprived of having and exercising any right or
privilege of a citizen of the United States.
[22] In order to facilitate a proper decision on the merits of the case, the
Court may allow a plaintiff leave to amend the pleadings where they are
legally deficient and when justice so requires.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiffs, Paul F. Miller
For Defendants Seugogo H.B. Schirmer and W.T. (Bill)
Andrew,
Fiti A. Sunia, Attorney General
For Defendants Fulton Hogan Holdings, Ltd. Fulton Hogan,
Ltd., Jennifer L. Joneson
ORDER GRANTING TIME TO FILE AMENDED COMPLAINT
CORRECTING PLEADING DEFICIENCIES
Before us is the motion of defendants Seugogo H.B. Schirmer
(“Seugogo”) and W.T. (Bill) Andrew (“Andrew”) to dismiss for failure
to state a claim under T.C.R.C.P. 12(b)(6). Defendants Fulton Hogan
Holdings, Ltd., Fulton Hogan, Ltd., and Mark Keane (“Keane”), later
joined in the motion.39 The legal issues involved are novel, and present
important questions concerning the status of certain civil rights in the
Territory.
39
We will refer to all defendants collectively as “the defendants.”
138
Background
Plaintiffs Havila Magalei Purcell and Duke Purcell are United States
Nationals and residents of American Samoa who own plaintiff Island
Builders Architects, Consultants & Engineers.40 They are also selfdescribed “minority contractors.” Seugogo and Andrew are both
employees of the American Samoa Government (“ASG”) in ASG’s
Department of Port Administration (“DPA”). Seugogo is the Director of
DPA. Fulton Hogan Holdings, Ltd., a New Zealand Corporation, and
Fulton Hogan, Ltd., an American Samoa Corporation, are both engaged
in business in the Territory.41 Keane is an agent of Fulton Hogan.
For purposes of this motion, we must assume the factual allegations to be
true.42 The dispute arose out of a contract awarded by ASG to Fulton
Hogan for a DPA capital improvement project at the Pago Pago
International Airport. The plaintiffs claim that they were unlawfully
prevented from bidding on portions of the contract. They brought suit
against the defendants, claiming the defendants acted as part of a civil
conspiracy to deny the plaintiffs their constitutionally protected rights to
make and enforce contracts on account of their race and sex as codified
under 42 U.S.C.A. § 1981.43 They also brought suit against Seugogo and
40
We will refer to all plaintiffs collectively as “the plaintiffs.”
We will refer to them collectively as “Fulton Hogan”.
42
While Seugogo and Andrew argue that we do not have jurisdiction in
this case, their motion is one for failure to state a claim under T.C.R.C.P.
12(b)(6). Lack of jurisdiction is governed by T.C.R.C.P. 12(b)(1). To
be fair, there is some overlap between jurisdiction and a right of action in
this case. “Where the defendant’s challenge to the court’s jurisdiction is
also a challenge to the existence of a [right] of action, the proper course
of action . . . is to find that jurisdiction exists and deal with the objections
as a direct attack on the merits of the plaintiff’s case.” Williamson v.
Tucker, 645 F.2d 404, 415 (5th Cir. 1981). This also benefits a plaintiff
in that under the law of 12(b)(6), we must consider the allegations in the
complaint as true. Id. at 412. We apply this standard now because we do
have jurisdiction to hear this suit. See infra II.B.
43
Section 1981, entitled Equal rights under the law, provides in relevant
part:
(a) Statement of equal rights
All person within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens . . .
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce
contracts” includes the making, performance, modification and
41
139
Andrew individually, acting under color of law as employees of ASG,
alleging the same deprivations of rights. They assert that our jurisdiction
over the suit is found in A.S.C.A. § 3.0208. The defendants counter that
the plaintiffs do not have a legally cognizable claim or, at the very least,
that they have not properly pled the claim of civil conspiracy.
Discussion
With that relatively simple background, we proceed to the wholly
complex question of whether § 1981 is applicable in American Samoa
and, if so, to what extent.
A. Legal Framework
The plaintiffs and the defendants have misconstrued the differences
between subject matter jurisdiction, rights of action, and causes of action
as these terms relate to this case. The plaintiffs began their pleadings by
noting that their action was brought pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); it
seems they were relying on Bivens as granting them the right of action for
their suit. The defendants counter that Bivens “recognized a new basis of
federal court jurisdiction, namely, a federal private cause of action that
can arise under the Fourth Amendment.” Therefore, because the
plaintiff’s allegations did not implicate the Fourth Amendment, and
because a Bivens claim is strictly a cause of action available in the
federal courts, they argue we lack jurisdiction to hear this suit. Neither
contention is exactly right.
[1-3] Subject matter jurisdiction, rights of actions, and causes of action
are three very different concepts. Subject matter jurisdiction speaks to a
court’s “power to adjudicate a case.” Steel Co. v. Citizens for Better
Env., 523 U.S. 83, 89 (1998) (emphasis in original); see Merrell Dow
Pharmaceuticals v. Thompson, 478 U.S. 804, 807 (1986). Without
jurisdiction, a court “cannot proceed at all in any cause.” Steel Co., 523
U.S. at 94, quoting Ex parte McCardle, 7 Wall 506, 514 (1869). But
whether a court has the power to hear a case is different from whether a
plaintiff has a right to bring the case or is claiming a legally recognized
right. See Steel Co., 523 U.S. at 89, citing Bell v. Hood, 327 U.S. 678,
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship.
(c) Protection against impairment
The rights protected by this section are protected against
impairment by nongovernmental discrimination and
impairment under color of State law.
140
682 (1946) (a court can have subject matter jurisdiction over a claim yet
not be able to grant the relief sought because no right or cause of action
exists).
[4-5] Courts often confuse the terms “right of action” and “cause of
action.” See generally Davis v. Passman, 442 U.S. 228, 237-244 (1979)
(discussing the various applications of a “cause of action”); 1 AM. JUR.
2d Actions § 2 (2d ed. 1994). A right of action grants a plaintiff “the
right to pursue a judicial remedy.” 1 AM. JUR. 2d Actions § 2; Davis, 442
U.S. at 239 (right of action “is employed specifically to determine who
may judicially enforce the statutory [or Constitutional] rights and
obligations.”); see Bivens, (finding United States Constitution implicitly
allows citizen to bring suit for violations of Fourth Amendment rights);
42 U.S.C.A. § 1983 (statutory right of action for deprivation of
constitutional rights under color of law). On the other hand, “a cause of
action is based on the substantive law of the legal liability.” 1 AM. JUR.
2d Actions § 2. That is, a cause of action refers to “recognized legal
rights upon which a litigant bases his claim for relief.” Davis, 442 U.S.
at 237, citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S.
682, 693 (1949).
B. Subject Matter Jurisdiction
As noted, simply because a right of action may exist does not mean we
automatically have jurisdiction to hear the case. We must first make that
determination. See supra note 4.
[6] There is a substantial amount of case law, at the federal level,
discussing the issue of subject matter jurisdiction in civil rights cases.
Jurisdiction to hear suits arising under § 1981 (and other civil rights
statutes) is usually based on 28 U.S.C.A. §§ 1343, 1331. See
Mummelthie v. City of Mason City, Iowa, 873 F.Supp. 1293, 1304 (N.D.
Iowa 1995); Tripati v. U.S.I.N.S., 784 F.2d 345, 346 n.1 (10th Cir.
1986). That is not to say that state or territorial courts cannot entertain
these types of suits. Federal courts do not have exclusive jurisdiction in
this area. Instead, they have concurrent jurisdiction. See DeHorney v.
Bank of America Nat. Trust & Sav. Ass’n, 879 F.2d 459, 463 (9th Cir.
1989); 15 AM. JUR. 2d Civil Rights § 33 (2d ed. 1994); see also Maine v.
Thiboutot, 448 U.S. 1, 3 n.1 (1980) (state courts can hear § 1983 claims).
Therefore, we must evaluate our own jurisdictional grant to determine
whether the High Court is a proper forum for § 1981 claims.
[7-9] Unlike federal courts, the Trial Division of the High Court is not a
court of limited jurisdiction; rather, it is “a court of general jurisdiction
with the power to hear any matter not otherwise provided by statute.”
A.S.C.A. § 3.0208 (emphasis added). This broad grant expanding our
141
jurisdiction was added in 1979. P.L. 16-28 (1979). The statute was
passed by the Legislature as a valid exercise of its power to define the
High Court’s jurisdiction. See generally Swift v. Trial Division, 4 A.S.R.
983, 986-988 (1975) (noting that Congress has delegated, through the
Executive, to our Legislature the power to define our jurisdiction as long
as it is consistent with the laws and treaties of the United States and
American Samoa); Meaamaile v. American Samoa, 550 F. Supp. 1227,
1235-36 (D. Haw. 1982). While it may have been a close question
before that amendment, we have no doubt that § 3.0208 clearly grants us
the power, i.e. the jurisdiction, now to hear claims brought under § 1981.
See Meaamaile, 550 F. Supp. at 1235-36 (assuming High Court can
entertain § 1981 suits).
C. Right of Action under § 1981
Having determined we have jurisdiction, we must decide whether § 1981
creates a private right of action so that the plaintiffs may enforce their
claim.
Bivens arose out of a citizen suit against federal agents for violations of
Bivens’ constitutional rights under the Fourth Amendment of the United
States Constitution. Congress had created a right of action for such a suit
arising against state (and territorial) agents, see 42 U.S.C.A. § 1983, but
had not created one for suits against federal agents. Bivens, 403 U.S. at
429 (Black, J., dissenting).
The Court in Bivens found that
notwithstanding the lack of an explicit grant by Congress, the United
States Constitution provided for an implied right of action in federal
courts to enforce Fourth Amendment violations by federal agents. 44
Bivens, 403 U.S. at 400-02 (Harlan, J., concurring).
Defendants are correct, then, that Bivens has no application to this case.
A Bivens action is applicable only in federal courts. The plaintiffs’
reference to Bivens was thus misplaced; but more importantly, it was
unnecessary. Section 1981 itself creates a right of action, explicitly
created by Congress, for the enforcement of certain civil rights
violations. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989);
Runyon v. McCrary, 427 U.S. 160 (1976); Giles v. Equal Employment
Opportunity Com’n, 520 F.Supp. 1198, 1199 (1981) (Section 1981
44
Implied rights of actions have also been found under the United States
Constitution, Fifth Amendment, Passman, 442 U.S. 228, and Eight
Amendment, Carlson v. Green, 446 U.S. 13 (1980). See Bush v. Lucas,
426 U.S. 367, 374 (1983)(noting that in some cases, the United States
“Constitution itself supports a private [right] of action for damages
against a federal official.”)
142
“provide[s] a remedy in cases in which jurisdiction is present.”).
[10-11] Furthermore, on its face, § 1981 applies to United States
Territories. 42 U.S.C. § 1981 (“All persons . . . shall have the same right
in every State and Territory . . . .”). We have no doubt that, even though
§ 1981 was passed before American Samoa became a Territory of the
United States, by using such clear language, Congress intended that §
1981 apply to this Territory.
The word “Territory” in a statute is
presumed to apply to American Samoa unless, had “the acquisition of
that insular dependency [] been foreseen, Congress would have so varied
its comprehensive language as to exclude it from the operation of the
act.” United States v. Standard Oil Co., 404 U.S. 558, 559 (1972); see
also Ferstle v. American Samoa Government, 4 A.S.R.2d 160, 162-63
(Trial Div. 1987) (Section 1983, on its face, applies to the American
Samoa); Tuivai v. Suiava, 2 A.S.R.2d 35, 36 (Trial Div. 1984) (same);
Fleming v. Department of Public Safety, 837 F.2d 401, 404-405 (9th cir.
