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39
2 CLER\~ OfCOURT
Emf Q: COURT
3
4 By-_ 5 IN THE SUPERIOR COURT OF GUAM 6
7 7 THOMAS J.
THOMAS J. FISHER, as Taxpayer and in his CIVIL CASE NO.
no. CV0392-23
CV0392-23
Official Capacity as a Senator of the 37th 8 Guam Legislature, 9 Plaintiff,
10 10 v.
V.
11 11 IGNACIO IGNACIO C. C. SANTOS, in his official 12 12 capacity as a Government Government of
of Guam Federal
Administrator and in his private Programs Administrator 13 13 capacity, and DOES 1-5, 14 Defendants.
15 15 DECISION AND ORDER 16 16 IGNACIO c. IGNACIO C.SANTOS, SANTOS,ininhis
his official
official
17 capacity as a Government of Guam Guam Federal
Programs Administrator Programs Administrator and and in
in his private
18 18 capacity,
19 19 Third-Party Plaintiff,
20 20 v.
V.
21 JON FERNANDEZ, JON FERNANDEZ, FRANK COOPER- NURSE,in NURSE, inhis his individual
individual capacity Chief 22 22 Auditor of Auditor of GDOE;
GDOE;K. K.ERIK
ERIK SW ANSON,
SWANSON,
23 in his official Ph.D., in capacity as official capacity as the Superintendent of Superintendent of the Guam Department Department of
of
24 24 Education, and Education, andthe theGOVERNMENT
GOVERNMENT OF
GUAM, 25
26 Third-Party Defendants.
Decision and Decision and Order Civil Case No. CV0392-23 Civil
This matter
matter came
came before
before the
the Honorable
Honorable Arthur
Arthur R. Barcinas on
R. Barcinas on May 15, 2025, May 15, 2025, for aa
1
2 hearing on aa Motion hearing on Motion to to Dismiss
Dismiss under
underGRCP
GRCP 12(b)(6),
l 2(b)(6), or, Alternatively, Motion Motion for
for Summary
Summary
3 Judgment("MSJ")
Judgment ("MSJ") or Rule 56 56 Motion
Motion filed
filed by
by Defendant
Defendant Ignacio
Ignacio C.
C. Santos,
Santos, in his official
4 capacity as a Government of Guam Guam Federal
Federal Programs Administrator Administrator and
and in his private capacity 5 ("Defendant"),on ("Defendant"), April2,2,2025.
onApril 2025. Attorney AttorneyEdwin
EdwinJ.J. Torres
Torreswas
waspresent
present on
on behalf of
ofDefendant,
Defendant,
6
and Attorney Rachel and Attorney Rachel Taimanao-Ayuyu was present Taimanao-Ayuyu was present on on behalf
behalf of Plaintiff
Plaintiff Thomas
Thomas J.
J. Fisher
Fisher
7
8 ("Plaintiff").
("Plaintiff').Also Alsopresent
presentwere
wereDeputy
DeputyAttorney
AttorneyGeneral
GeneralJoseph
Joseph Guthrie
Guthrie for
for the
the Government of
9 Guam, Guam, Attorney Vanessa L. Williams Williams for
forThird-Party
Third-PartyDefendant
DefendantJon
Jon Fernandez,
Fernandez, and
and Attorney
10 10 Matthew Matthew E. Wolff Wolfffor
forThird-Party
Third-PartyDefendants
DefendantsErik
ErikSwanson
Swansonand
andFranklin
Franklin Cooper-Nurse.
Cooper-Nurse.
11 II Having taken taken the
the matter
matter under
under advisement,
advisement, the Court
Court GRANTS the Motion
Motion for
for Summary
Summary
12
13 13 Judgmentin Judgment infavor favor of
of Defendant.
Defendant.
14 BACKGROUND
15 15 On July 5, 2023,
July 5, 2023,Plaintiff
Plaintiff Thomas
Thomas J.J. Fisher
Fisher ("Fisher"),
("Fisher"), filed
filedaaComplaint
Complaintagainst
against Santos
Santos
16 as a taxpayer and in taxpayer and in his
his official capacity
capacity as
as aa Senator
Senator of
of the
the 37th
37th Guam
Guam Legislature.
Legislature. In the
17 Complaint, Complaint, Fisher alleged that that Santos, as the
Santos, as the Federal
Federal Programs
Programs Administrator
Administrator for the
the Guam
Guam
18 18
19 Department of Education Department of Education("GDOE"), ("GDOE"), had
had failed
failedtotoproperly
properlydischarge
dischargehis
his duties
duties in
in regard
regard to the
20 management of public management of public monies monies after overtime
overtime payments were
were issued
issuedto
to GDOE
GDOE employees.
