5ASR3d3

ISLAND’S

CHOICE, INC., Petitioner

 

v.

 

AMERICAN

SAMOA GOVERNMENT, OFFICE OF PROCUREMENT AND LOLO M. MOLIGA,

CHIEF

PROCUREMENT OFFICER, AND 

G.H.C.

REID & CO., INC., Respondents.

 

High

Court of American Samoa

Appellate

Division

 

AP

No. 13-00

 

July

9, 2001

 

 

[1] Judicial

power in American Samoa, like the United States, is limited review of presently

pending cases or controversies.

 

[2] The Court

cannot hear cases that are moot, or where the issues to be determined are no

longer “live” or the parties lack a legally cognizable interest in the

outcome. 

 

[3] Judicial

review of administrative action is limited by the requirement that there be an

actual, live controversy to adjudicate.

 

[4] An

exception to mootness doctrine lies where the acts at issue are “capable of

repetition, yet evading review.” 

 

[5] If the

reviewing court can afford prospective relief, the controversy is not moot.

 

[6]

The “capable of repetition, but evading review” exception to the mootness

doctrine is limited to cases where (1) the challenged action was too short to

be fully litigated prior to its cessation or expiration, and (2)  there is a reasonable expectation that the

same complaining party will be subject to the same action again.

 

[7] Under the “capable

of repetition, but evading review” exception to the mootness doctrine, there

must be a reasonable expectation that harm will again come to the same

plaintiff, not merely a theoretical possibility of future harm.

 

[8] Courts

reviewing federal agency actions under the Administrative Procedures Act are

limited to compelling agency actions or holding actions unlawful.  Courts cannot grant monetary relief.

 

[9] In American

Samoa, pecuniary relief is not available in judicial review of administrative

proceedings. 

 

[10] If a

disappointed bidder wishes for monetary relief, the proper course of action is

not through appellate review of administrative proceedings, but rather through

such means as a trial de novo.

 

[11]

Where respondent had not filed an answer in response to petition for review of

order, such omission did not require court to give judgment in petitioner’s

favor, as rule requiring timely filing of answer imposed no sanction for its

violation.

 

Before

KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,*

Acting Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE,

Associate Judge.

 

Counsel:

For Petitioner, Roy J.D. Hall, Jr.

 For Respondents

American Samoa Government and

 Procurement Officer,

Fiti A. Sunia, Assistant Attorney General

 For Respondent G.H.C.

Reid & Co. Inc., Jennifer L. Joneson

 

OPINION

AND ORDER

 

Disappointed

bidder, Island’s Choice, Inc. (“ICI”), petitions this court to review an order

of the Administrative Law Judge (“ALJ”) affirming an agency decision to award

the contract for the supply and delivery of milk for the School Lunch Program

(“milk contract”) to co-defendant G.H.C. Reid and Co., Inc. (“Reid”).

 

Reid

and ICI were the two primary bidders who responded to an April 2000 annual

invitation for bids published by the Office of Procurement of the American

Samoa Government (“OP-ASG”). The bidders competed according to who scored the

highest points on an agency-established five-point test, including (“Section

I”) carton, 200 points, (“Section II”) product specifications, 300 points,

(“Section III”) experience and ability to perform, 200 points, (“Section IV”)

sample, 200 points, and (“Section V”) cost, 300 points.  The Source Evaluation Board (“SEB”) evaluated

the bidders and awarded points in each category.

 

OP-ASG

selected Reid for the milk contract on May 3, 2000.  ICI appealed the agency decision in a timely

and proper manner.  Specifically, ICI filed

a notice of dispute with the agency almost immediately, on May 16, 2000.  OP-ASG denied the notice of dispute on May

30, 2000.  ICI then filed a petition for

review of agency action with the ALJ on June 19, 2000.  The ALJ heard arguments between August 23 and

August 30, 2000, on which date Reid was to begin supply and delivery of milk

under the milk contract.  The ALJ

rendered his opinion affirming OP-ASG’s award of the milk contract to Reid on

September 15, 2000.  ICI then submitted a

motion to reconsider or to have a new trial to the ALJ.  This was apparently denied in open session,

and the ALJ published a written order denying the motion on October 12,

2000.  Petitioner then followed timely

and proper procedure to appeal the ALJ decision.  It submitted a petition for this court’s

review of the ALJ opinion on October 3, 2000. 