1988) (Sections 1981 and 1983 applies to Northern Mariana Islands);
Bunyan v. Camacho, 770 F.2d 773 (9th Cir. 1985) (implying § 1983
applies to Territory of Guam); but see Temengil v. Trust Territory of
Pacific Islands, 881 F.2d 647, 651-652 (9th Cir. 1989) (Sections 1981
and 1983 do not apply to the Trust Territory of the Pacific Islands).
[12] This right of action clearly extends to private actors. Patterson, 491
U.S. at 171-175; Runyon, 427 U.S. at 168-175. The portion of the suit
against Fulton Hogan and Keane is properly before us. Similarly, § 1981
creates a right of action for lawsuits against state actors. See Federation
of African Amer. Contractors v. City of Oakland, 96 F.3d 1204, 12101214 (9th Cir. 1996).45 Therefore, the portion of this suit against
Seugogo and Andrew, acting under color of law, is also properly before
us.
45
In Jett v. Dallas Ind. School Dist, 491 U.S. 701 (1989), the Supreme
Court held that while state actors could violate § 1981, it did not create a
right of action to sue; instead, § 1983 created the exclusive right of action
in that situation. Id. at 731. Subsequently, § 1981 was amended to add
subsections (b) and (c). Civil Rights Act of 1991, Pub.L. 102-166 § 101.
In effect, the new amendments overruled this holding of Jett. See
Federation, 96 F.3d at 1210-1214 (finding that 1991 amendment to §
1981 created right of action against state actors), Dennis v. County of
Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995); Philippeaux v. North
Central Bronx Hosp., 871 F.Supp 640, 653-56 (S.D.N.Y. 1994). Jett
also held that § 1983 provides the exclusive right of action for suits
against municipalities. The appeals courts are split as to whether the
amendments overruled this aspect of Jett. Compare Federation, 96 F.3d
at 1214-15, with Philippeaux, 871 F.Supp at 654-56. This issue is not
before us and thus we need not resolve it.
143
D. Cause of Action
We now come to the crux of this case—what is the plaintiffs’ cause of
action? That is, do they have a legally recognizable claim in American
Samoa for the conduct they now complain was committed?
[13] Section 1981 protects rights arising both under the Thirteenth and
Fourteenth Amendments of the United States Constitution.46 See Jett v.
Dallas Ind. School Dist., 491 U.S. 701, 722 (1989) (plurality opinion);
Patterson, 491 U.S. at 197-199 (Brennan, J. concurring and dissenting in
part); Runyon, 427 U.S. at 190 (Stevens, J., concurring); Vietnamese,
Etc. v. Knights of K.K.K., 518 F. Supp. 993, 1008 (S.D. Tex. 1981). It
was passed, in part, “under Congress’ Thirteenth Amendment power to
identify and legislate against the badges and incidents of slavery.”
Patterson, 491 U.S. at 197 (Brennan, J. concurring and dissenting in
part). It also derived, however, from the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution and was
“intended to secure ‘the full and equal benefit of all laws and proceedings
for the security of persons and property . . . .’” McLaughlin v. Florida,
379 U.S. 184, 193 (1964); see also Runyon, 427 U.S. at 195-205 (White,
J., dissenting) (arguing § 1981 was passed solely under Congress’
Fourteenth Amendment powers).
The problem facing us is that this court has never determined whether or
not the Thirteenth Amendment of the United States Constitution, its
implementing federal law, and the protections they afford, have been
incorporated into the law of American Samoa. Additionally, we have
said that “[t]he extent to which the equal protection clause of the
Fourteenth Amendment applies in the territory is unclear[.]” Macomber
v. American Samoa Gov’t, 12 A.S.R.2d 29, 30 (Trial Div. 1989); see
Banks v. American Samoa Gov’t, 4 A.S.R.2d 113, 123-28 (Trial Div.
1987). The resolution of these uncertainties is paramount to the outcome
of the decision on the present motion; if the rights are incorporated, then
§ 1981 is enforceable in American Samoa and the plaintiffs have claimed
a valid cause of action.
46
The Thirteenth Amendment states in part, “Neither slavery nor
involuntary servitude except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United States, or
any place subject to their jurisdiction.”
The Fourteenth Amendment states in part, “No State shall . . . deny to
any person within its jurisdiction the equal protection of the laws.”
144
[14] The test for incorporation has been stated by this court as follows:
“the federal Constitution applies here only insofar as its tenets restate
‘those fundamental limitations in favor of personal rights’ that are ‘the
basis of all free government[.]’” American Samoa Gov’t v. Falefatu, 17
A.S.R.2d 114, 129 n.9 (Trial Div. 1990), quoting Dorr v. United States,
195 U.S. 138, 146 (1922). It has been stated somewhat differently at the
federal appellate level: “whether the claimed right is one which would be
impractical or anomalous in [the Territory].” Wabol v. Villacrusis, 958
F.2d 1450, 1461 (9th Cir. 1990); see King v. Morton, 520 F.2d 1140,
1147 (D.C. Cir. 1975); STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED
STATES TERRITORIES AND AFFILIATED JURISDICTIONS §§ 10.5, 10.7 (1st
ed. 1995) (commending this approach). We will address both tests.
It can hardly be doubted that the prohibition against slavery,
and against its badges and incidents, is a fundamental right of
any free society. In enforcing the Thirteenth Amendment,
[Congress] undertook to wipe out these burdens and
disabilities, the necessary incidents of slavery, constituting its
substance and visible form; and to secure to all citizens of
every race and color, and without regard to previous servitude,
those fundamental rights which are the essence of civil
freedom, namely: the same right to make and enforce
contracts, to sue, be parties, [and] give evidence . . . as is
enjoyed by white citizens . . . [In passing § 1981, Congress
acted] only to declare and vindicate those fundamental rights
which appertain to the essence of citizenship, and the
enjoyment or deprivation of which constitutes the essential
distinction between freedom and slavery.”
Civil Rights Cases, 109 U.S. 3, 22 (1883) (emphasis added); see Jones v.
Alfred H. Mayor Co., 392 U.S. 409, 440-41 (1968). Given that these
rights are so fundamental, it is no surprise that they are safeguarded by
our own Constitution. REV. CONST. OF AM. SAM. art. I, § 10 (“Neither
slavery, nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist in American
Samoa.”); see Banks, 4 A.S.R.2d at 125, n.5 (when determining whether
or not a right is fundamental, it is relevant whether or not our own
Constitution contains a similar clause).
As for the interplay of the Equal Protection Clause, we see no reason
why the fundamental rights arising out of the Thirteenth Amendment
would be any less fundamental if they derived from the Fourteenth
Amendment. It cannot be said, for example, that the rights under § 1981
are incorporated into American Samoa only to the extent that they
abolish the incidents and badges of slavery but not to the extent that they
provide for the equal protection of laws. It is a distinction without a
145
difference.
Furthermore, it would not be impractical or anomalous to apply these
rights in the Territory. Section 1981 speaks to intentional or purposeful
racial discrimination. Albert v. Carovano, 851 F.2d 561, 571-572 (2nd
Cir. 1988) and cases cited. No part of the laws or culture of American
Samoa promotes or relies on racial classifications in terms of
employment, contracts, or access to the courts—all of which fall under
the ambit of § 1981. Banks is not inapposite.
In Banks, albeit in dicta, this court upheld the residential hiring
preference, codified in A.S.C.A. § 7.0205, against constitutional attack.
We noted that to the extent that the preferences conflicted with the Equal
Protection Clause, those rights were not incorporated into American
Samoa. Banks, 4 A.S.R.2d at 121-128. This court was careful to state,
however, that the “American Samoa preference is not a racial
classification at all . . . . Although the preference has an obvious racial
effect . . . [it] is essentially a preference for permanent residents rather
than for ethnic Samoans . . . .” Id. at 128; see also A.S.C.A. 12.0210
(Local Preference statute for government contracts). In making that
determination, the court relied in part on Appendix A to A.S.A.C. §
4.1108, the implementing regulations for A.S.C.A. § 7.0205. The
Appendix, still in force, contains a policy statement that states, inter alia,
“[i]t is the policy of the ASG to provide and promote equal opportunity
in employment to people without discrimination because of race, creed,
color, [or] national origin . . . .” Appendix A to A.S.A.C. § 4.1108
(emphasis added); see A.S.A.C. §§ 4.1101-.1108. Clearly this is
evidence that some of the rights encompassed by § 1981 have already
been embraced by ASG. Moreover, it is evidence that applying § 1981
to American Samoa, because it protects fundamental rights arising out of
the Thirteenth and Fourteenth Amendments of the United States
Constitution, would not be inconsistent or anomalous with the laws and
customs of American Samoa.47
47
Nothing in this opinion should be interpreted as overruling or altering
at all the current state of our land alienation laws. We are cognizant that
42 U.S.C. § 1982, which took root also from the Thirteenth and
Fourteenth Amendments, seemingly conflicts with the explicit racial
requirements for land ownership codified in A.S.C.A. §§ 37.0201-.0230.
While the right to land ownership may be a fundamental right, Congress
has “carefully preserve[d] for the Samoan people the exclusive right to
determine by local statute how their culture and land tenure system will
be regulated.” Craddick Development Inc. v. Craddick, AP No. 14-95,
pg. 18 (July 22, 1998) (Ward, J., concurring). At the very least,
incorporation of this specific fundamental right would be impractical and
anomalous in American Samoa. See Wabol, 958 F.2d at 1461-62
146
[15-18] The defendants are right that judicial review of a procurement
decision lies in the first instance before the Office of the Administrative
Law Judge. See A.S.C.A. § 4.0604(e)-(g); see also A.S.A.C. § 10.0282.
But the plaintiffs’ complaint goes beyond allegations of noncompliance
with administrative regulations; the complaint alleges intentional racial
discrimination, a claim that does not belong at the administrative level.
Therefore, we conclude that § 1981 creates a cause of action enforceable
here in American Samoa, for claims of intentional racial discrimination.
Section 1981 does not, however, apply to claims based on sex
discrimination. See Runyon, 427 U.S. at 167; Taylor v. Shell Offshore,
Inc., 700 F. Supp 314, 315 (M.D. La. 1988). To the extent that any of
the claims here are based on sexual discrimination, they are dismissed.
E. Pleadings
[19] Notwithstanding the foregoing discussion, the plaintiffs’ pleadings
are still deficient. For actions under § 1981, a plaintiff must specifically
plead “intentional discrimination on account of race,” otherwise known
as “racial animus.” Evans v. McKay, 869 F.2d 1341, 1344, 1345 n.3 (9th
cir. 1989). While the plaintiffs have alleged intentional discrimination,
they have not pleaded any facts that would tend to show the actions by
the defendants were racially motivated. See Yusuf v. Vasasr College, 827
F. Supp. 952, 954-56 (S.D.N.Y. 1993) (causal link between defendant’s
conduct and plaintiff’s race too conclusory). Overt acts coupled with
some direct evidence, such as, for example, racial slurs, would suffice.
Evans, 869 F.2d at 1345. But the plaintiffs have not pled any such direct
evidence.
[20-21] Furthermore, the plaintiffs’ claim that the defendants conspired
to deprive them of their constitutional rights is likewise defective.
Claims of conspiracy to deprive someone of their rights are properly
brought under 42 U.S.C. 1985(3).48
(applying analysis and upholding land alienation restrictions of the
Northern Mariana Islands).