21 On On August 15,
15, 2023, Defendant filed 2023, Defendant filed the the MSJ,
MSJ, arguing that Plaintiffs arguing that Plaintiffs taxpayer taxpayer action
action
22 fails as as aa matter
matter of
of law
law because
because there
there is
is no
no evidence
evidence that
that Defendant
Defendant "expended"
"expended" funds
funds as
as
23 23
24 required required under under 55 GCA
GCA §§7103.
7103. Defendant
Defendant asserts
asserts that
that he
he merely
merely certified
certifiedthat
that the
the expenditures
expenditures
25 were eligible eligiblefor
forfederal
federalreimbursement
reimbursement but
but lacked
lacked authority
authority to actually
actually approve or
or release
release any
any
26 funds. The motion funds. The motion was was filed
tiled together
together with
with a Statement
Statementof
of Issues
Issues("SOI")
("SOI") and
and aa Statement
Statement of
27 Undisputed MaterialFacts Undisputed Material Facts("SUMF").
("SUMF").
28 28
Page 2 of7
of 7
Decision and Decision and Order Civil Case No. CV0392-23 Civil
On October 3, 2023,
2023, Plaintiff filed an opposition, asserting that findings findings by the Office of l
2 raised disputed issues of fact concerning Defendant's role in the Public Accountability ("OPA") raised
3 disbursement process.
process. Plaintiff further further asserted
asserted that summary judgment was was premature
premature absent
absent
4 discovery and sought leave to conduct discovery conduct discovery under GRCP 56(d).
56(d). On
On October
October 31,
31, 2023,
2023,
5 Defendant filed Defendant filed his his reply
reply to the
the opposition
opposition as part of
of an
an omnibus
omnibus response.
response. In the
the reply,
reply,
6
Defendant argued that Defendant argued that Plaintiflf's reliance on Plaintiff's reliance on the the OPA findings
findings was
was misplaced
misplaced because
because the
7
8 findings never alleged alleged that Defendant
Defendant had
had expenditure
expenditure authority.
authority. Defendant further further noted that
9 Plaintiff Plaintiff failed to adhere to the GRCP 56(d) requirement that he must identify the specific facts 10 he wishes wishes to to elicit
elicit inin discovery,
discovery, and
and Plaintiff
Plaintiff had
had never
never previously
previously attempted
attempted to
to conduct
conduct
11 discovery or even requested Defendant to engage in aa prerequisite Rule 26(f)
26(t) conference.
12 12
13 13 12, 2024,
On April 12, 2024, upon
upon Plaintiff's GRCP56(d)
Plaintiffs GRCP 56(d) application application for
for time
time to
to take
take discovery,
discovery,
14 14 the Court the Court granted granted aa continuance
continuance on the
the MSJ,
MSJ, preserving
preserving Defendant's
Defendant's summary
summary judgment
judgment
15 15 argument pending completion of discovery. On May May 9,
9, 2024,
2024, the Court set a dispositive-motion 16 cutoff for November 22, 22, 2024,
2024, and Plaintiff sought no extensions extensions and
and conducted
conducted no written
written
17 17
discovery. On December 10, 2024, 2024, Defendant
Defendant moved
moved to
to set
set deadlines
deadlines for
for Plaintiff's opposition Plaintiffs opposition
18 18
19 and Defendant's reply on the pending MSJ.
20 On February February 18,
18, 2025,
2025, the Court
Court heard
heard arguments
arguments on Defendant's
Defendant's Motion
Motion to Set
Set
21 Briefing Schedule on Motion for Summary Judgment ("Briefing Motion"), and Plaintiff Plaintiff did not
22 argue against the Briefing Motion at hearing or file argue file an an opposition.
opposition. On
On February
February 20,
20, 2025,
2025, the
23
Court granted Defendant's Briefing Motion Motion and
and scheduled
scheduled Plaintiff'
Plaintiff's opposition to the MSJ to 24
25 be due April 1, 2025, 2025, with
with Defendant's reply to to be
be due
due on April 15,
15, 2025. Plaintiff
Plaintiff failed to file
26 an opposition by the deadline, and on April April 21,
21, 2025,
2025, Defendant filed a Request Request for
for Court to
27 Consider Facts Undisputed and Grant Summary Judgment ("Request").
28
Page 3 of
of7
Decision and Decision and Order Civil Case No. CV0392-23 Civil
On May 15,
15, 2025, the Court took the the matter
matter under
under advisement.
