Fisher v. Santos

• Court: Superior Court of Guam
• Decided: February 19, 2025
• Docket: CV0392-23
• Status: Unknown

Opinion

FlNIL LElJ ala =p-;IRi6l§€'Qo1;RT ::! :PER10R COURT iii? GJAM OF GUAM 1 2825 FEB1919 rii 2025 FEB FH ~: Ll:E7 27 2 CLERK UF CLERK Of COURT COURT 3

IN THE SUPERIOR COURT OF GUAM 6

7 THOMAS J. FISHER, as Taxpayer and in his CIVIL CASE NO. no. CV0392-23 CV0392-23 8 8 Official Capacity as a Senator of of the 37th Guam Legislature, 9

10 Plaintiff,

II v.

12 12

IGNACIO IGNACIO C. C. SANTOS, SANTOS, inin his official 13 13 capacity as as aa Government Government of Guam Federal 14 Programs Administrator Administrator and inin his private capacity, and DOES DOES 1~5, 1-5, 15 15

Defendants. DECISION AND ORDER 16 16 Re: Third-Party Third-Party Defendant DefendantJon Jon Fematrdez's Femandez's 17 17 Motion Motion to to Dismiss Dismiss Complaint and and Third-Party IGNACIO IGNACIO c. C. SANTOS, SANTOS, inin his his official Complaint Complaint 18 capacity as as aa Government Government of Guam Federal Programs Administrator and in his private 19 capacity, 20 Third-Party Plaintiff, 21 v. 22

23 JON FERNANDEZ, FRANK COOPER- 24 NURSE, in his individual capacity Chief Chief Auditor ofGDOE; ofGDOE, K. ERIK SWANSON, 25 Ph.D., in his official capacity as the Superintendent ofof the Guam Department of of 26 26 Education, and and the GOVERNMENT GOVERNMENT OF 27 GUAM,

28 Third-Party Third-Party Defendants. Decision and and Order Re: Third-Party Order Re: Third-Party Defendant Fernandez's Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

This matter came before the came before the Honorable Arthur Arthur R. R. Barcinas Barcinas on on November 19, 19, 2024, for a l

2 hearing on, inter alia, Third-Party Defendant Defendant Jon Jon Fernandez's Fernandez's ("Fernandez") Motion to Dismiss Motion to Dismiss

3 Complaint and Third-Party TI1ird-Party Complaint. ("Motion") ("Motion")Hled filed on onJuly July 29, 29, 2024. 2024. The TI1e Motion was filed

4 to request dismissal of request dismissal of the Complaint filed filed by byThomas Thomas Fisher Fisher ("Fisher"), ("Fisher"), as as aa taxpayer taxpayer and and in 5 his official official capacity capacity as as aa Senator Senator of ofthe the 37th 37thGuam GuamLegislature, Legislature,on onJuly July5,5,2023, 2023,and andt11e Third- the Third- 6 Party Complaint Complaint filed by by Defendant/Third-Party Defendantffi1ird-Party Plaintiff Plaintiff Ignacio Ignacio C. C. Santos Santos ("Santos"), ("Santos"), in in his his 7

personal capacity and personal capacity and his official official capacity capacity as as aa Gov ernment of Government ofGuam GuamFederal Federal Programs Programs 8

9 Administrator, on May 2, Administrator, 2, 2024. 2024. At Atthe thehearing, hearing, Attorney AttorneyVanessa Vanessa L.L.WWilliams illiams appeared appeared on

10 behalf behalf of of Fernandez, Fernandez, and Santos was present, present, represented representedby byAttorney Attorney Edwin Edwin J. J. Torres. Torres. II BACKGROUND 12 12 On July 5, 5, 2023, 2023, Plaintiff PlaintiffThomas Thomas J. J. Fisher Fisher ("Fisher"), filed filed aa Complaint Complaint against against Santos Santos 13 as as a taxpayer and in his taxpayer and his official official capacity capacity as as aa Senator Senator of the the 37th 37th Guam Guam Legislature. in the Legislature. In [14 4

Complaint, Complaint, Fisher Fisher alleged alleged that Santos, as the Federal Santos, as Programs Administrator Federal Programs Administrator for the Guam 15