48
Section 1985(3) prohibits, “two or more persons in any State or
Territory [from] conspir[ing] . . . for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the
laws[.]” This section creates a right of action to enforce existing federal
laws, such as § 1981. See Great American S. & L. Assn. v. Novotny, 442
U.S. 366, 383 (1979) (Stevens, J., concurring) (private conspiracies to
deprive individuals of their right to be free from the badges of slavery are
actionable under § 1985(3)); Nieto v. United Auto Workers Local 598,
147
[A] complaint must allege that the defendants did (1) ‘conspire
. . .’ (2) ‘for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws.’ It must then assert that one or more of the
conspirators (3) did, or caused to be done, ‘any act in
furtherance of the object of [the] conspiracy,’ whereby another
was (4a) ‘injured in his person or property’ or (4b) ‘deprived
of having and exercising any right or privilege of a citizen of
the United States.’”
Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996), quoting Griffin
v. Breckenridge, 403 U.S. 88, 102-02 (1971).
[22] Nonetheless, in order to “facilitate a proper decision on the merits of
the case,” Thomsen v. Bank of Hawaii, 28 A.S.R.2d 86, 87 (Trial Div.
1995), or at the very least, to assure that dismissal is based on the failed
factual allegations and not inartful pleading, we are allowing the
plaintiffs leave to amend the pleadings to conform with this opinion.
T.C.R.C.P. 15(a) (party may amend pleadings by leave of court when
justice so requires).
Order
The plaintiffs shall have 30 days to file an amended complaint that
corrects the deficiencies in the present complaint. If the plaintiffs fail to
adequately correct the deficiencies in the complaint within this time
period, the motion to dismiss will be granted.
It is so Ordered.
***********
672 F. Supp. 987, 991-92 (E.D. Mich. 1987).
148
ESTATE OF ROSE F.S. TURNER, Deceased.
High Court of American Samoa
Trial Division
PR No. 11-01
December 10, 2002
[1] Damages for the breach of a lease are determined by the general
principles reflected in the contract.
[2] American Samoa statutes unequivocally exclude communal land from
testamentary devise, intestate succession, and estate administration.
[3] Communal land is the land ownership concept at the very core of the
Samoan land tenure system.
[4] Communal land tenure precludes fee simple ownership in favor of
extended family control over land, under the occupancy and use
directions of the family’s sa`o.
[5] Leases of communal land may not wholly conform to the traditional
occupancy and use of communal land. However, they are statutorily
authorized.
[6] Once a leasehold is created, the parties to the lease, and their
executors, administrators, successors and assigns are entitled to have the
contractual terms of the lease respected and upheld.
[7] The American Samoa Government’s constitutional duty to protect
communal lands from alienation pertains to alienation from American
Samoans to foreigners.
[8] Were estate’s attorney had asked for attorney’s fees in defending
estate from objection to passing of leasehold interest, purportedly
frivolous and made in bad faith, Court was without authority to award
such.
[9] Where individual, acting as objector in probate action, had actually
raised objection contrary to his authority as objector, said attorney lacked
standing to object and reasonable attorney’s fees were properly awarded
to the estate for the unnecessary expense caused by the objection.
149
Before RICHMOND, Associate Justice, and ATIULAGI, Associate
Judge.
Counsel: For Administrator, David P. Vargas
For Objector, Tautai A.F. Faalevao, Pro Se
ORDER DENYING PETITION AGAINST
ESTATE AND ADMINISTRATOR OF ESTATE
On October 15, 2002, objector Tautai A.F. Faalevao (“Tautai”)
petitioned the court to exclude a certain parcel of the Fano family’s
communal land from the estate of the intestate decedent, Rose F.S.
Turner. Tautai file his petition as a blood member representing the
interest of the Tautai clan of the Fano family.
Tautai’s petition was first heard on November 18, 2002, the same day
scheduled for the hearing on the motion of administrator Rene L.F.
Clemens (“Clemens”) for approval of his final account and reporting and
for distribution of the estate. The court continued the hearing until
November 25, 2002, to afford Tautai and Clemens the opportunity to
further research and file briefs on the objection issue.
The issue is over Clemens’ inclusion in the inventory of the estate’s
assets the decedent’s leasehold interest in the Fano family’s communal
land. We hold that the leasehold is an asset of the estate.
Discussion
The leased land is a portion of communal land, known as “Matautu Ridge
at Tulutulu,” containing approximately 4.755 acres, plus a 40 foot right
of way for ingress and egress, containing approximately 1.065 acres, in
the Village of Faga`alu, American Samoa. The lease was executed on
July 19, 1990, approved by the Governor, as required by A.S.C.A. §
37.0221(a), on December 7, 1990, and recorded with the Territorial
Registrar on December 10, 1990. The lease was signed by Fano Salilo,
the Fano family’s sa`o, for himself and on behalf of the Fano family, as
the lessor, and by the decedent, as the lessee. Both parties committed
“their executors, administrators, successors and assigns” to perform the
lease. The term is for 55 years, the maximum period permitted under
A.S.C.A. § 37.0221(a). The rent is $1.00 per year.
Tautai claims that the parties entered into the lease to provide collateral
for bank financing, a common purpose of communal land leases, and
argues that in the existing absence of any outstanding mortgage, the lease
expired upon the decedent’s death. In this regard, Tautai also points to
paragraph 9 of the lease that provides options for lease termination upon
150
full satisfaction of a mortgage debt. He asserts that under the
circumstances, termination upon the decedent’s death is consistent with
Samoan custom for the use of family communal land.
[1] Fundamentally, the lease provided the decedent the right to long-term
occupancy and use of the lease premises. The mortgage financing
authorization is simply permissive and a secondary purpose. Both
parties’ rights and responsibilities under the lease terms are contractual.
Cf. Lindgren v. Betham, 20 A.S.R.2d 98, 101 (App. Div. 1990)
(Damages for breach of lease are determined by general principles of
contract). Both parties clearly intended those rights and obligations to be
binding on their executors, administrators, successors, and assigns. On a
contractual basis alone, therefore, the leasehold is properly included in
the decedent’s estate, and her heirs are entitled to succeed as lessees
under the lease, under the laws of intestate succession. See Hunkin v.
Grisard, 13 A.S.R.2d 38, 40 (Trial Div. 1989).
[2-4] Tautai correctly points out that territorial statutes unequivocally
exclude communal land from testamentary devise, intestate succession,
and estate administration. A.S.C.A. §§ 40.0106, 40.0206, and 40.0302.
Communal land is the land ownership concept at the very core of the
Samoan land tenure system. As an alternative to the prevailing means of
land ownership in fee simple by individuals and other legal entities
generally prevailing in United States jurisdictions, communal land tenure
precludes fee simple ownership in favor of extended family control over
land, under the occupancy and use directions of the family’s sa`o (“head
chief”).
[5-6] Tautai’s argument, however, widely misses the mark. The concept
of communal land ownership deals with the land itself, not with lesser
interests, such as leasehold, easements, and licenses, having readily
identifiable rights and obligations of a contractual nature. As Tautai
asserts, leases of communal land may not wholly conform to traditional
occupancy and use of communal land, unlike the more customary sa`o
assignment to family members of occupancy and use of areas within the
family’s communal lands. However, leases of communal land are
statutorily authorized. A.S.C.A. § 37.0221. Moreover, the statute does
not prevent either members or nonmembers of the family from becoming
lessees of the family’s communal lands. Once the leasehold is created,
the parties to the lease, and their executors, administrators, successors
and assigns, are entitled to have the contractual terms of the lease
respected and upheld. See Miller & Desatnik Management Co. v.
Bullock, 221 Cal. App. 3rd Supp. 13, 17 (1990) (fixed termed tenancy
not terminated by death); RESTATEMENT (SECOND) OF PROPERTY § 1.5
cmt. F (same). This result is not fatal in any sense to the integrity of the
communal land system. The underlying land itself does not lose its
151
character as communal land.
[7] The family, in this case the Fano family, retains the land as the
family’s communal land. Contrary to Tautai’s contention, our holding is
not violative of the American Samoa Government’s constitutional duty to
protect communal lands from alienation. Timu v. McMoore, AP No. 1499, slip op. at 5 (Appellate Div. October 3, 2002). The duty pertains to
alienation from American Samoans to foreigners. Id.
[8-9] Clemens requests an award of attorney’s fees against Tautai for his
failure to provide any genuine legal authority for excluding the leasehold
from the estate and has caused the estate unnecessary expense. In other
words, the objection is frivolous and not made in good faith. We would
be inclined to agree but for the absence of any High Court decision
directly on point and the need to clearly address it. However, Fano’s
affidavit states that Tautai’s authority to represent him and the Fano
family was limited to ensuring that communal land was not included in
the estate and that Fano wanted the leasehold to pass on to the decedent’s
heirs. Fano’s statement puts in question Tautai’s standing to take on the
objector’s role and certainly establishes that Tautai exceeded his
authority, whether in his own right or on Fano’s behalf, by challenging
inclusion of the leasehold in the estate contrary to Fano’s direction.
Tautai made no effort to contradict Fano’s statement during the hearing.
Under these circumstances, an award of reasonable attorney’s fees, which
we assess at $500.00, to offset the unnecessary expense Tautai’s action
has caused the estate, is in order.
Order
1. The lease of a portion of the Fano family’s land known as “Matautu
Ridge at Tulutulu” to the decedent is included in the decedent’s estate.
2. Tautai shall pay to Clemens, the administrator of the decedent’s
estate, $500.00 as reasonable attorney’s fees to offset the unnecessary
expense of defending against Tautai’s inappropriate objection to
inclusion of the lease in the estate.
It is so Ordered.
**********
152
FAUMUINA SUAFA`I SATELE, Plaintiff,
v.
TAUTOLO GAOSA and AMERICAN SAMOA POWER
AUTHORITY, Defendants.
High Court of American Samoa
Land and Titles Division
LT No. 09-95
LT No. 31-95
March 18, 2002
[1] Where two families mutually, peacefully and harmoniously, occupied
and used land in a manner so irregularly intermingled that any areas of
separately owned land could not be defined, Court determined that land
could not be registered as only one family’s communal land.
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge,
and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant Tautolo Gaosa, Arthur Ripley, Jr.
For Defendant Am. Samoa Power Authority, Roy J.D. Hall, Jr.
ORDER DENYING MOTION FOR RECONSIDERATION OR NEW
TRIAL, CONTINUING STAY OF RENT PAYMENTS, AND
SETTING ASIDE TITLE REGISTRATION
I. Motions for Reconsideration or New Trial and Stay of Judgment
On December 13, 2001, defendant Tautolo Gaosa (“Tautolo”) timely
moved for reconsideration or new trial with respect to the court’s opinion
and ordered entered on November 30, 2001. Tautolo also moved to stay
execution of the judgment, pending the outcome of the first motion and
the existing and any further appeal of this action. The court heard the
motions on January 25, 2001. All three counsel were present.
During the hearing, we granted by bench order the motion to stay
execution of the judgment with respect to payment by defendant
American Samoa Power Authority (“ASPA”) of the rentals for its leases
of the well site and waste disposal site on the total land at issue. We
have now considered the issues raised by Tautolo’s motion for
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reconsideration or new trial. Tautolo’s concerns are without merit. This
motion will therefore be denied. However, the present stay of execution
of the judgment will remain in effect pending the existing appeal and any
subsequent appeal. We will also address two other matters.