The transcript of ALJ proceedings was filed in court on November 16,

2000; ICI filed its appeal brief on December 22, 2000; and Reid filed its

appeal brief on January 22, 2001.  ICI

then moved to set a date for oral argument on February 7, 2001, which we heard

on May 23, 2001.  The milk contract term

ended, and supply ceased, on June 1, 2001.

 

In

its petition for appellate review of the ALJ decision, ICI has asked for this

Court to (1) set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to

(2) reverse the order and award the milk contract to ICI, or else grant damages

to ICI for OP-ASG’s failure to properly award the contract.

 

Jurisdiction

properly arises for Appellate Court review of the ALJ order under A.S.C.A. §§

4.0604(g) and 4.1041. 

 

I.  Mootness

 

It is now summer in

the American Samoa school year, if not in meteorological terms, and the milk

contract has, like the school year, expired with Reid as the purveyor of

milk.  There is no contract to set aside

for petitioner, nor pertinent order to reverse. 

It thus appears that the issue of the appropriateness and legality of

the 2000-2001 contract award is moot.

 

[1-2]

Judicial power in American Samoa, like the United States, is limited review of

presently pending cases or controversies. 

U.S. Const. art. III; Rev. Const. Am. Samoa art. III, § 1;

A.S.C.A. § 3.0103; Burke v. Barnes, 479 U.S. 361, 363 (1987); Meredith

v. Mola, 4 A.S.R. 773, 776 (Trial Div. 1973) (citing Baker v.

Carr, 397 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486

(1969)).  Simply put, we cannot hear

cases that are moot, or where the issues to be determined are no longer “live”

or the parties lack a legally cognizable interest in the outcome.  Senate of the Legislature of Am. Samoa v.

Lutali, 26 A.S.R.2d 125, 129 (Trial Div. 1994); Murphy v. Hunt, 455

U.S. 478, 481 (1982) (per curiam); Powell, 395 U.S. at 496.

 

[3-4]

Judicial review of administrative action is limited by the requirement that

there be an actual, live controversy to adjudicate.  Campesinos Unidos v. U.S. Dept. of Labor,

803 F.2d 1063, 1067 (9th Cir. 1986) (citing Iron Arrow Honor Soc’y v.

Heckler, 464 U.S. 67, 72-73 (1983)). 

However, courts confronting expired official acts frequently find

exception to mootness where the acts at issue are “capable of repetition, yet

evading review.”  S. Pac. Terminal Co.

v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911); see also Charles Alan Wright et al., Federal Practice

and Procedure § 3533.8 (2d ed. 1990). 

Moreover, if the reviewing court can afford prospective relief, the

controversy is not moot.  Campesinos,

803 F.2d at 1068; Associacao Dos Industriais de Cordoaria v. United

States, 828 F.Supp. 978, 984 (Ct. Int’l Trade 1993).

 

Clearly,

the issue of to whom to award the milk contract is moot because the school year

has ended, the contract has been fully performed, and the contract term of

August 30, 2000 to June 1, 2001 has expired. 

The issue is thus whether or not the procurement acts at issue by OP-ASG

in awarding the milk contract to Reid are “capable of repetition, yet evading

review,” and if they are, whether or not this court can provide prospective

relief to ICI.

 

A.  Capable

of Repetition, Yet Evading Review

 

In

Lutali, the only American Samoa case on record to have dealt with the

mootness issue, the Trial Division evaluated the “capable of repetition, yet

evading review” doctrine based on a two-part standard employed by the U.S.