16 16 Department of of Education Education ("GDOE"), ("GDOE"),had hadfailed failedtotoproperly properlydischarge discharge his his duties duties in in regard regard ro to the

17 management management of public monies after overtime payments were issued issued to to GDOE GDOE employees. employees. 18 On May May 2,2, 2024, 2024, Santos Santos filed filed his his Verified Verified Answer, Answer, as as well well as as aa Third-Party Third-Party Complaint Complaint 19 against Third-Party Defendants Jon Fernandez, against Third-Party Fernandez; Kenneth Swanson, Swanson, in his official official capacity capacity as as 20 Superintendent of GDOE; Superintendent of GDOE, Franklin Cooper-Nurse, Cooper-Nurse, in in his his individual individual capacity capacity as asChief Chief Auditor Auditor of of 21

GDOE, GDOE; and and the the Government of Guam. In In the the Third-Party Third-Party Complaint, Complaint, Santos Santos alleged alleged that he was 22

23 not at at fault fault because he only because he only had had authority to certify certify the the availability availability of of funds, not authority authority over over

24 the actual expenditure of actual expenditure of GDOE GDOE funds, funds; Santos Santos alleged alleged instead instead that that expenditure expenditure authority lay 25 with Fernandez with and Cooper-Nurse, Fernandez and Cooper-Nurse, adding "ifany adding that "if any party party isis responsible responsible for the the expenditure expenditure 26 of funds, funds, Guam Guam law law states states that it is is the the superintendent of GDOE." superintendent of GDOE." Third Third-Party Comal., W 19, Comp!.,~~ 19, 27 23. In In the the Third-Party Third-Party Complaint, Complaint, Santos Santos further alleged and GDOE alleged that Swanson and GDOE had declined 28

Page 2 of 16 Page 16 Decision and and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

to request the Office of request the ofthe the Attorney AttorneyGeneral General ("OAG") ("OAG")totorepresent represent Santos Santos in in his his official I

2 capacity, i11 capacity, allegedviolation in alleged violation of of 5 5 GCA GCA§§§§7111 7111and and30108, 30108;Santos Santosthen then requested requested the the Court Court to to

3 enter a declaration as to whether Swanson and the Government of Guam and the Guam must must pay pay his attorneys'

4 ifhe fees if he is is exonerated. exonerated. 5 On July July 29, 2024, 2024, Attorney Williams Williams filed filed the the instant instant Motion on behalf of Fernandez. Fernandez. In 6 the Motion, Fernandez the Fernandez requests dismissalof requests dismissal of Fisher's Fisher's Complaint Complaint under under Guam Guam Rules Rules of of Civil 7

Procedure ("GRCP") Procedure 12(b)(6)for ("GRCP") 12(b)(6) forfailure failuretotostate statea claim a claimupon uponwhich whichrelief reliefmay maybe begranted granted, 8

9 arguing that claims arguing that claims based basedon on violations violationsof of Title 4, Chapter Chapter 4 of of the the Guam Guam Code Code Annotated Annotated

10 ("GCA") (''GCA")should shouldbebedismissed dismissedbecause becausethe thestatute statuteisisallegedly allegedlyunconstitutionally unconstitutionally vague. vague. II Fernandez then argues arguesfor for dismissal dismissalof of the the Third-Party Third-PartyComplaint Complaintunder underGRCP GRCP12(b)(l), l2(b)(l), Fernandez then 12 12 arguing that Santos arguing that Santosmay may not not avail avail himself himselfof of 7 7 GCA GCA §§7103 7103 (the (the "Taxpayer "TaxpayerStatute") Statute") because because 13 13 Santos allegedly lacks Santos allegedly lacks both both statutory statutory and and prudential prudential standing. standing. Finally, Finally, Fernandez Fernandez argues argues for 14

dismissal of the dismissal of the Third-Party Third-Party Complaint Complaint under GRCP l12(b)(6), under GRCP 2(b)(6), on on the thegrounds grounds that that there there is is 15 15

16 allegedly allegedly no no statutory statutory or common common law law right right of ofcontribution contribution for for the the enforcement enforcement of of proper proper