II. Ownership of Land “Lepue”
We need to clarify our decisions regarding ownership of the land called
“Lepue.” For purposes of the discussion of this and the second matter,
we will refer to three parcels of land by name: “Agaoleatu,” “Lepue,” and
“Anaoleatu.” “Agaoleatu” consists of approximately 6.301 acres at the
western end of the total land at issue. ASPA’s well site is within
“Agaoleatu” but outside of the portion of this parcel now determined, as
noted below, to be the Faumuina family’s communal land. “Lepue”
embraces approximately 3.291 acres immediately east of “Agaoleatu.”
Part of the disposal site is within “Lepue.” “Anaoleatu” covers
approximately 23.333 acres and encompasses the entire land in dispute,
including both “Agaoleatu” and “Lepue.” The disposal site is entirely
within “Anaoleatu.”
Plaintiff Faumuina Safa`i Satele (“Faumuina”) offered to register the title
to both “Agaoleatu” and “Lepue” as the Faumuina family’s communal
land. Both offers went through the formal registration process, which
generated Tautolo’s objections and claim to “Anaoleatu.” The
unresolved title disputes to “Agaoleatu” and “Lepue” were sent to this
court for judicial determination. Though surveyed as of the trial in July
2000, Tautolo had not offered to register the title to “Anaoleatu” as
Tautolo family’s communal land.
Our original decision entered on August 3, 2000, expressly adjudicated
title to “Agaoleatu” in Tautolo’s favor. We directed the Territorial
Registrar to register the title to “Agaoleatu” as the Tautolo family’s
communal land. We also held that as between Faumuina and Tautolo,
the portion of “Anaoleatu” outside of “Agaoleatu” was also the Tautolo
family’s communal land. This portion also encompasses “Lepue.”
However, because Tautolo had not offered “Anaoleatu” for registration,
we advised the parties that Tautolo must offer the area in “Anaoleatu”
outside of “Agaoleatu” for registration in order to provide notice to other
potential claimants before the title to this area could be adjudicated.
“Lepue” is located within “Anaoleatu,” and though properly before us for
title determination, we clearly, in hindsight, but inadvertently overlooked
definitively deciding this title issue, except implicitly with respect to
Faumuina and Tautolo, in our August 3, 2000 decision.
We modified our decision on ownership of “Agaoleatu” in the order of
November 6, 2000, partially granting reconsideration, to hold that a
154
portion of the western side of “Agaoleatu” is the Faumuina family’s
communal land. This modification was confirmed in our decision of
November 30, 2001.
In the decision of November 30, 2001, we also modified our findings
with respect to the title to “Anaoleatu” outside of the portion in
“Agaoleatu” held to be the Faumuina family’s communal land, deciding
that we could not determine by a preponderance of the evidence
presented the titleholder(s) to this entire area as between Faumuina and
Tautolo, and for that matter any other still unidentified claimants not yet
before the court. This change was based on out inspection of the land
and other abundantly clear evidence showing that, for many years, the
Tautolo family and Fa`i family, a subfamily of the extended Faumuina
family, had mutually, peacefully and harmoniously, occupied and used
“Anaoleatu,” outside of the portion of “Agaoleatu” now recognized as
the Faumuina family’s communal land, and in a manner so irregularly
intermingled that any areas of separately owned land by the Tautolo
family and, as the case may be, the Fa`i family or Faumuina family could
not be defined.
[1] “Lepue” is within “Anaoleatu” outside of the portion of “Agaoleatu”
owned by the Faumuina family as communal land. Thus, under the
modification now in effect, we have still implicitly held that “Lepue”
could not yet be registered as between Faumuina and Tautolo. We stand
by that implicit finding.
III. Territorial Registrar’s Registration of October 25, 2000
The Territorial Registrar registered title to land as the Tautolo family’s
communal land, and recently an amended version, both dated October
25, 2000. In the present motion for reconsideration or new trial and
during the hearing on the motion, Tautolo expressly noted the Registrar’s
initial registration. We advised counsel that we would examine the
Registrar’s registration files.
Tautolo states that the initial registration pertains to approximately
23.333 acres, the area contained in “Anaoleatu.” Apparently, Tautolo
justifies this interpretation on the timing of the registration. He followed
our admonition and offered his survey of “Anaoleatu” for registration
shortly after entry of our decision of August 3, 2000, and the required 60day notice period expired shortly before the registration was issued on
October 25, 2000. However, Tautolo’s conclusion ignores the facts that
three timely objections, one by Faumuina, were filed with the Registrar,
and the controversy thus framed has not yet gone through the dispute
resolution proceedings before the Secretary of Samoan Affairs, let alone
ultimate judicial determination.
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Recently, the Territorial Registrar recognized the ambiguity in the first
registration issued on October 25, 2000, and reissued an amended
registration, specifically for the 6.301 acres in “Agaoleatu.” The
amended registration is consistent with our original adjudication of
August 3, 2000, and the Registrar’s corrective action is understandable.
The Registrar has not yet received official notice of the revision of our
original adjudication to recognize that a portion of “Agaoleatu” is the
Faumuina family’s communal land, and that title to “Anaoleatu,”
including “Lepue,” outside of the portion of “Agaoleatu” held by the
Faumuina family as communal land, is presently undeterminable. The
corrective action is, of course, insufficient in light of the revision.
Accordingly, we will set aside the initial and amended registrations,
pending final determination of the title to areas within “Agaoleatu.” We
will also keep the Registrar fully informed about judicial developments
in this action.
Order
1. Tautolo’s motion for reconsideration or new trial is denied.
2. The stay of execution of the judgment shall remain in effect pending
the existing and any subsequent appeal. The stay applies specifically and
only to ASPA’s payment of rentals for the leases of the well site and
waste disposal site on the land at issue.
3. The original and amended versions of the Territorial Registrar’s
registration of Tautolo’s title, both dated October 25, 2000, are set aside
pending final resolution of the title to the areas within “Agaoleatu.”
4. The clerk of the court shall cause delivery to the Territorial Registrar
of certified copies of the court’s orders: (a) order partially granting
motion for reconsideration and denying new trial of November 6, 2000;
(b) order granting motion for reconsideration or new trial of March 1,
2001; (c) opinion and order of November 30, 2001; and (d) this order.
When appropriate, we will direct the clerk to transmit to the Registrar
future court orders in this action.
It is so Ordered.
**********
156
TUILEPA TUILEATA (TELESIA) FIAME and
PALE FE`A (for the TUILEATA FAMILY), Plaintiffs,
v.
TUIOLEMOTU FAMILY and DOES I through X, Defendants.
High Court of American Samoa
Land and Titles Division
LT No. 11-02
March 27, 2002
[1] When the sa`o’s position is vacant, an action for injunctive relief
concerning communal land must be brought by at least two blood male
matai members of the family, over age 18, or if the family does not have
such members, by at least two blood members, over age 18.
[2] The Secretary of Samoan Affairs must issue a certificate of
irreconcilable dispute, following at least two appearances by the parties
for dispute resolution proceedings, before the High Court has jurisdiction
to judicially determine an action relating to a controversy over communal
land.
[3] Where party on contested activities on disputed communal land,
Court could issue interim order, including preliminary injunction, and
stay further proceedings despite the fact that jurisdictional certificate of
irreconcilable dispute had not yet been issued.
[4] If a preliminary injunction applicant demonstrates a legitimate issue
to litigate with more deliberate consideration, the criterion of likely
success on the merits at trial is sufficiently met.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Jeffrey Waller
For Defendants, Aitofele Sunia
PRELIMINARY INJUNCTION
On March 19, 2002, plaintiffs Tuilepa Tuileata (Telesia) Faime and Pale
157
Fe`a for the Tuileata family (“Tuileata family”)1 filed this action to
enjoin defendant Tuiolemotu Family (“Tuiolemotu family”) from
excavation, construction, or work of any kind on, and from other uses of,
land owned by the Tuileata family, known as Olovalu, in the Village of
Malaeloa. The court denied the Tuileata family’s application for a
temporary restraining order, but we issued an order to show cause for a
hearing the family’s request for a preliminary injunction. The hearing
was held on March 26, 2002. Both counsel were present.
[1] In this action, the Tuileata family seeks injunctive relief in a
controversy involving communal land claimed by both the Tuileata
family and the Tuiolemotu family. Presently, neither family has a sa`o in
office. When the sa`o’s position is vacant, an action for injunctive relief
concerning communal land must, under A.S.C.A. § 43.1309(b), be
brought by at least two blood male matai members of the family, over
age 18, or if the family does not have such members, by at least two
blood members, over age 18. Apparently, the two named plaintiffs
qualify to bring this action under the last alternative, but it is not entirely
clear that the Tuileata family lacks at least two adult blood male matai
members. The Tuiolemotu family did not, however, challenge
compliance with the qualification statute, and for present purposes at
least, we accept the named plaintiffs’ qualifications. Though not free of
doubt, we find the named plaintiffs qualified for immediate purposes in
the absence of definitive contrary evidence.
[2-3] In addition, pursuant to A.S.C.A. § 43.0302, the Secretary of
Samoan Affairs must issue a certificate of irreconcilable dispute,
following at least two appearances by the parties for dispute resolution
proceedings, before this court has jurisdiction to judicially determine the
dispute. At the time the complaint was filed, one appearance had taken
place, but the second meeting had not yet been scheduled. Resolution
was not achieved at the first meeting before the Secretary, and when the
Tuiolemotu family continued to carry on the activities at issue on the
land, the Tuileata family brought this action. In accordance with
A.S.C.A. § 43.0304, we can, under these circumstances, issue an interim
order, such as a preliminary injunction, when such action is appropriate,
but stay further proceedings unrelated to the necessary interim action
until the jurisdictional certificate of irreconcilable dispute is issued.
Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986).
The Tuiolemotu family’s immediate activates, particularly the cinder
1
The third named plaintiff in the complaint, Fe`afe`aga Tauama II,
advised the court, through the Tuileata Family’s counsel, at the beginning
of the order to show cause hearing on March 26, 2002, that he was
withdrawing from this action.
158
excavation, are resulting in irreparable injury to the land before a trial
can be fairly held on whether a permanent injunction should issue. The
Tuiolemotu family does not contest this fact. Thus, one of the two
criteria forming the basis for a preliminary injunction is met. A.S.C.A. §
43.1301(j) (2).
The second criterion, a substantial likelihood that the Tuileata family will
prevail at trial on the merits, A.S.C.A. § 43.1301(j) (1), is not so readily
apparent. As requested by the parties, however, we have examined the
files of several previous cases before this court concerning the titles to
portions of Olovalu.
The file in Tuileata Family v. Amituana`i, 4 A.S.R.2d 168 (Land &
Titles Div. 1987), aff’d 8 A.S.R.2d 173 (App. Div. 1988) is especially
significant for present purposes. The trial court’s decision in that case
determined the ownership of most of Olovalu. However, in light of
overlapping claimed areas, the decision left the area where the cinder pit
is apparently located open to the parties’ negotiated settlement of their
respective boundaries in this area. There is no follow through regarding
these negotiations of record in the file. Moreover, when comparing the
decision with the surveys on file, both the defining boundaries of Olovalu
as a whole and the exact location and sizes of the awarded Tuileata and
Tuiolemotu family lands are not entirely clear to us.
[4] It appears, therefore, that ownership of the land now at issue is an
open issue, and the Tuileata family has made a sufficient factual showing
a good chance of prevailing on the merits. If a preliminary injunction
applicant demonstrates a legitimate issue to litigate with more deliberate
consideration, the criterion of likely success on the merits at trial is
sufficiently met. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103104 (Trial Div. 1985)
Accordingly, we will issue the following preliminary injunction.