1
2 DISCUSSION
3 I. Legal Standard 4 Guam law,
Under Guam law, a party
party may move for summary judgment, identifying each claim or 5 defense, the part of each claim or defense, on which defense, or the which summary summary judgment
judgment is
is sought.
sought. GRCP
6
7 56(a). However, summary 56(a). However, summary judgment judgment is only proper
proper ifif the
the pleadings,
pleadings, depositions,
depositions, answers
answers to
8 interrogatories, and admissions interrogatories, and admissionson on file,
file, together
together with
with any
any affidavits,
affidavits, show
show that
that there
there is
is no
9 genuine issue as to any material material fact and that the moving party is entitled to a judgment as a 10 10 Matt oflaw. matt of law. Guam Resorts, Inc. v. G. C. Corp., G.C. Corp., 2013 Guam 18 ,i 36. "In rendering a decision on 18 ii
111I a motion for summary judgment, the court draw inferences court must draw inferences and and view
view the
the evidence
evidence in a
12
13 13 light most favorable to the non-moving party." Id.
14 14 If the movant can demonstrate that there are are no genuine issues of material fact, the non-
15 15 movant cannot merely rely on allegations contained contained in the
the pleadings,
pleadings, but
but must
must produce
produce at least
16 16 some significant significant probative
probative evidence tending to to support
support the pleadings. Bank of of Guam v.
v. Flores,
Flores,
17 17 2004 Guam 25 ,i1i7.7.AAmaterial materialfact
fact isis one
one that
that isis relevant
relevant to
to an
an element
element of aa claim
claim or defense and
18 18
19 19 whose existence whose might affect existence might affect the the outcome
outcome of the suit.
suit. Id.1l 8. The
Id. ,i 8. The mere existence existence of some
some
20 alleged factual factual dispute
dispute between
between the parties
parties will not
not defeat
defeat an
an otherwise
otherwise properly
properly supported
supported
21 motion for summary judgment;
judgment, the requirement is there be no genuine issue of of material fact. Id.
22 "As to to materiality, the substantive law will define which which facts
facts are
are material.
material. Only
Only disputes
disputes over
23
24 facts facts that might affect the outcome outcome of the suit under the governing law will properly properly preclude
preclude
25 Id.
the entry of summary judgment." Id.
26 26 The Court's ultimate inquiry is is to
to determine
determine whether
whether the specific facts facts set forth by the
27 27 non-movant, coupled with undisputed background or contextual facts, are such that a rational or 28
Page Page 44 of7
off
Decision and Decision and Order Civil Case Civil Case No. CV0392-23
reasonable jury reasonable jury might might return
returnaaverdict
verdict in
in the
the non-movant's
non-movant'sfavor
favor based
based on
on that
thatevidence." Id. ,r
evidence." Id. ii
1
2 Pursuant totoGRCP 7. Pursuant GRCP 56(e), 56(e), if aa party
party fails
fails to
to properly
properly support
support an assertion
assertionof
of fact
fact or
or fails to
3 address another properly address anotherparty's assertionof party'sassertion offact
factas requiredby
asrequired byRule
Rule56(c),
56(c), the
the Court
Courtmay:
may: (1)
(1)
4 give an give an opportunity opportunity to properly
properly support
support or address
address the
the fact;
fact, (2) consider
consider the
the fact
fact undisputed
undisputed for
5 purposes of purposes motion; (3)
of the motion, (3)grant
grant summary
summary judgment
judgment ififthe
the motion
motionand
andsupporting
supporting materials
materials -
6
7 including the including the facts facts considered
considered undisputed
undisputed- -show
show that
thatthe
themovant
movantisisentitled
entitledtotoit;
it, or
or (4) issue
(4) issue
8 any other appropriate order.
9 Pursuant to55GCA Pursuant to GCA §§ 7103, 7103, the
the relevant
relevant facts
facts must
must sufficiently
sufficientlydemonstrate
demonstrate that
that a public
a public
10 officer"unlawfully officer "unlawfullyexpended, expended,or
orcaused
caused to
to be
be expended,"
expended," public
public funds.
funds.
11
12 12 II. 11. There is There is No Genuine
Genuine Issue
Issue of Material Fact
Fact and
and Plaintiff
Plaintiff Failed to File An Failed to
113 Opposition Within the
the Court's
Court's Deadline.
14
15 15 Upon review Upon ofthe
review of therecord,
record, there
there does
does not
not appear
appear to
to be
be any
any genuine
genuine dispute
dispute of material
material
16 preclude summary facts that would preclude summary judgment, judgment,as
as Plaintiff has neither
Plaintiff has neither opposed opposed the
the motion
motion for
17 17 summary judgment summary judgmentnor norsufficiently
sufficiently disputed
disputedDefendant's
Defendant'sSUMF.