17 government spending spending.. 18 On On August August 23, 23, 2024, 2024, Santos Santos filed filed his his opposition, opposition, arguing arguing that that Fernandez may not invoke 19 19 the the protections protections of of sovereign sovereign immunity immunity because because Santos Santos is allegedly allegedly suing suing Fernandez Fernandez in in his his 20 individual individual capacity capacity for for contribution contribution for for aa judgment judgment pursuant ro55GCA pursuant to GCA §§ 7103. 7103. Santos Santos further further 21

argues that he argues that he only only needs needs to to provide provide the Court with the Court withsufficient sufficientallegations allegationstotosupport support that that he he has has 22

23 standing to sue standing to sue for contribution, and he contribution, and he does not need need to to provide provide support support for forclaims claims under under 55

24 GCA GCA §§7103 7103because becausehe heisisnot notseeking seekingcontribution contribution from from Fernandez Fernandez under under §§ 7103. 7103. Santos Santos 25 asserts that he asserts that he has hassufficiently sufficiently alleged enough enough facts facts to to support support his standing for for contribution, contribution, and and 26 that that by seeking seeking contribution, he isis enforcing contribution, he enforcing his his individual individual right right of of recovery recovery from the the third third 27 parties he alleges parties he alleges are are rightfully rightfully at at fault, fault, which whichSantos Santos asserts asserts meets meets the the requirements requirements of 28

Page 3 of 16 Page 16 Decision and and Order Re: Third-Party Order Re: Third-Party Defendant Fernandez's Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

further asserts that he has alleged prudential standing. Santos further alleged enough facts to support support aa claim for l

2 contribution from Fernandez under GRCP l4(a). under GRCP 14(a).On Onthe thedismissal dismissal of ofthe the original original Complaint for

3J unconstitutiona unconstitutional lvagueness, va gueness,Santos Sa ntostakes ta kesno no position, position, as a s he aasserts sser ts tha that his his cla ims aare claims r

4 claims not brought under contribution claims under the the Taxpayer Taxpayer Statute. 5 September 6, On September 6, 2024, 2024, Fernandez Fernandez filed filed his his Reply. Reply. Fernandez Fernandez first first argues argues that Santos Santos 6 not be should not be allowed allowed to to bring bring aa claim claim for contribution for his his "intentional "intentional and and willful willful conduct." conduct." 7

Reply, Reply, at at 2. 2. Fernandez Fernandez then then re-asserts that Santos re-asserts that Santos has has no no standing standing to to enforce enforce 55 GCA GCA §§ 7103. 7103. 8

9 Finally, Fernandez asserts Finally, Fernandez asserts that that his his argument argument to to dismiss the Complaint was opposed by neither neither

10 10 Fisher nor Santos, Fisher nor Santos, and and reasserts reasserts that that Title Title4,4, Chapter Chapter 14 14 of of the the GCA is too vague vague to provide II adequate notice of Fishery Fisher's claim. claim. 12 The Court took the matter matter under under advisement on November November 19, 19, 2024. 13 DISCUSSION 14 14

I. Legal Standard 15

16 16 Under Guam law, law, "[a]t "[a]t any time after after the commencement commencement of of the the action action a defending

17 party, as a third-party plaintiff, may cause a summons and complaint to be served upon aa person 18 not aa party party to to the the action, action, who whoisisorormay maybe beliable liable to to the the third-party third-party plaintiff plaintifffor for all all or part of the 19 plaintiff's claim claim against against the third-party third-party plaintiff." plaintiff." GRCP 14(a). 14(a). "The person person served served with the 20 summons and and third-party third-party complaint complaint ... shall make any defenses shall make defenses to to the the third-party third-party plaintiff's plaintiffs 21

claim as provided claim as provided in in Rule Rule 12 12... .... The third-party defendant defendant may may assert assert against against the plaintiff any 22

23 defenses which the the third-party plaintiff plaintiff has to the plaintiff's plaintiff's claim." claim." Id.

