Soloa v. Am. Samoa Gov’t

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

MISI SOLOA and TUSIGAIGOA SOLOA, Plaintiffs,

 

v.

 

American Samoa Government, Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 77-07

 

March 29, 2012

[1] Under the Government Tort Liability Act, the court lacks subject matter jurisdiction to hear a tort claim against the government unless the claimant first exhausts the administrative remedy established under A.S.C.A. § 43.1205(a).

[2] Section 43.1205(b) authorizes the Attorney General to settle administrative claims under the regulations encapsulated in A.S.A.C. §§ 43.0101-43.0108.


[3] 28 U.S.C. § 2672, the federal counterpart to A.S.C.A. § 43.1205(b), confers authority upon regulatory agencies to settle administrative claims. It specifically requires the reviewing agency to conduct its review in accordance with regulations prescribed by the Attorney General. 28 C.F.R. § 14.4, the federal counterpart to A.S.A.C. § 43.0105, is the regulation that prescribes what information in addition to the administrative claim that the reviewing agency may require from the claimant in order to conduct its investigation.


[4] Federal courts have interpreted 28 U.S.C. §§ 2672 and 2675 as not incorporating 28 C.F.R. § 14.4 because of the concern that it could allow the federal agencies to indefinitely forestall valid claims against the Federal Government by requesting additional information from a claimant on grounds that the administrative claim is deficient.


[5] Furthermore, the Legislature enacted the GTLA for the same reason Congress passed the FTCA: to waive the government’s sovereign immunity so as to provide those who have suffered, as a consequence of the government’s tortious conduct, with a legal avenue of redress and to hold the government accountable for its actions. It is this overriding purpose, and the textual similarities that the GTLA and the FTCA share, that ultimately carry the greatest weight. As such, we find federal case law interpreting the FTCA to be an appropriate and instructive source of persuasive authority for interpreting A.S.C.A. [**8**] § 43.1205 and A.S.A.C. § 43.0105 and for determining whether the regulation is incorporated into the statute.


[6] The High Court’s jurisdiction is still predicated on the presentment of a claim to the Attorney General. This is clearly stated in A.S.C.A. § 43.1205. Such a claim, however, is deemed presented so long as the administrative claim presented to the Attorney General (1) reasonably notifies the Attorney General of the incident and (2) includes a claim for money damages for a sum certain.


[7] If the Attorney General’s Office does not respond to an administrative claim letter within three months, the court will treat that silence as a rejection of the administrative claim letter and deem that the plaintiff has exhausted his administrative remedies, which will in turn grant the court subject matter jurisdiction over a claim brought under the Government Tort Liability Act.

 

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

 

Counsel:        For Plaintiffs: Fiti A. Sunia.

For Defendant: Kevin Kornegay, Assistant Attorney General.

 

ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND DISMISSAL

 

 

Before the Court is Defendant’s Motion for Reconsideration of Order Denying Motions for Summary Judgment and Dismissal.

 

Defendant argues that we erred when we denied Defendant’s summary judgment motion and found that we had subject matter jurisdiction over the claim. Defendant, therefore, maintains that we lack subject matter jurisdiction over Plaintiffs’ claim because Plaintiffs have failed to exhaust all of their administrative remedies.

 

According to Defendant, Plaintiffs were required to provide the Attorney General with information in addition to what they provided in their administrative claim; as such, Plaintiffs have [**2**] failed to exhaust their administrative remedies. At the heart of Defendant’s argument is the issue of whether the GTLA incorporates the regulations, which require a claimant to submit additional information aside from that already mandated by the GTLA. Needless to say, if the regulations are incorporated into the GTLA, then any failure to comply with the regulations is a failure to exhaust the administrative remedies.

 

Defendant specifically argues that we improperly analogized the Government Tort Liabilities Act (“GTLA”) with the Federal Tort Claims Act (“FTCA”) and misapplied FTCA case law. According to Defendant, the differences between local and federal statutes and regulations governing tort actions against government agencies are such that it would be improper to analogize the two statutory and regulatory schemes, much more, federal cases interpreting the FTCA.

 

[1, 2] Under the GTLA, the court lacks subject matter jurisdiction unless the claimant first exhausts the administrative remedy established under A.S.C.A. § 43.1205(a).[1] Section 43.1205(b)[2] [**3**] authorizes the Attorney General to settle administrative claims according to A.S.A.C. §§ 43.0101-.0108.[3] A.S.A.C.§ 43.0105 is the regulation at issue in this matter. It specifically describes what information the claimant must provide to the Attorney General in addition to the administrative claim letter before the American Samoa government can review the administrative claim.

 

[3] 28 U.S.C. § 2675 is the federal counterpart of A.S.C.A. § 43.1205(a). Section 2675 prescribes the process by which a [**4**] claimant may bring an action against the Federal Government under the FTCA. It requires that the claimant first present an administrative claim to the federal agency, whose tortious conduct allegedly caused plaintiff’s damages. 28 U.S.C. § 2672, the federal counterpart to A.S.C.A. § 43.1205(b), confers authority upon regulatory agencies to settle administrative claims. It specifically requires the reviewing agency to conduct its review in accordance with regulations prescribed by the Attorney General. 28 C.F.R. § 14.4, the federal counterpart to A.S.A.C. § 43.0105, is the regulation that prescribes what information in addition to the administrative claim that the reviewing agency may require from the claimant in order to conduct its investigation.

