7ASR3d64

AGAOLEATU CHARLIE TAUTOLO, FOR HIMSELF,

THOSE INDIVIDUALS SIMILARLY SITUATED AND

AS REPRESENTATIVE OF A CLASS ACTION,

AND DOES 1 THROUGH XXI, Plaintiffs,

 

v.

 

MATAGI RAY MAILO McMOORE,

AND SESE PEKO McMOORE, Defendants.

 

High Court of American Samoa

Trial

Division

 

CA

No. 98-02

 

February 20, 2003

 

 

[1] In evaluating standing, a court must accept as true all material

allegations of the complaint, and must construe the complaint in favor of the

complaining party.  If needed, a court

may also look beyond the pleadings themselves.

 

[2] The principles of standing articulated by the Federal courts generally apply to the

judiciary of this territory.

 

[3] To show standing, a party must demonstrate that it has suffered an

“injury in fact,” meaning an invasion of a legally protected interest that is

“concrete and particularized.”

 

[4] A claim simply alleging that two individuals, one a member of the

legislature, broke the law is insufficient to create standing in a civil suit

brought by a concerned citizen, even if the citizen is another legislative

member, where the citizen has failed to show an injury in fact.

 

[5] Citizens have no common law right to bring qui tam actions,

but must be granted the right through legislation.

 

[6] The Legislature of American Samoa has not granted citizens a right to

bring qui tam actions by statute.

 

Before RICHMOND, Associate Justice, MAMEA, Associate Judge,

and TUPUIVAO, Associate Judge.

 

Counsel: For Plaintiffs, Paul Miller

 For Defendants, Charles V. Ala`ilima

 

ORDER

GRANTING MOTION TO DIMISS

 

Plaintiff Agaoleatu Charlie Tautolo (“Agaoleatu”) has brought this action

on behalf of himself, and as representative of the class of similarly situated

individuals, against defendants Matagi Ray Mailo McMoore and Sese Peko McMoore

(collectively “the McMoores”).  The

McMoores have moved to dismiss the action on various grounds.  Because we agree with them that Agaoleatu

lacks standing, we dismiss the action and avoid discussion of their other

claims.[1]

 

Background

 

Agaoleatu’s complaint alleges that the McMoores

misappropriated and converted public monies in violation of Territorial laws

and procurement regulations. 

Furthermore, he claims these actions resulted in the McMoore’s unjust

enrichment.  He prays for a court order

demanding return of the monies—which would necessarily require a court ruling

that the McMoores’ conduct was unlawful—and an injunction barring the McMoores

from future violations of Territorial law and regulations.

 

Standard of

Review

 

[1] Agaoleatu’s complaint is replete with conclusions of

law entirely unsupported by specific facts. 

Nevertheless, the allegations necessary to determine our jurisdiction have

been sufficiently pled.  In evaluating

standing, we “must accept as true all material allegations of the complaint,

and must construe the complaint in favor of the complaining party.”  Graham v. Fed. Emergency Mgmt. Agency,

149 F.3d 597, 1001 (9th Cir. 1998) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).  If needed, we may look beyond the pleadings

themselves.  5A Charles Alan Wright & Arthur A. Miller, Federal Practice and

Procedure § 1350 (2d ed.

1990).  Furthermore, since standing “is a

jurisdictional element that must be satisfied prior to class certification,” LaDuke v. Nelson,

762 F.2d 2318, 1325 (9th Cir. 1985), our decision should not be

read as an endorsement, or a denial, of class certification.  Our disposition precludes us from reaching that issue.

 

A.  Standing

 

[2-3] The principles of standing articulated by the Federal courts “generally apply to the

judiciary of this territory.” Mulitauaopele v. Togafau, 26

A.S.R.2d 52, 53 (Trial Div. 1954).  We

need not rehash the long list of requirements

to establish standing.  Suffice it to

say, a party must demonstrate that it has suffered an “‘injury in fact,” by

which we mean an invasion of a legally protected interest that is ‘concrete and

particularized.’”  Id. (quoting Ne.

Fla. Chapter of the Ass’n Gen.

Contractors of Am. v. Jacksonville,

Fla., 508 U.S. 656, 663 (1993)). 

Agaoleatu has not met this burden.