Supreme Court in Murphy, 455 U.S. at 357, which was cited in Weinstein

v. Bradford, 423 U.S. 147 (1975), and which first originated after a

thorough review of the history of the mootness doctrine by that Court in Sosna

v. Iowa, 419 U.S. 393 (1975).  The Lutali

Trial Court, however, cited a narrower version of the standard used by the

U.S. Supreme Court.  Specifically, in Lutali,

the Court stated that in non-class actions, the “capable of repetition, but

evading review” doctrine is limited to cases where “(1) a defendant

terminates the challenged action before the issue is fully litigated, and

(2) there is a reasonable expectation the plaintiff would be subject to the

same actions in the future.”  Lutali,

26 A.S.R.2d at 129-30 (emphasis added). 

The exact language used in U.S. Supreme Court cases, however, is:  “(1) the challenged action was in its duration

too short to be fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same complaining party would be

subjected to the same action again.”   Murphy,

455 U.S. at 357 (emphasis added); Weinstein, 423 U.S. at 353 (emphasis

added).

 

The

Lutali Court thus states a more specific version of the U.S. Supreme

Court language.  Where the Supreme Court

requires that, to overcome a finding of mootness, the challenged action be “too

short to be fully litigated,” the Lutali Trial Court stated the first

element as being when “a defendant terminates the challenged action” before it

is fully litigated.  The language used by

the Trial Court in Lutali seems a logical, valid and acceptable

interpretive application of the Supreme Court’s language where a defendant

perpetrator terminates a controverted action. 

This was appropriate in the Lutali case, where the Fono

sued ASG for implementing ASG employee pay increments without prior authorization.

Once the suit was initiated, however, the Governor decided not to implement the

pay increases, and argued that the case was therefore moot.  The Trial Court held that the Governor’s

conduct fell within its articulated exception for mootness.  

 

The

language used by the Trial Division to state the “capable of repetition, yet

evading review” doctrine, though appropriate for adjudicating specific fact

instances akin to Lutali, is unduly restrictive.  The Trial Division did not state how or why

it deviated from the U.S. Supreme Court language, nor did it indicate that it

was doing so.  The circumstances where

the Trial Division’s language apply are simply too specific to be generalized.

 

[6]

We expand upon Lutali and adopt the more generally applicable language

employed by the U.S. Supreme Court in Sosna, Murphy, and Weinstein

in evaluating whether or not an action is capable of repetition, yet evading

review.  For the mootness inquiry, the

questions before the court are thus: was the challenged action too short to be

fully litigated prior to its cessation or expiration, and is there a reasonable

expectation that the same complaining party will be subject to the same action

again?

 

First,

was the challenged action in its duration too short to be fully litigated prior

to its cessation or expiration?  That is,

was the agency award of the milk contract too short to be fully litigated prior

to its expiration?  We find that it was.  OP-ASG announced its choice for the milk

contract on May 3, 2000.  ICI complied

with the appeals process and was denied at each level, first applying for

review by the OP-ASG, then with the ALJ, and finally filing with the Appellate

Court.  The most efficient of appeals

would not have brought the case to this court until late winter or early

spring, at which point the contract would already have been substantially

completed.  We thus find that the

agency’s decision on the milk contract is one that may, even under the most

proper or timely of circumstances, evade review.

[7]

The second element of the mootness exception analysis regards whether there is

a reasonable expectation that the same complaining party would be subjected to

the same action again.  As stated in Lutali,

“‘[r]easonable expectation’ must go beyond a theoretical possibility of

repetition to the same plaintiff.”  Lutali,

26 A.S.R.2d at 129 (citing Delta Air Lines, Inc. v. Civil Aeronautics

Bd., 674 F.2d 1 (D.C. Cir. 1982)); Murphy, 455 U.S. at

357.  ICI is one of the consistent annual

bidders to the milk contract, and thus is a plaintiff that would again be

subject to the bidding, evaluation and selection process for future milk

contracts.  Our inquiry, however, is more

specific, and regards whether ICI would reasonably be expected to be subject to

the specifically challenged actions again, not merely the general process of

procurement.  We do not judge the merit

of the actions, but simply their repeatability.