24 Guam law law allows allows that that certain certain defenses defenses to to aa claim claim for for relief may be made by motion, relief may motion, 25 including: including: "(l) lack lack of of jurisdiction jurisdiction over over the the subject subject matter, matter, ... [and] (6) failure failure to state a claim 26 upon which relief can be granted." GRCP 12(b). 12(b). 27

Page 4 of 16 I Decision and and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

l

2 2 GRCPl2(b)(l) a. GRCP l2(b)(l)- -Subject Subject Matter Matter Jurisdiction Jurisdiction

3 asserts that Fernandez asserts that the the Court subject matter Court lacks subject matter jurisdiction jurisdiction over the Third-Party

4 Complaint based based on a lack lack of ofstanding. "Ifa aparty standing. "If partydoes doesnot nothave have standing standing to to bring bring aa claim, claim, a 5 court has court no subject has no subject matter matter jurisdiction to hear hear the claim." United Pac. Islanders' Islanders' Corp. v. C01p. v. 6 6 Cyfred, Cyfred, Ltd., 2017 ,r l15. l Guam 66 11 "Although we 5. "Although we are are not not bound bound by bythe the standing standingrequirements requirements 7 7

applicable to federal applicable to courts of limited federal courts limited jurisdiction under Article jurisdiction under Article III III of of the the United United States States 8

9 Constitution, we we have have repeatedly repeatedly found found that that the the traditional traditionalstanding standingrequirements requirements expressed expressed in

110 Article Article III III nevertheless nevertheless apply apply to to claims claims asserted asserted in Guam's courts." Won Pat courts." In re A.B. Won PatI/1t'l Int'/ 11 11 Airport Auth., Auth., Guam, Guam, 2019 2019 Guam ,r 16 (internal Guam 66 11 (internal quotations quotations omitted). omitted). This constitutional constitutional 12 standing is aa threshold threshold jurisdictional jurisdictionalmatter. matter. Id. Id. "TO "To establish establish constitutional constitutional standing, standing, a party party 13 13 must show: must show: (I) it has has suffered an an injury injury in in fact, fact; (2) that the (2) that the injury injury can can be be fairly fairly traced traced to to the the 14 14

challenged action taken by the defendant, defendant; and (3) that it is likely likely and and beyond beyond mere mere speculation 15

16 16 that that a favorable favorable decision decision will willremedy remedythe theinjury injurysustained." sustained."Id. ,r 17. Id. 11 17. However, even without

17 17 constitutional constitutional standing, the Guam Supreme standing, the Court has Supreme Court held that has held that standing standing may may be be statutorily statutorily 18 15 Ii,r 20. 18 conferred conferred by the the Legislature. Legislature. See See Be/zavente Benavente v.v. Taitano, 2006 2006 Guam 15 20. "Sovereign "Sovereign 19 19 immunity immunity is aa component component of of subject subject matter matter jurisdiction." Story-Bernardo v. Gov Sto,y-Bernardo v. Gov't'f of of Guam, 20 20 2023 2023 Guam Guam 27 ,rn 12-13. 27 'lm 12-13. "Because sovereign sovereign immunity immunity implicates implicates aa court's court's subject subject matter matter 21

jurisdiction, jurisdiction, ititcan can be be raised raised at at any any time, Id. time, either by a party or by the court." Id. 222 2

23 "Sovereign "Sovereign immunity immunity means means that a sovereign sovereign cannot cannot be besued suedin inits itsown own courts courts without without its

24 consent." Id. Id. "Suits "Suits against against government officers may government officers may [also] [also] properly properly be be considered considered suits suits against against 25 the sovereign ... .. ififthe the judgment judgment sought sought would would expend expend itself itselfon on the the public public treasury treasury or or domain, or 26 2 interfere interfere with the public administration, administration, or if the the effect effect would wouldbe betotorestrain restrainthe the Government Government 27 from acting, or to acting, or to compel Fed'n of Teachers compel itit to act." Guam Fea"n Teachers ex rel. v. Perez, 2005 rel. Rector v. 2005 28 2

Page 5 of Pag 16 of 16 Decision Decision and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

Guam 25 ii,i 19. 19. However, However, "[t]hrough "[t]hrough the Organic Organic Act of of Guam, Guam, 'Congress 'Congress has has provided provided a I

2 mechanism by specific mechanism by which sovereign sovereign immunity immunity may maybe bewaived."' Bautista v. waived."' Battista v. Agustin, 2015 2015

3 Guam 23 ,i'H18. 18."'The governmentof "'The government ofGuam Guam ... shall shall have have power power to to sue sue by by such such name, and,with name, and, witll