Order
1. During the pendency of this action, the Tuiolemotu family, its family
members, officers, agents, servants, employees, and attorneys, and those
persons in active concert or participation with them are enjoined from all
new construction of any kind and further excavation of cinders or other
natural materials on the portion of Olovalu claimed by the Tuileata
family as its communal land.
2. A hearing is scheduled on April 8, 2002, at 9:00 a.m. for the purpose
of clearly defining the exact land area affected by this preliminary
injunction. The parties shall come to this hearing prepared to show this
159
area on existing surveys as precisely as is presently possible.
3. Further proceedings in this action, except as may be related to this
order or other necessary interim orders, are stayed pending compliance
with A.S.C.A. § 43.0302 (a).
It is so Ordered.
**********
FANENE S. SCANLAN, Plaintiff
v.
FANENE FETAIAIGA KAVA and DOES I-X, Defendants
High Court of American Samoa
Land and Titles Division
LT No. 13-00
September 9, 2002
[1] The subservient obligation of tautua normally runs from a family
member to the family sa`o or senior matai.
[2] The Samoan way of life has twin cornerstones, the matai system and
communal land tenure.
[3] Where court decisions recognized split title in family but awarded
land solely to one of the titleholders, resulting in disenfranchisement of
one branch of family and requiring said branch to render tautua to other
family branch, such decision was wrongly decided, inconsistent with
Samoan custom and contrary to the Treaties of Cession.
[4] The Treaties of Cession require respect and protection of the people
to their lands and the recognition of property rights according to Samoan
custom.
[5] A family's entitlement to communal land is a proprietary right within
the due process clause of the territorial constitution.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
160
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Charles V. Ala`ilima
OPINION AND ORDER
This case is but yet another sad chapter in what unfortunately has been an
ongoing, longstanding contest between two family factions, apparently
unrelated by blood but tied to a common matai title, Fanene, attached to
the village of Pago Pago. The Fanene title today has two holders, one
from each faction; however, the village of Pago Pago has been neither
prepared to recognize nor accept the Fanene title as a split title.
Consequently, this state of affairs has begotten its own parade of
practical problems since there is only one Fanene title cognizant within
the traditional village polity.50
To compound difficulties, court decisions have declared that certain
Fanene family land known as Lalopua, at issue before us now, is
exclusively owned by one of these Fanene factions, although in part
occupied by the other for many years. The faction asserting ownership is
seeking to oust or evict the other.
Discussion
The modern day situation with the Fanene family of Pago Pago has in
large part been the product of a tortuous evolutionary process generated
not through customary Samoan development, but by operation of law
within the imported legal framework.
Split Matai Titles & Communal Factionalism
For reasons now clouded with time, two persons were permitted to first
register the Fanene matai title in 1906, when the then newly established
U.S. Naval government first began to regulate matai title registration.
The origin of dual Fanene titleholders was alluded to in testimony given
50
Plaintiff Fanene Scanlan claims that the Fanene holders from his family
branch are the only legitimate reference in the village honorifics, or
salutation, "tei ma anoalo." However, he readily admits to present day
realities that not only recognizes but admits his co-holder Fanene Kava to
be seated at the village council and be deferred to as the Fanene. Plaintiff
explained that the defendant and he have operated under an informal
understanding that whomever arrives first at a village council meeting
assumes the Fanene's seat and post. It goes without saying that plaintiff's
claim to singular legitimacy is vigorously opposed by the defendant's side.
161
and discussed in Taofi v. Foster, 1 A.S.R. 464 (Trial Div. 1932). It
appears that at some time prior, there were two factions that had also
emerged within the Mauga family of Pago Pago, each with its own
titleholder—a Mauga Manuma and a Mauga Lei. Id., at 465. Each of
these Mauga appointed his own Fanene. Fanene Tavai and Fanene
Mataumu respectively. Id. It further appears that from this precedent,
dual Fanene title-holders have persisted. Our review of the cases reveals
that principally because of the fact of dual registration in 1906, the Court
in 1965 determined that the Fanene title was a "split title" between two
unrelated Fanene family groups, and thereby affirmed the registration of
a second titleholder in Fanene Filo v. Vaoalii K. Fanene, 4 A.S.R. 603
(Trial Div. 1965), hereafter "the 1965 split title decision". 51 Ironically,
however, the Court early arrested the notion, and any development, of
dual Mauga titleholders. Thus in 1913, the Court in Mauga v. Taelase, 1
A.S.R. 276 (Trial Div. 1913), declared that the Mauga title was not a
split title for division among multiple titleholders because it would,
among other things, destroy the prestige and dignity of the great title.
This was later affirmed in In Re the Matai Title Mauga, 4 A.S.R. 132,
140 (Lands & Title Div. 1971) ("We are reversing our decision in
Tauvevematalilo [sanctioning split titles] since upon reconsideration it
was ill-advised and in substantial derogation of Samoan custom").
The upshot of these court decisions is undeniably the following: the
attempted splitting of the Mauga title, which in turn gave rise to the
creation of split Fanene titles, was stifled by judicial fiat while its Fanene
split-title spin off was not only left undisturbed, but given the Court's
imprimatur. The Court has thus seemingly given inconsistent effect to
the fa`a Samoa.
Land Lalopua
We next note that in 1932 the Court, in Taofi v. Foster, had awarded the
Fanene title to Filo Foster, plaintiff Fanene Scanlan's predecessor in title.
1 A.S.R. 464 (Trial Div. 1932). Filo then singularly held the Fanene title
for a period of thirty-three years until, as we have seen, the Court in the
1965 split title decision allowed a Vaoali`i K. Fanene (defendant Fanene
Kava's predecessor in title) to be registered as a second Fanene
titleholder.
While Filo alone held the Fanene title, he offered Lalopua for
51
The Court here observed that "[t]he matai name register shows that Pulu
Saofeatalai was registered as the holder of the Fanene title on October 10,
1906, and that on October 30, 1906, Vaomalo was also registered as a
Fanene." 4 A.S.R. at 604. It then concluded that "the Fanene title is a split
title." Id.
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registration, on October 11, 1944, as the communal property of "the
Fanene family." This offer to register not only attracted a third-party
counter-claim, from the Mauga family, but also a counter-claim from
within the Fanene family from one Taofi, the same individual who vied
with Filo for the Fanene title in the 1932 case. Taofi attempted to claim
Lalopua as his “individually-owned” land, and the resulting land dispute
came before the Court in 1945 as Taofi v. Fanene, 2 A.S.R. 197 (Trial
Div. 1945), hereafter “the 1945 Lalopua land case.” The Court, not
surprisingly, found in favor of the extended family and against the
individual family member (as well as against the third-party claimant).52
Split Titles & Factional Communal Ownership
In 1971, the Land and Titles Division further took up the issue of
Lalopua and redefined the scope of the 1945 Lalopua land case's
holding—that the land belonged to the Fanene family—by declaring that
Lalopua was owned by the Fanene Filo faction of the family, to the
exclusion of Fanene Tauveve's (defendant Fanene Kava's predecessor in
interest) faction. Fanene Foster for Herman Scanlan v. Fetaiaiga T.
Fanene, LT No. 1089 and Fanene Foster & Richard Foster v. Tauveve
Fanene, LT No. 1154 (Consolidated), (Land & Titles Div. 1971)
(Findings of Facts and Judgment, entered Nov. 1, 1971) (hereafter
collectively referred to as "LT Nos. 1089 and 1154"). The Court
therefore further held that pule lay with the matai of Fanene Filo's
branch.
Without regard to Samoan realities, the 1971 Court in its cursorily
worded opinion simply arrived at these conclusions by first taking
"judicial notice" of and then "re-affirm[ing]," without elaboration,
"pertinent portions of the Court's decision in the 8-1932 (Taofi v. Foster,
supra) and 20-1945 (the Lalopua land decision) cases between these two
families." LT Nos. 1089 and 1154, Slip op. at 4. Seven months after,
and apparently realizing that parts of Lalopua were being occupied by
Fanene Kava's side of the family, the 1971 Court felt constrained to add,
by way of separate addendum, that those members of the other side of the
family occupying Lalopua—viz, Fetaiaiga Kava, now the present
defendant Fanene F. Kava, and her children—could nonetheless remain
52
Taofi's claim to title was simply that, a mere claim to title. In order to
establish a claim to individually owned land, a party must couple his claim
with a showing that the land was (1) cleared in its entirety or substantially
so from the virgin bush by him through his own initiative and not by, for, or
under the direction of his aiga or its senior matai; (2) cultivated entirely or
substantially so by him; and (3) occupied by him or his family or his agents
continuously from the time of the clearing of the bush. Fanene v. Magalei,
LT No. 64-77 (1977).
163
on Lalopua as long as they rendered tautua (the obligation of rendering
traditional service) to the holder of pule. See Fanene Foster for Herman
Scanlan v. Fetaiaiga T. Fanene, LT No. 1089 and Fanene Foster &
Richard Foster v. Tauveve Fanene, LT No. 1154 (Consolidated), (Land
& Titles Div. 1972) (Findings of Fact and Judgment Nunc Pro Tunc,
entered Jun. 23, 1972), reported in 4 A.S.R. 66 (Land & Titles Div.
1972). The only attempt at explanation given by the Court for the
addendum was "inadvertence and clerical error," 4 A.S.R. at 67;
otherwise the reader is provided neither rhyme nor reason for this belated
amendment.
Intuitively, at least, the result seems only fair, but the underlying
reasoning is conspicuously absent while the Court's premise remains
baffling. Quite clearly, the Court, after apparently realizing the harshness
of disentitling family members from family lands, had effectively
attempted to mitigate matters by ready resort to equity without
explanation. But by doing so, the Court has also effectively turned
Samoan custom on its head, with the cumulative outcome of case
development being the anomaly of a Samoan family split into two,53 each
with its own titleholder, and with one branch declared landless and owing
tautua to the other. This incongruent state of affairs has, not
surprisingly, proven to be a recipe for enduring turmoil and discontent. 54
LT No. 1089 and 1154 Holdings and Land Ownership
The 1971 Court, in our view, read too much into 8-1932 (Taofi v. Foster,
supra) and 20-1945 (the Lalopua land decision) in order to find a basis
for its conclusion that Lalopua was owned only by the Fanene Filo
faction of the family. First, Taofi v. Foster was a matai title contest. The
issue here had nothing to do with landholding and the matai court had
absolutely nothing to do with Lalopua.
Second, the 1945 Lalopua land case Court specifically found that:
the true owner of the property in question is the Fanene family
and Fanene Filo, as the matai of this family is entitled to register
this land as communal land owned by him as the matai of the
53
The fact that the two branches of the Fanene family are not blood related
does not ipso facto render a family split into two. Indeed, the Mauga
family itself, the derivative source of the Fanene split, is comprised of three
clans who are not blood related. See In re Matai Title Mauga, MT No. 1298 (Land & Titles Div. 2001). But as we have seen, supra, the cases have
declared that the Mauga title is not a split title.
54
See Fanene v. Fanene, 26 A.S.R.2d (Land & Titles Div. 1994), for a
sketch of the Fanene factions' litigation history.
164
family. (Emphasis added).
2 A.S.R. at 200. Noteworthy with the Lalopua land case is the fact that
the land Lalopua was offered for registration by Filo not as the
communal land of Fanene Filo's side of the family, but as the communal
land of the Fanene family. Additionally, and to put the 1945 case in
proper perspective, there was, at the time, only one Fanene family—the
family was not split until the 1965 split title decision—and one Fanene
titleholder, Fanene Filo who represented the whole Fanene family.