SUMF. The Court granted
granted Plaintiff
Plaintiff a
18 18 continuance continuance totoconduct conductdiscovery,
discovery,and
andPlaintiff
Plaintiff failed
failed to proffer
proffer any
any discovery
discovery or
or schedule
schedule any
any
19 19
20 20 dispositions to support dispositions to his position.
support his position. Further, Further,after
afterthe
theCourt
Courtgave
gave Plaintiff
Plaintiff additional time to additional time
21 oppose the Motion, oppose the Motion, Plaintiff Plaintiff failed to file
file any
any opposition
opposition by
by the
the Court's
Court's deadline on April deadline on April 1,
1,
22 22 2025.
23 23 Pursuant totoGRCP Pursuant GRCP 56(e)(3), Plaintiffsfailure 56(e)(3), Plaintiff"s failuretotoproperly properlyaddress
address Defendant's
Defendant'sassertions
assertions
24 24 of offact fact permit permit the
the Court
Court to deem
deem Defendant's
Defendant's SUMF
SUMFundisputed
undisputed for
for the
the purposes of the motion, purposes of
25 25
26 and the the Court finds that Defendant's declaration declaration and
and attached
attached exhibits sufficiently sufficiently support
support the
27 material facts as set set forth
forth in
in the
the SUMF.
SUMF.
28
Page Page 55of7
off
Decision and Order Civil Case No. CV0392-23
III. Evidence of Defendant's Expenditure of Funds 1
2 Upon review of of the record, the undisputed facts demonstrate that facts demonstrate that Defendant's Defendant's role
role was
3 limited to certifying the the allowability of
of federal reimbursement based on guidance from from the
the U.S.
4 Dept. Dept. of Education.
Education. Per
Per the
the undisputed
undisputed facts,
facts, the
the actual
actual approval
approval and disbursement of funds funds was
was
5 within the
solely within the Powers powers of
of the Superintendent
Superintendent of
of Education
Education and the Deputy Superintendent of 6
Finance, as confirmed by Guam Department of Education's standard operating procedures and a 7
8 letter from the Office 2008 letter the Attorney Office of the Attorney General to the the U.S. Dept. Education. See Dept. of Education. See SUMF
9 in 55-72. 10 10 Further, the Further, the OP
OPAA findings
findings cited by Plaintiff Plaintiff raise concerns about about segregation of
of duties,
11 11 but do not expressly expressly establish
establish that
that Defendant
Defendant expended or
or approved
approved expenditures
expenditures of public
12 12
113 funds. At most, the findings funds. findings reflect disagreement with the internal controls in place during the
14 COVID-19 emergency. Thus, Thus, Plaintiff"s
Plaintiffs exclusive reliance on on the
the OPA
OPA findings
findings to
to support
support his
15 position is legally legally insufficient to establish establish the
the elements
elements of
of aa taxpayer
taxpayer claim
claim under
under 55 GCA
GCA §§
15 position is insufficient to 16 7103.
17 17 Viewing the record in the light light most
most favorable
favorable to
to Plaintiff,
Plaintiff, the Court finds finds no genuine
18
19 19 issue issue of of material
material fact,
fact, and
and the
the undisputed
undisputed facts
facts establish
establish that
that Defendant
Defendant lacked authority authority to
20 20 expend funds the actual funds and that the actual expenditure expenditure decisions
decisions were made by the Guam Guam Department of
of
21 Education officers authorized Education officers authorized to to do
do so.
so. Accordingly,
Accordingly, Plaintiff cannot cannot prevail
prevail on
on his
his claim
claim as a
22 matter of law.
23
24 24
25
26
27
28
Page 66 of7
off
Decision and Order Civil Case No.
No. CV0392-23
CONCLUSION
1
2 Based on the foregoing, the Court hereby GRANTS Defendant's Motion for Summary
3 3 Judgment, and ORDERS that judgment judgment be entered in favor of Defendant Defendant and
and against
against Plaintiff.
Plaintiff.
4
5
6 A-UG
IT IS SO ORDERED - - -AMG 22lZ 2025 -------
-----
7
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·::;::. ·- - -- . - ..
9 HONGRABLEARTHUR HONQRABLKARTHUR R. R. BARCINAS Judge,§superfor Judge, :~uperi'or Court
Court of
of Guam
Guam
10 10 :::~:; __ -~ . /-_ .
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