4 the consent of the the legislature legislature evidenced evidenced by byenacted enacted law, law, may may be be sued sued upon upon any contract entered 5 into with into withrespect respect to, to, or orany anytort committed incident tort committed incidentto, to,the the exercise exercise by by the the government of Guam government of 6 of any of any of ofits its lawful lawfulPowers."' powers."'Id. Id.(quoting 48 U.S.C.A. (quoting48 U.S.C.A.§§142la). 142 la)."Thus, "Tims,ininorder orderfor foraa suit suit to to be be 7

maintained against the maintained against the Government Government of of Guam and any any of ofitsitsinstrumentalities instrumentalities or or agencies, agencies, 8

9 sovereign immunity must sovereign immunity must be be expressly expresslywaived waived by by duly duly enacted legislation." Id, enacted legislation." Id. "[A]bsent such

10 10 legislation, the Government legislation, the Government of ofGuam Guamcannot cannot be be sued." sued." Id. ,i 22. However, Id. 1122. However, in addition addition to to express express 11 11 statutory waiver, the Legislature statutory waiver, Legislature has has also also waived waived sovereign sovereign immunity immunity through, through, infer inter alia, the 12 Government Government Claims Act Act and and enabling enablinglegislation legislationthat thatgrants grants an an agency agency the the right right to to sue sue and be 13 13 sued. See Battista v. See Bautista v. Agustin, Agustin, 2015 ~,i 22-24, 2015 Guam 23 W 22-24, 28. 28. The enabling enabling legislation legislation of the the 14 14

Department of Education grants Department of right to sue and grants the right and be sued sued only to the governing governing Board Board of of 15

16 16 Education. Education. "The "The Board, Board, among among other other duties, duties, shall shall perform perform the the following in in accordance accordance with

17 17 applicable law: ... (g) sue and/or (g) sue and/ordefend defenditself itselfininsuits suitsatatlaw." law."l 717GCA GCA§§3102. 3l02.l(g).

b. GRCP GRCPl 12(b)(6) 2(`b)(6)- -Failure Failuretoto§tate State aaClaim Claimfor forWhich WhichRelief Relief May May Be Be Granted 18 Granted 19 In ruling ruling on on aa motion motion to to dismiss dismiss under under GRCP GRCP12(b)(6), 12(b)(6), the the Court Court must must accept accept all the the 20 well-pleaded facts facts as as true, true, construe construe the pleading in the light most favorable to the non-moving 21

party, and resolve all doubts doubts in in the non-moving party's party's favor. favor. Cruz Cmz v. Cruz, Crnz, 2023 2023 Guam Guam 20 ,i 10. 20 'll 10. 22

23 Dismissal Dismissal for for failure failure to tostate state aa claim claimisisappropriate appropriate only only ififititappears appears beyond beyond doubt doubt that that the the non-

24 moving party can prove no set of facts facts in in support support of his claim which would would entitle entitle him to relief. 25 Id. Id. 26

Page of 16 Page 6 of Decision and and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Civil Case Case No. CV0392-23

I

2 II. 11. the Third~Party Whether the Third-Party Complaint Complaint claims claims against against Fernandez Fernandez are barred by sovereign immunity sovereign immunity 3 Fernandez first argues Fernandez argues that that Santos's Santos's claims claims against against him him are are improperly improperly brought brought because because 4 5 GCA GCA §§7103 7103does doesnot notexpressly expressly waive waive sovereign immunity for sovereign immunity for contribution. contribution. 5 GCA GCA §§ 7103 7103 5

6 dictates: dictates:

7 Any taxpayerwho Any taxpayer whoisisaaresident residentofofGuam Guamshall shallhave havestand standing sue Mg to sue government of Guam the government Guam and and any any officer, officer, agent, agent, contractor, contractor, or 8 employee of the Executive Executive Branch of of thethe government government of Guam for the purpose the purpose of of enj oi ni enjoining any any ofofficer, f i cer, agent, agent, contractor, contractor, or or 9 employee of the employee the Executive Executive Branch Branch of the the government government of Guam 10 10 from from expending expending money money without without proper proper appropriation, appropriation, without proper proper authority, illegally, or authority, illegally, or contrary contrary to to law, law, and and to obtain obtain aa 11 II personal judgment in the personal judgment the courts courts of ofGuam Guam against against such such officers, officers, agents, contractors, agents, contractors, or employees of or employees of the government government of Guam and 12 in ffavor av or ofof t he the GGovernment ov ernm ent of G Guamuam for tthe he ret urn tto tthe return he 13 13 Government Government of Guam Guam of of any any money money which whichhas has been been expended expended without proper without proper appropriation, appropriation, without without proper proper authority, authority, illegally, illegally, or 14 14 contrary to to law. law. For For purposes purposes of this Chapter, Governor and Chapter, the Governor and Lt. Lt. Governor of GuamGuam are arc officers ofof the the government government of of Guam, Guam, and 15 are included within within the the scope scope of this Chapter. 16 16 Fernandez assertsthat Fernandez asserts thathe he isis entitled entitled to to sovereign immunity based sovereign immunity based on on the the fact fact that that 17 17 Santos's claims against against him are based based on actions Fernandez allegedly took in in his his capacity capacity as the 18 former former GDOE Superintendent. The Court Superintendent. The Court does not find does not find this this argument argument compelling for two compelling for 19

20 reasons. reasons.

21 First, Santos Santos is suing Fernandez iii his Fernandez in his personal personal capacity, capacity, and and "an award award of ofdamages damages

22 against an official in against an in his his personal personal capacity capacity can can be be executed executed only against against the official's official's personal personal 23 assets." assets." Kentucky Kentucky v. Graham, Graham, 473 U.S. U.S. 159, 159, 166 166 (1985). (1985). "A "Avictory victoryinina apersonal-capacity personal-capacity 24 action is is aa victory victory against against the individual individual defendant, defendant, rather rather than than against against the entity entity that that employs employs 25 Id. at him." Id. at 167-68. 167-68. 26

Page Page7 of of 16 16 Decision and Order Re: Decision Re: Third-Party Third-Pany Defendant Fernandez's Fernandez's Motion Motion to to Dismiss Dismiss Civil No. CV0392-23 Civil Case No. CV0392-23

Second, Second, because Santos's l11ird-Party because Santos's Third-Party Complaint Complaint does does not not cite cite 5 5 GCA GCA§§7103 7103as asaa basis basis l for relief, for relief, the the Court Court does does not not find material to find itit material to evaluate evaluate itit in in deciding dead in the the Motion Motion to to Dismiss. Dismiss. 2

33 Tirns, all arguments Thus, all to §§ 7103 pertainingto arguments pertaining 7103 will will be be disregarded disregarded by by the the Court Court at at this this time. time.

4 Accordingly, the Court will DENY the Motion Accordingly, the Motion to to Dismiss Dismiss in in regard regard to to this this argument. argument. 5 111. III. Whether Fisher fails to state claim for which relief may be granted state a claim 6 Fernandez then asserts Fernandez then that Fisher's asserts that Fisher's second second cause cause of of action action in in the the Complaint Complaint and and 7

Santos's claim against Santos's claim againstFernandez Fernandezboth bothallege allegeviolations violationsofofTitle Title4,4, Chapter Chapter 14 14of of the the GCA, GCA, 8

9 which prohibits the the disbursement disbursementof of public public funds funds except as provided in in Chapter 14 14 "and by the the

10 10 persons designated or persons designated or delegated delegated by the authority authority of the the law law and and in in accordance accordance with with applicable applicable II Federal and Guam Federal and Guam laws." laws." Mot., Mot., at at 4 4 (quoting (quoting 4 GCA§§14105). 4 GCA Fernandez argues 14105).Fernandez argues that all of that all of 12 Chapter 4 "is "is vague in violation violation of ofdue due process of law" process of law"for fornot not"clearly "clearlydelineate[ing] delineat[ing] the the conduct conduct 13 it proscribes." proscribes." Fernandez further argues Fernandez further arguesthat thatChapter Chapter44"utterly "utterly fails fails to provide provide clear clear guidelines guidelines 14

or standards standards for determining determining accountability and liability accountability and liability for for improper improper payments payments made made by 15

16 16 government officers" officers" and and that that the the lack of"c1ear1y of "clearly defined defined standards standards of ofconduct conduct does does not provide