Support for this finding—that Fanene Filo was representing the whole
Fanene family, as opposed to only one faction of the family—is to be
found in the records of the 1965 split title decision as well as in Fanene
Filo v. Tauveve L. Fanene, LT No. 1035 (Trial Div. 1970), wherein both
instances Fanene Filo vigorously objected to the proposition that the
Fanene title was a split title. Therefore, when Filo offered Lalopua for
registration in 1944, he was operating under the premise that the family
was not a split family, and thus in 1944, he was representing all of the
Fanene family. The issue of factionalism was neither before the court in
1945 nor anywhere within its contemplation. Nowhere within the 1945
Court's judgment is there even the slightest hint of factional ownership of
Lalopua.
Moreover, the 1971 Court's conclusions in LT Nos. 1089 and 1154 are in
stark contrast with our treatment of other, albeit isolated, "split" title
cases, where family lands were accorded corresponding "split" effect in
accordance with factional usage. For example, the matai title
Mulitauaopele of Lauli`i has had two titleholders from two unrelated
family groups "for at least a hundred years." In re Matai Title
Mulitauaopele, 16 A.S.R.2d 63, 69 (Land & Titles Div. 1990). In
rejecting an attempt by one of the Mulitauaopele family lines to unify the
title by seeking to abolish the other line's claim, the court not only gave
effect to the fact that "the two families have different lands," but went on
to say that "it would be contrary to Samoan custom for them to . . .
choose a single title holder with pule over both families' lands . . . ." Id.
at 68.
[1-2] Lastly, the consequence of the holdings in LT Nos. 1089 and 1154
is the rather peculiar, if not farcical, situation of a matai title co-holder
owing his peer the subservient obligation of tautua, an obligation which
in the normal course runs from a family member to the family sa`o or
senior matai. An even more curious consequence of the LT Nos. 1089
and 1154 holdings is the resulting situation of a Samoan family cognizant
at law with a registerable matai title, but no communal lands; a state of
affairs which simply cannot be reconciled with the truism that “the
Samoan way of life has twin cornerstones, the matai system and
communal land tenure.” (emphasis added) Fairholt v. Aulava, 1
165
A.S.R.2d 73, 78 (Land & Titles Div. 1983).
The twin cornerstones of the Samoan way of life are communal
land tenure and the matai system. Each is essential to the other.
Without the matai system to administer it, the communal land
system becomes anarchy. Without the communal land system,
there is no reason for the matai. (emphasis added).
Lavata`i v. Pen, AP No. 08-94, slip op. at 8, (App. Div. 1996) quoting
Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div). 1983). In Lavata`i,
the Appellate Division further alluded to the constitutionally mandated
policy of protective legislation requiring the courts to interpret statutes in
a way which is protective of the Samoan custom. Slip op. at 9. See also
REV'D CONST. AM. SAMOA, ART. I, § III. What we have seen here,
however, is that the matai registration enactment has been, at least as far
as the Fanene family has been concerned, somehow given effect to divide
a once united family to the point that with subsequent case development,
one branch of that family has been disenfranchised with respect to family
land. Thus without communal land, or entitlement to land, what
essentially befalls the defendant's side of the family is the suggestion that
one of its traditional foundations—cornerstones—is rendered legally
non-existent.
[3-4] We are loathed to continue upholding this aberrant view of Samoan
custom. Although other decisions of this Court have seemingly upheld
the 1971 Court's holdings in LT Nos. 1089 and 1154, 55 we note that these
decisions, citing to the doctrine of res judicata, were grounded on mere
acceptance of the holdings in LT Nos. 1089 and 1154, without comment
or critical evaluation. Because we are of the view that the holdings of the
1971 Court were not only wrongly footed but simply inconsistent with
the customs of the Samoan people, we decline to follow, and in lieu of
the doctrine of res judicata, we cite to the provisions of the Treaties of
Cession which require, among other things, "respect and protect[ion] . . .
of all people dwelling in Tutuila to their lands";56 and that "the rights of .
. . all people concerning their property according to their customs shall
be recognized."57
Findings and Conclusion
55
See Fanene v. Fanene 19 A.S.R.2d 69 (Land & Titles Div. 1991), and
Fanene v. Fanene, 26 A.S.R.2d 8, 12 (Land & Titles Div. 1994).
56
April 17, 1900 Cession of Tutuila and Aunu`u (February 20, 1929, ch.
45 Stat. 1253.)
57
July 16, 1904 Cession of Manu`a Islands (May 22, 1929, ch. 6, 46 Stat.
4.)
166
The evidence here shows that defendant's side of the family has occupied
and shared Lalopua with members of plaintiff's side for generations.
With the Court's visit to view the land in question, we noted not only
shared burial ground with members of plaintiff's branch, but a defined
area of settled occupation by defendant's side of the family in the way of
permanent structures with subsistence plantations toward the mauga side,
consistent with longstanding and settled occupation. This settled
occupation exists side by side with a sub-faction within the Fanene Filo
branch, Johnny Foster's family, who have been quite content to co-exist
in harmony side by side with the defendant and her family.58 The
evidence further suggests that the animosity been the plaintiff and the
defendant in this matter, as evident by the number of times they have
appeared before the Court in recent times, predates to the 1971 litigation,
when Fanene Filo signed a separation agreement on Lalopua in favor of
Herman Scanlan, now Fanene Scanlan, which was objected to then by the
present defendant. According to the defendant, plaintiff had at the time
wanted to put up a structure on Lalopua, in anticipation of a lease to the
one of the canneries and in derogation of her family's use of the land.
Since both parties have each assumed the matai title Fanene, the discord
appears to have magnified. Plaintiff has variously complained about
defendant's unwarranted intrusion into his sphere of pule, as upheld by
the Courts, while defendant has countered with claims of capriciousness
on the part of plaintiff in the exercise of pule.59 Defendant claims, for
example, that plaintiff has resisted her obtaining requisite government
permits to allow her side of the family to do necessary repairs and
renovations to their deteriorating homes.
Quite clearly, the resultant and atypical state of affairs with the once
unitary Fanene family of Pago Pago persists to date with the plainly
unworkable principle of two families, two matai, but one pule. From the
evidence, and from our review of Fanene family history, we conclude
that the 1971 Court's interpretation of the 1945 Court's holding in the
58
Plaintiff has also encountered familial estrangement within his own
branch of family. See In re Petition to Remove Fanene Title, MT No. 0495 (Land & Titles Div. 1995).
59
The Samoan concept of pule, not to be confused with the notion of
"ownership," is the power or trust vested in the senior matai to administer
family lands. Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87-8 (Land & Titles
Div. 1989). However, a matai's authority or pule over family lands is not
unfettered when it comes to dealing with the rights of family members;
rather, it must be used for the benefit of family members justly and fairly.
It must not be used unreasonably and unjustly. Pen v. Lavata`i, 25
A.S.R.2d 164, 168 (Land & Titles Div. 1994); aff'd Lavata`i v. Pen, AP
No. 08-94 (App. Div. 1996).
167
Lalopua land case, viz., that land Lalopua is exclusively owned by only
one branch of the Fanene family, was not only unnecessary but, as noted
above, in derogation of defendant's branch's rights to "their lands" in
accordance with Samoan custom. See April 17, 1900 Cession of Tutuila
and Aunu`u (February 20, 1929, ch. 45 Stat. 1253.)
In our reading of the 1945 Lalopua land decision, all that the Court there
decided was that the land Lalopua was the communal property of the
Fanene family—nothing more, and nothing less. In rejecting Taofi's
individually owned claim, the 1945 Court did not thereby throw out the
communal entitlement of those family members who are not members of
Fanene Filo's branch, as the 1971 Court has necessarily implied.
[5] Having regard to fundamental precepts of Samoan custom, as
enunciated in Fairholt v. Aulava; Tavai v. Silao; and Lavata`i v. Pen,
discussed supra, and taking into account Fanene family history as it
evolved incongruously within the courts, we opt to follow the literal
holding of the 1945 Lalopua land decision, and decline to follow the
unnecessary interpretation of the 1971 Court in LT Nos. 1089 and 1154.
To the present panel of Samoan Associate Judges, a landless Samoan
family with a legally recognized matai, especially with a longstanding
history as communal land occupants, does not add up. To the contrary,
the Court here is satisfied, and finds, that defendant's branch of the
family are also members of the Fanene extended family attached to the
Village of Pago Pago, and as such are accordingly entitled to Fanene
communal family holdings Lalopua, as they have been occupying, in
accordance with the 1945 Lalopua land decision. As such, the defendant
and her branch of the family's entitlement to communal land is a
proprietary right within the due process clause of the territorial
constitution. REV'D CONST. OF AM. SAMOA I § 2; Fairholt v. Aulava, 1
A.S.R.2d at 74; Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87 (Land & Titles
Div. 1989).
We further conclude, consistent with fundamental precepts of Samoan
custom that pule, at least with regard to those portions of Lalopua, under
occupation and cultivation by defendant's family, lies in their sao, or
senior matai, viz., Fanene F. Kava.
Plaintiff's petition for eviction on the basis of pule must be, and it is
hereby denied. Judgment will enter for defendant.
It is so Ordered.
**********
168
FANENE S. SCANLAN, Plaintiff
v.
FANENE FETAIAIGA KAVA and DOES I-X, Defendants
High Court of American Samoa
Land and Titles Division
LT No. 13-00
September 9, 2002
[1] The Treaties of Cession and the Revised Constitution of American
Samoa dictate that the courts respect the right to property according to
custom.
[2] Where issue of eviction was not addressed in court’s previous
decisions regarding family titleholder and family land, court was forced
to reconsider and reverse previous decisions which disenfranchised
branch of family and which had violated the legal mandate that property
rights be respected according to custom.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Charles V. Ala`ilima
ORDER DENYING MOTION FOR NEW TRIAL
This dispute concerns land Lalopua in the village of Pago Pago
belonging to the Fanene extended family. As the consequence of prior
court decisions, the once unitary Fanene family has been split into two
factions who have been fighting ever since for dominion over real family
assets. The latest round in this enduring inter-factional rivalry concerns
the attempt by one faction to altogether oust the other from communal
land, and thereby, effectively disenfranchise the defendants' side not only
as Fanene family members, but as an extended Samoan family unit.60 We
60
The fa`a Samoa or the Samoan way life has twin cornerstones, the matai
system and communal land tenure. Fairholt v. Aulava, 1 A.S.R.2d 73, 78
(Land & Titles Div. 1983); Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles
Div. 1983); Lavata`i v. Pen, AP No. 08-94, slip op. at 8 (App. Div. 1996).
Thus, without communal land, the defendant's side of the family would
169
denied the petition for eviction and refused to perpetuate a travesty on
the fa`a Samoa, as it concerns the defendants.
We are cognizant of the fact that the land Lalopua has been fought over
and previously litigated. In fact, our Order & Opinion deals quite
extensively with the previous litigation and contains our related analysis.
As explained in detail in our opinion, the 1945 Lalopua land decision,
Taofi v. Fanene, 2 A.S.R. 197 (Trial Div. 1945), was misinterpreted by
the court in 1971, LT Nos. 1089 and 1154 (Land & Titles Div. 1971),
and this misinterpretation was applied as controlling precedent by later
courts without close review of the substance of the decision. We found,
among other things, that the defendants are in fact members of the
extended Fanene family, the same family that was found to be entitled to
Lalopua in 1945. The problem, essentially, is that the 1945 decision
treated the Fanene family as one, but the 1971 decision treated the 1945
case as precedent in favor of only one side of the by then divided Fanene
family.