 

Agaoleatu has brought this action on

behalf of himself and the class of persons which the “Faipule intended as beneficiaries of Fono money.”[2]  (Pl.’s Compl. ¶ 9).  By this, Agaoleatu seems to mean that he

represents the other House members—they being the potential beneficiaries of

money which was budgeted specifically for use by the Fono, e.g., the Fono’s equipment or travel budget.  Indeed, he asks that we order the McMoores to

“pay or return [the money] to the budgeted appropriations fund of the

Fono.”  Id.

 

Read literally, Agaoleatu’s complaint

fails to allege a cognizable injury.  Any

money budgeted specifically for the Fono’s use is not property of the Fono or

the Legislators; it is not, as Agaoleatu puts it, “Fono money.”  This hubristic claim has no basis in law,

fact, or policy.  Instead, like all the money

used to support the American Samoa Government (“the Government”) and its agents

and agencies, if it belongs to anyone, it belongs to the people of American

Samoa—for it is they who are the true beneficiaries of the Government’s

operations.  The Fono’s budget exists so

that the Legislators can better serve the people and not so that the

Legislators may profit from their position. 

The old adage comes to mind that ours is a “government of the people, by the people, for the people.”  Agaoleatu’s complaint mocks this ideal.

 

[4] On the other hand, if the allegations, serious as

they are, were to be proven true, the McMoores’ conduct cannot be considered

benign.  If true, the McMoores’ conduct

is abstractly injurious: they have violated the laws of the Territory,

defrauded the Government, and breached the trust of our whole society.  Therefore, construing the Complaint in favor

of Agaoleatu, we deem this to be the injury he claims.  However, the breadth of these alleged

transgressions necessarily precludes Agaoleatu from claiming a specific injury.  His claim is a general grievance that two

individuals, one being the Speaker of the House, broke the law.  Yet a claim “to have the Government act in

accordance with law is not sufficient, standing alone, to confer jurisdiction

on [this Court.]”  Allen v. Wright, 468 U.S. 737, 754 (1984).

 

That is not to say that this Court could never recognize this type of

claim.  At the Federal level, for

example, the alleged conduct would fall under the umbrella of § 3729 of the

False Claims Act, 31 U.S.C.A. §§ 3729-3731. 

Under 31 U.S.C.A. § 3730(a), the Attorney General of the United States,

on behalf of the United States Government, may bring a civil action to recover

money from any person who has defrauded that Government.  Furthermore, under 31 U.S.C.A. § 3730(b)(1),

the U.S. Congress has conferred standing on private persons to prosecute these

claims on behalf of the United States Government.  These suits, known as qui tam actions,

reflect a policy decision “to enlist the aid of the citizenry in combating the

rising problem of ‘sophisticated and widespread fraud’” within the federal

government.  United States ex rel.

Kelly v. Boeing Co., 9 F.3d

743, 745 (9th Cir. 1993); United States

ex rel. Kreindler v. United Techs., 985 F.2d 1148, 1153-55 (2d Cir.

1993).

 

[5-6] But such a statute, while

constitutional, underscores the fact that absent legislation a private person

would have no recourse in the courts. 

“No common law right to maintain qui tam actions exists and

authority to file such actions must be found in legislation.”  United States ex rel. Burnette v. Driving

Hawk, 587 F.2d 23,

24 (8th Cir. 1978).  And because a member

of the Legislature of American Samoa is also subject to standing requirements,

the member cannot benefit from the status of a legislator; in the context of

this case, the member is like any other person. 

See Boehner v. Anderson, 30 F.3d 156, 159-60

(D.C. Cir. 1994).  Agaoleatu’s downfall,

then, is the lack of an equivalent of the Federal False Claims Act enacted in

American Samoa.

 

Finally, we recognize that we have

before conferred standing on members of our Legislature.  See generally The Senate v. Lutali, 26

A.S.R.2d 125 (Trial Div. 1994).  That

case, however, and others like it, is distinguishable in that there the

Legislators had proven that they suffered an injury in fact—dilution of their

voting power.  Id. at 127-28; Michel

v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994); Vander Jagt v. O’Neil,

699 F.2d 1166, 1168-71 (D.C. Cir. 1983); Kennedy

v. Sampson, 511 F.2d 430, 433 (D.C. Cir. 1974).[3]  We reiterate that Agaoleatu has shown no like

injury in this case.

 

Conclusion

 

Because Agaoleatu lacks standing, we

grant the motion to dismiss the suit for want of jurisdiction.

 

It is so ordered.

 

**********