17 17 fair notice notice to allow allow aa person person to know know what what they they must must do to to avoid avoid liability." liability." Mot., Mot., at at 12. I 2. 18 18 Fernandez asserts that Fernandez asserts that government government employees employees who who handle handle financial financial matters matters within within the the 19 19 government of government of Guam allegedly allegedly fall within the umbrella umbrellaterm termof of "Accountable "Accountable Officers," aa term term 20 which Fernandez Fernandez asserts has multiple asserts has multiple definitions and and includes, includes, inter alia, Certifying Officers, 21

Disbursing Officers,and Disbursing Officers, andCollecting CollectingOfficers. Officers.Id. Id.atat 10 10 (citing (citing 44 GCA GCA §§ §§14104, 14104, 14106. 14106. 22

23 Fernandez further asserts Fernandez further assertsthat, that,pursuant pursuanttoto4 4GCA GCA §§ 14109, all such 14109, all Accountable Officers such Accountable Officers may may

24 be held liable for losses losses of the the government of Guam government of if they Guam even if they may may not notbe beatatfault. fault. As of of the the 25 hearing date, Fisher hearing date, Fisher had had not not filed an an opposition opposition to to the theargument, argument, nor nor did didhis hiscounsel counsel argue argue 26 against the argument argument at the hearing. hearing. 27

Page 8 of Page of 16 16 Decision and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

Pursuant Pursuant toto Local Local Rule Rule 5B 5B of the the Rules Rules of ofthe the Superior Superior Court Court ("Rules") ("Rules")states, states, in in the the l

2 event of event of failure failure to to file filean anopposition, opposition, "[a]bsent "[a]bsent good good cause cause shown, shown, failure to file [a failure to [a timely timely

3 opposition] opposition] has the same sameeffect effect as asfiling filing aa notice of non-opposition." Pet. notice of Pet. ofQz¢itigua ofQuitigua v. Flores, v. Flores,

4 2004 Guam 19 ,i 24. 19 11 24.Further, Further, Local Local Rule PA of Rule 3A of the the Rules Rules provides provides that that "[a]bsent "[a]bsent good good cause cause 5 shown, papers not shown, papers not timely timely filed filed shall disregarded by the court." shall be disregarded court." However, However, "nothing "nothing in in Rule Rule 3 6 or Rule Rule 55 mandates mandates that the the failure failure to to file file an an opposition opposition to to aa motion motion automatically automatically results results in that 7 motion being being granted," and and those Rules "do those Rules "do not not relieve the lower court court of its its duty duty to to consider consider 8

9 g the merits merits of of the motion before before it." it."Id. ,i Id. 1127.

10 10 "It "It isis aabasic basicprinciple principle of ofdue dueprocess process that that an an enactment enactment is void void for forvagueness vagueness if its its

11 prohibitions are not clearly clearly defined." v. Manglona, 2024 Guam 8 ,iii 15. "A fundamental defined." People v. fundamental 12 principle principle in in our our legal legal system system is that laws laws which whichregulate regulate persons persons or or entities entities must must give fair notice 13 13 of of conduct conduct that that is is forbidden forbidden or required." FCC FCCv.v. Fox FoxTelevision Television Stations, Stations, lrzc., Inc., 567 U.S. 239, 14 14

253 (2012). This principle is violated where where aa law law either either "fails "fails to to provide provide aa person person of ordinary 15

16 16 intelligence fair notice intelligence fair notice of what what isis prohibited, prohibited, or orisissosostandardless standardless that that itit authorizes authorizes or

17 17 encourages seriously discriminatory encourages seriously discriminatoryenforcement." enforcement." U.S. U.S. v. v. Williams, Williams, 553 553 U.S. U.S. 285, 285, 304 (2008) (2008) 18 "In "In the of civil the context of civilstatutes statutes regulating regulating economic activity, activity, the the standard is sufficiently sufficiently low low that that 19 statutes are unconstitutionally statutes are unconstitutionallyvague vagueonly only when when they they are are 'so vague and indefinite indefinite as really to be 20 no rule standard at rule or standard at all." all." Boutilier v. INS, 387 U.S. 118, 118, 123 123 (1967). 21

Upon Upon review review of ofTitle Title4,4,Chapter Chapter14, 14,the theCourt Courtdoes does not not find findthe thestatutes statutes in in question question to be 22