[1-2] Res judicata is, of course, a concern in a situation where the same
land has been previously contested. However, the previous cases not
only misapplied the 1945 decision, they also never addressed the issue of
eviction. It is our opinion that the issue of eviction casts a new light
upon all the issues revolving around the disagreement over this piece of
land. The questions of who is entitled to live on Lalopua and who has
pule over it cannot be properly addressed without considering the full
ramifications of the 1971 decision—including possible evictions. The
highest authorities in the territory are the Treaties of Cession and the
Constitution. These resources dictate that we respect the right to
property according to custom. See April 17, 1900 Cession of Tutuila and
Aunu`u (February 20, 1929); July 16, 1904 Cession of Manu`a Islands
(May 22, 1929); REV'D CONST. OF AM. SAMOA art. I, § 2. We cannot in
good conscience respect the customs and traditions of the Samoan people
and continue to apply the previous wrongly footed decisions concerning
this property. With the issue of eviction, we were forced to consider
fundamental issues which we outlined in our detailed opinion and order.
We see no manifest error of law nor mistake of fact required to order a
new trial. Accordingly, we deny plaintiff's motion.
It is so Ordered.
**********
simply cease to exist as a Samoan family unit.
170
TUILEFANO M. VAELA`A, Claimant
v.
VALENTINO TAUFA`ASAU, UTAIFEAU T. MAUGA
ASUEGA, FANENE F. KAVA SEALI`ITU F. MAUGA,
and MAILO ATONIO, Counter-claimants
____________________
[In re Matai Title MAUGA of the Village of Pago Pago]
High Court of American Samoa
Land and Titles Division
MT No. 12-98
April 3, 2002
[1] At the court's discretion, it may grant a stay, pending appeal, of the
execution of judgment in a civil action.
[2] The court's discretion to grant the stay pending appeal should be
exercised only for cause shown and a stay should not be granted casually.
[3] In order to demonstrate good cause for a stay pending appeal, the
moving party must establish: 1) failure to grant the stay would cause
irreparable harm; 2) a likelihood of success on appeal; and 3) the public
interest would be harmed by not granting the stay.
[4] Monetary loss does not constitute irreparable harm.
[5] Part of assessing irreparable harm when considering a stay involves
the balancing of equities.
[6] Where Appellant sought stay of investiture ceremony pending appeal
of matai title decision, equities weighed against stay, as investiture
ceremony would not affect outcome of appeal and Appellant could
nonetheless attend ceremony and avoid family unrest. Contrarily,
granting stay would negatively impact a significantly greater number of
people which could result in more family turmoil.
[7] A civil appeal is limited to the issues which were raised in the motion
for new trial. The appellate court has no jurisdiction to consider any
other issues.
171
[8] An appeal which merely suggests that the losing party's arguments
and factual position were better and should have prevailed, without
showing clear error on the part of the trial court, is not likely to succeed.
[9] Although public interest tends to favor simple solutions without
controversy, where court believed that discord would result if the
investiture ceremony was delayed, where vast majority of family
supported court-sanctioned candidate and were already investing in title
investiture ceremony, and where family had previously delayed matai
selection process for many years, court determined that public interest
could be equally or more greatly harmed by delaying investiture
ceremony as by allowing it to continue.
Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge,
ATIULAGI, Associate Judge and TAUANU`U, Temporary Associate
Judge.
Counsel: For Tuilefano M. Vaela`a, Afoa LS. Lutu and Arthur Ripley, Jr.
For Utaifeau T.M. Asuega, Asaua Fuimaono
ORDER DENYING MOTION TO STAY
JUDGMENT PENDING APPEAL
On December 14, 2001, this court entered judgment awarding the matai
title Mauga of Pago Pago to Uta`ifeau T.M. Asuega ("Uta`ifeau").
Claimant Tuilefano M. Vaela`a ("Tuilefano") filed a motion for a new
trial, which was denied, and then filed for an appeal. None of the other
candidate-claimants, and hence their respective supporters, have taken
further issue with the trial court's decision. Claimant Tuilefano now
moves this court to stay the judgment pending his appeal. As Uta`ifeau
has already procured registration of the title, Tuilefano is essentially
asking the court to enjoin the title investiture ceremony that Uta`ifeau
and remaining members of the Mauga family have already begun
planning to take place later this month.
[1-3] The court may grant a stay of execution pending appeal, beyond the
ten days after an order is issued, at the court's discretion. T.C.R.C.P. 62.
The court's discretion to grant the stay, however, should be exercised
only for cause shown and a stay should not be granted casually. Asifoa v.
Faoa, 71 A.S.R. 10, 12 (App. Div. 1990). The moving party must
establish: 1) failure to grant the stay would cause irreparable harm; 2) a
likelihood of success on appeal; and 3) the public interest would be
harmed by not granting the stay. In re Matai Title Mulitauaopele, 17
A.S.R. 2d 71, 73 (Land and Titles Div. 1990).
172
Discussion
1. Irreparable Harm
Tuilefano's arguments for irreparable harm focus on the potential for
disharmony in the family if a title investiture ceremony takes place
without his and his supporter's participation. As we understand the
argument, there are family members who still support Tuilefano's
candidacy pending appeal, and who will not be able to exercise their
rights as family members to participate in the investiture ceremony while
the appeal is pending. It is also claimed that these family members who
support his appeal will be ostracized for non-participation. Hence, it is
claimed, disharmony will result.
Tuilefano further argues that if he wins on appeal, and title investiture
has already taken place, there would be disharmony and confusion
concerning the title, and monetary expenses would have been wasted on
the pending ceremony.
[4] First, we reject Tuilefano's wasted-money argument as constituting
irreparable harm. Monetary loss is the very prototype of repairable harm.
Whether the expense of a Samoan title investiture ceremony might later
prove to be a colossal waste of money, because of a subsequent appellate
ruling, the economic harm resulting would hardly inure to the irreparable
harm of the Mauga family, as a Samoan institution, and to those members
who choose to participate. There is simply no evidence to suggest this.
To the contrary, experience teaches otherwise. There have been, albeit
infrequently, instances whereby the cost of an investiture ceremony has
been for naught, because of a later appellate ruling. But in these
instances, the fa`a Samoa and the traditional institutions of matai and
family have nonetheless continued to endure not withstanding the
outward economic waste.
Second, the claim to ostracism is just that, a claim (in part attributable to
"golf course" rumors). When Uta`ifeau was confronted with these
claims, he assured under oath that such claims had no basis in fact.
[5-6] Part of assessing irreparable harm when considering a stay involves
the balancing of equities. T.C.R.C.P. 62 (a), (c); Asifoa, 71 A.S.R. 2d at
12, 13. If Tuilefano's motion is denied, he and his supporters would have
a choice—to either attend the investiture ceremony or not attend.
Whether they attend or not has absolutely no prejudicial effect
whatsoever on the merits of Tuilefano's appeal. Choosing not to attend
would potentially have a negative impact on the harmony of the family.
Choosing to attend, however, while it might be seen by some as a sign of
acquiescence, could equally be viewed by others as a noble effort to
173
maintain honor, and family harmony, while the appeal is pending.
If the motion is granted, the investiture ceremony, for which the entire
family besides Tuilefano's supporters is preparing, would be put on hold
until the appeals process is complete. The title would remain
symbolically unfulfilled, and the great majority of the family would likely
be unhappy with the delay, inevitably creating significant discord.
Balancing the equities produces a result in favor of allowing the
investiture to continue as planned. While either result could lead to
discord, granting the stay negatively impacts a significantly greater
number of people which could result in as much or more unrest as not
granting the stay. Additionally, if the stay is not granted, Tuilefano and
his supporters still would have the option to attend, avoiding most of the
potential for discord while not affecting his legal claims in the slightest.
2. Likelihood of Success on Appeal
[7-8] The likelihood of success on appeal is also a factor that weighs in
favor of denying the motion. Tuilefano's appeal is limited only to those
issues which were raised in his motion for new trial, since the appellate
court has no jurisdiction to consider any issues not raised on his motion
for new trial. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, (App.
Div. 1988). A review of Tuilefano's appeal, combined with his
arguments, submitted both orally and in writing, has hardly shown a high
likelihood of success on appeal. In fact, the thrust of his appeal seems
principally to be in the way of a quarrel with this court's factual
assessments, void of substantive legal argument. An appeal which
merely suggests that the losing party's arguments and factual position
were better and should have prevailed, without showing clear error on the
part of the trial court, is not likely to succeed. See Moea`i v. Alai`a, 12
A.S.R.2d 91 (App. Div. 1989); Utuutuvanu v. Mataituli, 12 A.S.R.2d 88,
90 (App. Div. 1989)("It is not within the province of the appellate court
to reweigh the evidence and interfere with a decision based on the lower
court's choice of one version of the facts over another").
3. Public Interest
[9] Like his arguments concerning irreparable harm, Tuilefano's efforts to
show that the public interest demands a stay of execution focuses on the
potential discord of allowing an investiture ceremony to take place while
the appeal could still be granted. While it is true that the public interest
would favor a simple solution without controversy, discord would also
result if the pending ceremony is delayed because of the interests of one
faction of the family. None of the other candidates for this title have
challenged the appointment of Uta`ifeau, and they represent the vast
majority of the family, which is apparently already investing in the title
174
investiture ceremony.
Lastly, as Tuilefano acknowledges, the title Mauga has national and
historical significance. But the title has been vacant for many, many
years while the Mauga heirs struggled with the vicissitudes of a
traditional decision making process that promotes indefinite
postponement in the absence of consensus. In the meantime, Mauga's
extended family, the Tei ma Anoalo, Matua ma Nofofanau, ma
Anoaloifale, and the village of Pago Pago, have had to sit by patiently
throughout this inordinate time frame. The solidarity of their presence in
court at the hearing of the motion to stay did not escape the attention of
Associate Judges. Undoubtedly, these third-parties no less demand
continuity with their traditional institutions now long held in abeyance
while a successor Mauga titleholder was being sought.
These
countervailing factors must, at least for the historically significant Mauga
title, enter into the public interest assessment.
In our view, the public interest could be equally or more greatly harmed
by delaying the investiture ceremony at this point as by allowing it to
continue.
Order
We conclude that claimant has not shown sufficient cause to warrant this
court staying execution of judgment or imposing an injunction on a title
investiture ceremony pending appeal. Accordingly, the motion to stay
execution, and/or for injunctive relief, is denied.
It is so Ordered.
**********
175
CHRISTINE KRUSE, Plaintiff,
v.
AMERICAN SAMOA GOVERNMENT for the
OFFICE OF SAMOAN AFFAIRS, SOTOA SAVALI,
OFFICE OF TERRITORIAL REGISTRAR,
and SALOTE SCHUSTER, Defendant.
High Court of American Samoa
Trial Division
MT No. 8-01
April 9, 2002
[1] Basic rights at the heart and soul of the American way of life, having
an explicit or implicit constitutional foundation, are fundamental and are
entitled to have laws impacting them strictly scrutinized.
[2] The hierarchial matai title and communal land systems, along with the
Samoan language, are pillars of fa`asamoa.
[3] The holder of the sa`o matai title heads the family, the key unit of
Samoan society.
[4] The sa`o of a family is entrusted with grave responsibilities for the
protection and management of the family’s communally-owned lands and
the family’s affairs.