 

1. Misbranding

 

Within

ICI’s general allegation against OP-ASG for its wrongful assessment of points,

ICI refers to roughly five specific acts or omissions of OP-ASG in assessing

points to bidders.  First, with regards

to Section I of the five-point test, ICI argues that SEB only subtracted 25

points out of 200 instead of subtracting all 200 points for Reid’s alleged

misbranding of its product in violation of applicable federal standards for

procurement.  We need not reach the issue

of whether Reid’s product was misbranded, whether Reid’s labeling violated

federal standards, or whether a 25-point subtraction is enough.  For the mootness inquiry, we need only ask

whether there is a reasonable expectation that the circumstance of an

opponent’s mislabeling and the SEB’s subtraction of points would occur again.  ICI’s arguments do not indicate that this

problem has occurred before or will occur again; no pattern of repetition has

been shown, nor does it seem that the mislabeling and point assessment are due

to a potentially repeatable, procedural event rather than a one-time event and

number assignation.  Finding no evidence

that this situation has occurred before, and no indication that it will occur

again, we find ICI’s arguments regarding Reid’s misbranding moot.

 

2. Product

Specifications

 

Second,

ICI argues that the SEB wrongfully deducted 33 points out of 300 from Section

II of its evaluation, regarding product specifications.  It appears that ICI did not place the words

“Grade A” on its carton, where Reid did, and ICI was penalized for this

failure.  ICI, however, itself indicates

that this deduction was a fluke rather than a recurring mistake, since in

previous years, no deduction was made for not including the “Grade A”

label.  We thus fail to find a reasonable

expectation of ICI’s again being penalized for failure to place “Grade A” on

its carton.

 

3. Failure to Perform

 

Third,

ICI argues that the SEB did not accurately assess Part III of the evaluation,

since it did not subtract points from Reid despite Reid’s failure to perform or

deliver during fifteen days of the 1999-2000 contract.  According to ICI, the SEB was not even

informed of Reid’s failure to perform or deliver.  The question is thus whether the SEB can be

reasonably expected to again misassess points for failure to perform due to

missing information.  ICI does not argue

that such a lapse of information in the selection process has happened before,

or is likely to happen again.  As to

whether such a point assessment is endemic to the process and by default,

repeatable, ICI seems to answer this question for us by introducing the

testimony of Tuna Hunkin, an SEB member for the 2000-2001 milk contract.  He stated, “we would have deducted points”

had they known of the failure.  Thus, the

assessment seems not to have been the result of an unfair process, but rather a

singular occurrence of a forgotten fact.

 

4. Point Scoring

 

Fourth,

ICI argues that Part IV of the test, the sample portion, was inappropriately

point-scored for all bidders. 

Specifically, ICI argues that the correct method of point-scoring is to

divide the 200 points into three sections of 67 points each, labeled “A,” “B,”

and “C.”  Russell Aab (“Aab”), a member

of the SEB in 2000-2001 who tallied the scores, apparently allocated all 200

points to the “C” category, entitled the “Taste Test Panel.”  It appears that there is no consensus among

the SEB as to how Section IV is correctly computed.  In testimony before the ALJ, Aab claimed that

all 200 points should be allocated to subsection C, while others such as Pat

Tervola and Tuna Hunkin claim that the method of dividing into three subsections

is correct.  It is not clear how Section

IV was evaluated in the past.

 

The

disparities in SEB members’ accounts tend to reveal inconsistent,

nontransparent, and therefore unpredictable point-scoring for Section IV of the

evaluations for procurement.  We thus

find that ICI may reasonably expect itself to be subject to agglomerated

point-scoring again.

 

5. Taste Test

 

Finally,

ICI wages a number of arguments against the taste test conducted by the

SEB.  First, ICI argues that the taste

test was a “preference test” of eight members of a taste panel selected by the

School Lunch Program department, rather than “an objective testing process that

is representative of the students island wide” based on a “comparative study

based on past data or statistics,” which is “scientifically tested for

reliability.”  ICI also argues that the

very use of a taste test is inappropriate. The issue confronting the Court for

mootness determination is thus whether ICI is reasonably expected to be subject

to a taste test, evaluated according to the preferences of a taste test panel,

again.