 

[4] Federal courts have interpreted 28 U.S.C. §§ 2672 and 2675 as not incorporating 28 C.F.R. § 14.4 because of the concern that it could allow the federal agencies to indefinitely forestall valid claims against the Federal Government by requesting additional information from a claimant on grounds that the administrative claim is deficient. See Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir. 1999); Corte-Real v. United States, F.2d (1st Cir. 1991); GAF Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1987); Warren v. U.S. Dep’t [*5*] of Interior Bureau of Land Mgmt, 724 F.2d 776 (9th Cir. 1984); Charlton v. United States, 743 F.2d 557, 561 (7th Cir. 1984); Tucker v. U.S. Postal Service, 676 F.2d 954, 958-59 (3d Cir. 1982); Adams v. United States, 615 F.2d 284, 292 (5th Cir. 1980).

 

Defendant argues that applying this interpretation to the local statutory and regulatory counterparts would be error because, according to Defendant, this problem does not present a threat under our statutory and regulatory scheme. Unlike their federal counterparts, A.S.C.A. § 43.1205 and A.S.A.C. §§ 43.0101-.0108. do not contain any language that would enable a local agency to preclude a claimant’s access to the court by extending the review period. Defendant specifically focuses on the fact that the review period under the GTLA and the American Samoa Administrative Code is strictly limited to three months; whereas, a federal agency may indefinitely exceed the FTCA six-month review period by continually requesting more information from the claimant. Defendant, therefore, asserts that we should not follow the federal court trend to interpret our local laws on this matter. Rather, Defendant is of the belief that A.S.C.A. § 43.1205(a) should be interpreted as incorporating A.S.A.C. § 43.0105. [**6**]

 

Defendant’s argument is anything but convincing. Like their territorial counterparts, neither 28 U.S.C. §§ 2675 and 2672 nor 28 C.F.R. § 14.4 contain any language that extends the review period beyond what the statute prescribes. Yet, despite the absence of such language, the federal courts have noted the danger of incorporating 28 C.F.R. § 14.4 into 28 U.S.C. §§ 2672 and 2675—i.e., incorporation presents agencies with an opportunity to use the regulation to delay the administrative claim review process. We simply do not see how the same type of risk would not present itself if we found A.S.A.C. § 43.0105 to be incorporated into A.S.C.A. § 43.1205.

 

Defendant relies on little else other than speculation, which is centered solely on the mandatory-versus-permissive distinction between A.S.A.C. § 43.0105 and 28 C.F.R. § 14.4. This argument is nonsensical since A.S.A.C. § 43.0105 contains vague and overbroad language. See A.S.A.C. §§ 43.0105(a)(8), (b)(6), and (c)(5).[4] Much like the risk that the permissive language that 28 C.F.R. § 14.4 presents, the language under subsections 43.0105(a)(8), (b)(6), and (c)(5) of the American [**7**] Samoa Administrative Code provides the government wide discretionary latitude, which Defendant can use to its strategic advantage to interfere with a claimant’s access to the court.[5]

 

Defendant’s assertion is made even less persuasive given the striking similarities between A.S.C.A. § 43.1205 and its federal statutory counterparts. It is apparent that the Legislature used the FTCA as a template when it formulated the GTLA. Equally obvious is the American Samoa Government’s utilization of 28 C.F.R. §§ 14.1-14.11. as the model for A.S.A.C. §§ 43.0101-0.108.

 

[5] Furthermore, the Legislature enacted the GTLA for the same reason Congress passed the FTCA: to waive the government’s sovereign immunity so as to provide those who have suffered, as a consequence of the government’s tortious conduct, with a legal avenue of redress and to hold the government accountable for its actions. It is this overriding purpose, and the textual similarities that the GTLA and the FTCA share, that ultimately carry the greatest weight. As such, we find federal case law interpreting the FTCA to be an appropriate and instructive source of persuasive authority for interpreting A.S.C.A. [**8**] § 43.1205 and A.S.A.C. § 43.0105 and for determining whether the regulation is incorporated into the statute.

 

Consequently, we see no reason why the federal courts’ findings that 28 U.S.C. §§ 2675 and 2672 do not incorporate 28 C.F.R. §§ 14.4. would not similarly apply to A.S.C.A. § 43.1205 and A.S.A.C. § 43.0105. The plain language of the GTLA is clear: A.S.C.A. § 43.1205(a), like its federal counterpart (28 U.S.C. § 2675), provides what is required before a claim against the government under the GTLA may be brought before the court. It requires the claimant to exhaust all administrative claims before the court may exercise proper jurisdiction over the claim.