[5] Neither a matai title nor the aspiration to attain the title is a property
right, or any other constitutional right of fundamental importance
[6] A.S.C.A. § 1.0403(b), which sets forth qualifications of eligibility to
succeed to a matai title does not establish, or deal with, fundamental
rights so as to be subject to strict scrutiny by a reviewing court.
[7] Where territorial statute discriminates against individuals based on
their national origin, Court will apply strict scrutiny in reviewing it.
[8] A.S.C.A. § 1.0403(b) does not exclude individuals based on national
origin.
[9] Under the rational basis test, a statute passes constitutional muster if
it is rationally related to a legitimate territorial interest.
176
[10] Matai titles are of central importance in Samoan customs, and
maintaining a proper selection process is important to preserve
fa`asamoa.
[11] A.S.C.A. § 1.0403(b), which sets forth qualifications for candidates
to matai titles, was enacted with the purpose of ensuring that titleholders
possess close relationships with American Samoa. Such purpose is
related to the government’s duty to preserve fa`asamoa, and the statute’s
restrictions constitute a rational way to ensure that a titleholder has a
close association with the territory.
Counsel: For Plaintiff, Marie A. Lafaele and Charles V. Ala`ilima
For Defendants, Marcellus T. Uiagalelei, Asst. Atty General
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate
Judge.
OPINION AND ORDER
Plaintiff Christine Kruse (“Kruse”) brought this action to enable her
participation as a claimant to the “Fanene” matai title of the Village of
Nu`uuli. Kruse contends that the Territorial Registrar and Secretary of
Samoan Affairs, as agents officiating on behalf of defendant American
Samoa Government (“ASG”), denied her constitutional right to compete
for the title. Both parties moved for summary judgment, and the hearing
was scheduled on February 19, 2002.
After this action was filed, concomitant claims to the “Fanene” title were
submitted for judicial determination in the now pending action, In re
Matai Title “Fanene”, MT No. 11-01. On January 28, 2002, at the
hearing on Kruse’s motion to intervene and stay proceedings in MT No.
11-01, we deferred acting on the motion pending the outcome of this
action.
The essential facts are undisputed and the legal issues are primary in this
action. It can be, and should be, expeditiously decided to avoid undue
delay of the proceedings in MT No. 11-01. Thus, counsel were advised
that the trial in this action, rather than a summary judgment hearing,
would proceed on February 19, 2002, and that the parties should present
witnesses and other evidence to confirm and supplement the facts set
forth in the affidavits supporting the summary judgment motions. The
trial began on February 19 and concluded on February 21, 2002. All
counsel were present.
177
Factual Background
Kruse is a naturalized citizen of the United States and has been a resident
of Nu`uuli for over 10 years. She was born in [Western] Samoa in 1942
where her parents then resided. Her father was a citizen of Samoa and
her mother was a United States National born in American Samoa. Her
mother was a member of the Fanene family. Kruse moved to American
Samoa with her mother when she was approximately three years old. She
has served the Fanene family from 1968 until the present time.
In early June of 2001, the Fanene family decided that a member of its
Taffeta clan, to which Kruse is a member, would be the next holder of
the vacant “Fanene” title leading the family. This clan nominated three
people, including Kruse, as candidates. On June 6, 2001, one nominee,
not Kruse, offered to register the Fanene title with the Territorial
Registrar. In late June, 2001, Kruse and the third nominee filed
counterclaims to register the title. A member of another family clan also
filed a counterclaim to the title.
The Territorial Registrar then forwarded the names of three of the
claimants, excluding Kruse, to the Secretary of Samoan Affairs for
dispute resolution proceedings, pursuant to the mandate of A.S.C.A. §
43.0302(a). The Territorial Registrar informed Kruse that she was
excluded from the list because of the birthplace requirement in A.S.C.A.
§ 1.0403(b). Though the Secretary of Samoan Affairs was advised by
Kruse of her disagreement with the omission of her name, the Secretary
proceeded with the dispute resolution process and, on October 22, 2001,
issued a certificate of irreconcilable dispute. The “Fanene” title
controversy was then referred to this court for judicial determination and
is pending as MT No. 11-01.
Discussion
Kruse disputes the constitutionality of A.S.C.A. § 1.0403(b). This statute
prescribes one of the necessary qualifications of eligibility to succeed to
a matai title as follows:
(b) He must have been born on American soil; provided that
a person born of parents who were inhabitants of American
Samoa, but temporarily residing outside of American Samoa
or engaged in foreign travel, at the date of birth of such child,
may, for the purposes of this subsection, be considered as
having been born on American soil if:
(1) while actually residing in American Samoa, and at any
time within one year after he attains the age of 18 years, he
files with the territorial registrar a renunciation, under oath, of
178
allegiance to the country of his birth, or
(2) he has resided in American Samoa for a continuous period
of not less than 10 years prior to the time of filing his
application to be registered as the holder of a matai title.
Kruse challenges the statute on three fronts: (a) as violating a
fundamental right, (b) as discriminatory against individuals on the basis
of national origin, and (c) as violating the duty of the Legislature of
American Samoa to preserve fa`asamoa, the Samoan way of life.61
[1] Kruse correctly asserts that this court has applied the standard
developed under the equal protection clause of the 14th amendment of
the United States Constitution to a substantive due process challenge
under Article I, Section 2 of the Revised Constitution of American
Samoa. American Samoa Gov’t v. Macomber, 8 A.S.R.2d 182 (Trial
Div. 1988). Kruse argues that holding a matai title is a fundamental
property right and aspiring to hold a matai title is a fundamental liberty
right in the Samoan culture entitled to constitutional protection. Basic
rights at the heart and soul of the American way of life, having an explicit
or implicit constitutional foundation, are fundamental and are entitled to
have laws impacting them strictly scrutinized. See, e.g., Plyer v. Doe,
457 U.S. 202, 221 (1982); San Antonio School District v. Rodriguez, 411
U.S. 1, 33 (1973).
[2-4] The hierarchial matai title and communal land systems, along with
the Samoan language, are pillars fa`asamoa. The holder of the sa`o
matai title heads the family, the key unit of Samoan society. The family
ideal is a close-knit group of loyal and dedicated members, with a welldefined structure of lesser matais, overseen by the sa`o. The sa`o is
entrusted with grave responsibilities for the protection and management
of the family’s communally owned lands, the single most important
tangible family asset, and the family’s affairs. See Pen v. Lavata`i, 25
A.S.R,2d 164, 167-69 (Land & Titles Div. 1994).
An individual does not hold the matai title of a family sa`o simply by
birth as a blood member of the family. A sa`o matai title, or any other
61
Kruse also argues that if A.S.C.A. § 1.0403(b) is not constitutionally
void, she still has an alternative remedy under the federal civil rights
statutes, in particular 42 U.S.C. §§ 1981, 1983, and 1985. These statutes
are expressly applicable to the territory. 42 U.S.C. § 1981. This court
has held, however, that if the particular right, privilege, or immunity at
issue is not secured in the territory by the U.S. Constitution, the parallel
remedy provided by the federal civil rights statutes is also unavailable.
Banks v. American Samoa Gov’t, 4 A.S.R.2d 113, 128 n.7 (Trial Div.
1987).
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matai title for that matter, and the matai selection process are neither
property rights or privileges having constitutional origin, nor liberty
rights of the same dimension. In most families, a matai title is
traditionally granted to an individual by consensus of the family, usually
based on blood connection with and service to the family. The recipient
does not have the freedom to use the title as a personal possession, but
rather must carry out the fiduciary duties of the position. Pen v. Lavata`i,
25 A.S.R.2d at 168.
[5-6] To assign possession of a matai title status as a fundamental right
would be akin to recognizing the status of an elected office as a
fundamental right. It would even elevate a mere potentiality to the level
of elemental standing for the person aspiring to hold the title. Neither a
matai title nor the aspiration to attain the title is a property right, or any
other constitutional right of fundamental importance, so to require strict
scrutiny of A.S.C.A. § 1.0403(b).
[7-9] We would still apply strict scrutiny in reviewing A.S.C.A. §
1.0403(b) if the law discriminated on the basis of national origin.
However, this court already decided this issue. See, e.g., In Re Matai
Title “I`aulualo”, 25 A.S.R. 2d 155, 158 (Land & Titles Div. 1994). An
individual born outside of American or American Samoan soil can still
qualify as a candidate for a matai title as long as the parents were then
bona fide inhabitants of American Samoa. Id. at 158 (even an individual
who is not a U.S. national may qualify). Because A.S.C.A. § 1.0403(b)
does not exclude individuals based on national origin, we will not apply
the strict scrutiny test, but will instead apply the rational basis analysis to
review A.S.C.A. § 1.0403(b). This means that the statute passes
constitutional muster if it is rationally related to a legitimate territorial
interest. See, e.g., Heller v. Doe, 509 U.S. 312 (1993).
Kruse also argues that A.S.C.A. § 1.0403(b) violates the duty of the
American Samoa Government or the Legislature of American Samoa to
preserve fa`asamoa. That duty is prescribed in various direct and indirect
ways. See Cession of Tutuila and Aunu`u of April 17, 1900; AM. SAMOA
REV. CONST. art. I, § 3 and art. II, § 1 & 9; and A.S.C.A. § 1.0202. Her
argument is premised on the concept that no traditional rule requires a
potential matai to be born on American soil. If the law were subject to
strict scrutiny, this argument might be enough. As the law need only be
rationally related to a legitimate territorial purpose, Kruse must go
further to succeed.
[10] Matai
maintaining
fa`asamoa.
A.S.C.A. §
titles are of central importance in Samoan customs, and
a proper selection process is important to preserve
However, Kruse fails to establish that the restriction of
1.0403(b) is not rationally related to the very legitimate
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purpose of preserving Samoan culture. In fact, this statute works towards
that very purpose.
Samoan culture is dynamic. The basic tenets of matai leadership and
communal land ownership must stand tall and firm for the Samoan way
of life to survive. However, this does not mean that the culture cannot
endure after accommodating changes in custom. Fa`asamoa, like all
living cultures, finds constructive ways to adapt to the times and evolve.
The fateful decisions leading the acceptance of political division of once
unified Samoa and allegiance of American Samoans to the United States
created a situation of adaptation as well the need to preserve fa`asamoa.
The new political identity would surely lead to changes in the matai
system. The matai system today is not exactly the same as it was 100
years ago.
[11] The constitutional and statutory protections of fa`asamoa do not
prevent the Legislature of American Samoa from enacting and the
Governor of American Samoa from approving rational laws designed to
preserve changed attitudes and practices, including new ways of keeping
.fa`asamoa in tune. Close identification with American Samoa as a
qualification to hold a matai title was a logical and legitimate historical
development. Clearly, the Legislature and Governor held the view that
requiring a foreign born candidate for a matai title to have parents who
retained American Samoa as their permanent home and were abroad for a
transitory purpose was, and is, a rational way to ensure that a titleholder
has close association with the territory. It is not the court’s function to
second guess this legislative judgment. While there are other, and
perhaps even better, ways that the Legislature and Governor might have
chosen, and may yet choose, to achieve the objective of close attachment
to the territory, the one selected rationally serves that purpose.
Order
Because the statute is rationally related to the legitimate purpose of
recognizing accepted criteria for the selection of a matai, in an effort to
preserve fa`asamoa, Kruse’s challenge of the constitutionality of
A.S.C.A. § 1.0403(b) falls short. Her claim fails, and this action is
dismissed. We will also deny Kruse’s motion to intervene and stay
proceedings in MT No. 11-01.
It is so Ordered.
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