 

Since

the taste test by a taste test panel is, evidently, part of the annual

procedure adopted by OP-ASG for evaluating bids, we find that ICI has a

reasonable expectation of being subject to it again, in bids for milk

procurement contracts. 

 

Overall,

we find ICI’s appeal with respect to point assessments for misbranding, product

specification, and previous noncompliance incapable of repetition, and

therefore moot.  We further find that

ICI’s claims with respect to point scoring and the taste test are capable of

repetition, yet evading review.  We now

turn to the question of whether we are able to afford prospective relief for

any of these claims.

 

B.  Prospective

Relief

 

As

stated by the Ninth Circuit court in Campesinos, “if prospective relief

can still be afforded, the controversy is not moot.”  Id., 803 F.2d at 1068; see

also Associacao Dos Industries de Cordoaria, 828 F.Supp. at 984 (“The test

is whether a present controversy exists as to which effective relief may be

granted.”).  In this case, ICI asks for

us to set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to reverse

the order and award the milk contract to ICI, or else grant damages to ICI for

OP-ASG’s failure to properly award the contract.  Clearly, we cannot reverse OP-ASG’s choice

for the milk contract and award it to ICI because it has already expired.  The remaining question is thus whether we can

grant damages to ICI.

 

[8]

Federal law 5 U.S.C.A. § 706, the Administrative Procedures Act (“APA”),

defines the scope of judicial review for courts reviewing federal agency

action.  According to this provision,

courts subject to the APA may compel agency action or hold it unlawful on a

number of grounds.  No provision is made,

however, for granting monetary relief. 

Damages are thus simply not available under the APA. See, e.g.,

Williams v. Casey, 657 F.Supp. 921, 926 (S.D.N.Y. 1987).

 

[9-10]

The Legislature of American Samoa has adopted administrative procedures based

on an earlier model of the APA effectuating a similar scope of judicial

review.  Model

State Admin. Procedures Act (1961). 

Specifically, A.S.C.A. § 4.1040(a) states:

 

A

person who has exhausted all administrative remedies available within an agency

and who is aggrieved by a final decision in a contested case shall be entitled

to judicial review under this section and 4.1041 through 4.1044.

 

A.S.C.A.

§§ 4.1041 and 4.1044 limit judicial review to actions staying an agency’s

decision, reversing, or modifying the decision. 

Therefore, as in the federal case, pecuniary relief is not available in

judicial review of administrative proceedings in American Samoa.  We note, moreover, that A.S.C.A. § 4.1040(b)

allows for “the utilization of, or the scope of, judicial review available

under other means of review, redress, relief or trial de novo provided

by law.”  If a disappointed bidder wishes

for monetary relief, the proper course of action is not through appellate

review of administrative proceedings, but rather through such means as a trial de

novo.  See Kajima/Ray Wilson v.

Los Angeles County Metro. Transp. Auth., 82 Cal.Rptr.2d 348 (Cal.App.4th

1999).

 

Two

of ICI’s claims against OP-ASG and Reid may be capable of repetition, yet

evading review, yet prospective relief is simply not available for any of ICI’s

claimed grievances.  We thus must declare

the substance of ICI’s petition, moot.

 

II.  Failure to File a Timely Answer

 

[11]

ICI requested judgment for relief based on Reid’s failure to file a timely

answer to ICI’s initial petition to this Court. 

As basis for this claim, ICI mistakenly cited A.C.R. 15(b), which

provides that judgment be awarded where respondent fails to file an answer

within 20 days of petitioner’s application for enforcement of an order.  However, the applicable rule is A.C.R. 15(a),

which applies to petitions for review of the orders themselves

rather than enforcement thereof.  This

rule sets the standard that “[w]ithin 20 days after the petition is filed, the

respondent shall serve on the petitioner and file with the clerk an answer to

the petition.”  However, the rule does

not require the court to give judgment where the time schedule is not followed,

nor does it impose any other sanction.

 

ICI’s

mistake of law is noted, and its claim based thereupon, dismissed.

 

It

is so ordered.