 

A.S.C.A. § 43.1205(b), like 28 U.S.C. § 2672, deals with the authority of agencies to settle claims, not with establishing court jurisdiction. It is apparent to us that Defendant improperly equated the regulatory administrative claim settlement requirements of A.S.C.A. § 43.1205(b) with the jurisdictional presentment requirements of A.S.C.A. § 43.1205(a) to invoke High Court jurisdiction. The regulatory requirements go far beyond the notice requirement of A.S.C.A. § 43.1205(a).

 

[5] We have previously recognized that A.S.A.C. § 43.0105 does not augment the jurisdiction prerequisites of A.S.C.A. § [**9**] 43.1205. See Tuavale v. Am. Samoa Gov’t, AP No. 07-09, slip op. at 6 (App. Div. May 25, 2011); Mageo v. Am. Samoa Gov’t, CA No. 16-05, Order Denying Defendants’ Motion for Summary Judgment (Trial Div. July 20, 2010). Defendant has failed to present anything that would distinguish the present case from these prior rulings. We, therefore, remain unmoved. A.S.C.A. § 43.1205 does not incorporate A.S.A.C. §§ 43.0101-.0108.

 

[6] Nonetheless, it is important to note that the High Court’s jurisdiction is still predicated on the presentment of a claim to the Attorney General. This is clearly stated in A.S.C.A. § 43.1205. Such a claim, however, is deemed presented so long as the administrative claim presented to the Attorney General reasonably notifies the Attorney General of the incident and includes a claim for money damages for a sum certain. Although we have never so concisely articulated our position, we have long ago adopted this interpretation of the law. See Moananu v. Am. Samoa Gov’t, CA No. 133-85, slip op. (Trial Div. Nov. 12, 1985); Utu v. Nat’l Pac. Inc. Co., 9 A.S.R.2d 88, 92 (Trial Div. 1988); Mataipule v. Tifaimoana Partnership, Ltd., 14 A.S.R.2d 100 (Trial Div. 1990). We see no reason why we should ignore well-established precedent. [**10**]

 

Defendant raises another issue worth discussing. The issue is whether the Attorney General’s silence to an administrative claim over the entire three-month review period should be interpreted as a rejection of the administrative claim that exhausts all available administrative remedies, thereby, allowing the claimant to present the claim to the court.

 

Not surprisingly, Defendant argues such silence from the Attorney General should not be construed as a rejection or even a failure to respond. Federal courts have allowed a claimant to treat a government agency’s silence and unresponsiveness throughout the statutory administrative review period as a final denial of his administrative claim. See, e.g., Pascale v. United States, 998 F.2d 186 (3d Cir. 1993); McCallister v. United States, 925 F.2d 841, 842 (5th Cir. 1991); Parker v. United States, 935 F.2d 176 (9th Cir. 1991). Needless to say, federal courts, in such instances, have found claimants to have exhausted all available administrative remedies and have exercised subject matter jurisdiction over these claims.

 

[7]

Defendant, however, argues that these rulings do not apply to our statutory and regulatory scheme because, unlike the federal regulation (28 C.F.R. § 14.4), A.S.A.C. § 43.0105 is mandatory in that it requires a claimant to provide specific [**11**] information with his administrative claim. That being the case, Defendant argues that the Attorney General should not have to request information that the law itself has directed the claimant to provide. [7] We disagree. Defendant places too much importance on the distinction between the permissive language of 28 C.F.R. § 14.4 and the mandatory language of A.S.A.C. § 43.0105. This matter has been rendered moot by the fact that the regulation is not incorporated into the statute. [7] We also recognize the danger of expecting claimants to strictly adhere to the mandatory claims requirements of A.S.A.C. § 43.0105. Specifically, the language used in subparts (a)(8), (b)(6), and (c)(5) of that regulation is vague and broad. As such, the regulation can be used to prevent valid claims from reaching the court by imposing obstacles that are predicated on nothing more than technical procedural formalities that provide marginal assistance to investigating the administrative claim. We do not believe the Legislature envisioned the GTLA to operate in so harsh a manner.

See Tuavale, AP No. 07-09 at 6; Crispin v. American Samoa Gov’t, 21 A.S.R.2d 60, 65-66 (Trial Div. 1992) (the GTLA’s administrative claim process should not be used to obstruct judicial determinations on technicalities). [**12**]

 

We, therefore, reject Defendant’s line of speculative reasoning. Defendant cannot preclude a claimant’s access to the court by ignoring a claim and choosing not to notify the claimant that his claim is deficient.

 

ORDER

 

Defendant’s Motion to Dismiss is denied. It is so ordered.



[1] A.S.C.A. § 43.1205(a) provides:

 

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

 

[2] A.S.C.A. § 43.1205(b) provides:

 

(b)           The Attorney General shall, in accord ance with regulations prescribed by the Gover nor, consider and determine, compromise or settle any claim for money damages against the government for damage to or loss of property, or personal injury or death, caused by the negli gent or wrongful act or omission of any em ployee of a government agency while acting within the scope of his office or employment, under circumstances where the government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 

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

 

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

 

[5] Discussed, infra, at greater length.