23 unconstitutionally vague.Pursuant unconstitutionally vague. Pursuantto to 4 4GCA GCA § § 14104, 14104, an an accountable officer is accountable officer is "[a]ny "[a]ny

24 0ovemment of Guam government of Guam officer officer or or employee employee who, who, by byreason reason ofofthe theperson's person'semployment, is employment, is 25 responsible for or has responsible for has custody custody of government government funds funds or or who who physically physically handles government 26 funds, even funds, even ifif only only once once or oroccasionally, occasionally, and and is accountable for those accountable for funds while those funds while in the 27 individual's possession." individual's possession." (emphasis added). Such (emphasis added). Such officers officers are are divided divided into into four fourcategories categories 28 28

Page 9 of Page of 16 16 Decision and Order Re: Re: Third-Party Third-Party Defendant Femandezls Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

according according to their their work work responsibilities: (1) Certifying responsibilities: (1) Certifying officers, officers, who who are are responsible responsible for I

2 determining and and certifying certifying the the legality of ofthe the disbursement disbursement of public funds, funds, but but who do not not have have

3 physical physical possession of the possession of the funds, funds; (2) (2) Disbursing Disbursing officers, officers, who who disburse disburse funds funds and and render render

4 accounts in accordance with laws laws and and regulations regulations governing disbursement disbursement of of public funds, and 5 have physical physical possession or control possession or control of of said said funds, funds; (3) (3) Cashiers, Cashiers, who who are are appointed appointed to perform perfom1 6 limited cash cash disbursing disbursing functions or or other other cash-handling cash-handling operations to assist operations to finance officer; assist a finance officer, 7

and (4) Collecting Collecting officers, officers, who whoare are authorized authorized to toreceive receive or orcollect collectmoney moneyfor forthe the government. government. 8

9 Id. Id.

10 10 4 GCA 4 14109provides GCA§§i4109 providesthat that"[s]trict "[s Jtrictliability liabilitydenotes denotesthat thatthe the accountable officer is accountable officer is an an

II insurer of the insurer of the funds," funds," and "[a]n "[a]n accountable accountable officer is is automatically automatically liable when when the the loss loss 12 occurs."§ l4l09(a), occurs." 14109(a), (b). (b). Fernandez Fernandez seems to argue seems to arguethat§ that §14109(b) i4l09(b)isisatatodds oddswith with14109(b)(I), l4l09(b)(l), 13 [3 which which Fernandez Fernandez claims claims provides provides that "the "the accountable officer officer isis not not liable liableunless unless the the improper improper 14 14

payment was the payment was theresult resultofofa a'certified 'certifiedvoucher."'. voucher" Mot., Mot., at at ll. 1 I.However, However,the theCourt Courtbelieves believes 15 15

16 16 Fernandez Fernandez misconstrues thestatute. misconstrues the statute.I 4109(b l4l09(b)(l) )(I) does not provide that "an accountable officer

17 17 is is not liable" liable" in in the the above circumstances, circumstances; ititprovides providesthat that"["[a] certifying officer a] certifying officer is not liable" in

18 those circumstances. This is relevant because, circumstances. This because,as asstated statedabove, above,certifying certifying officers officers are a specific 19 19 category of accountable officers "who accountable officers "whocertify] certif[y]that thatpayment paymentvouchers vouchersare are correct correct and ready for 20 payment," "do ... not but "do payment," but not have physical possession have physical possession of of the the funds." funds." §§14106(a). 14106(a). It It stands stands to to reason reason 21

that certifying officer that a certifying officer would not be liable liable for the the loss loss of of funds funds ififthey they do do not not physically physically 22

23 23 possess said funds, and itit further possess said further stands stands to reason that they reason that they would would be be liable liable for for an an improper improper

24 payment payment based off an based off an incorrectly incorrectlycertified certifiedvoucher, voucher,as assuch such vouchers vouchers are are their responsibility. But 25 see see 44 GCA GCA§§l4109(c) 14109(c)(regarding (regarding liability liability for forother othercategories categories of of accountable officers "who accountable officers "who 26 [have] physical possession [have] physical possession or or control control of of government government funds is is automatically automatically liable when when the the 27 2

Page 1uofl6 Page 10 0fi6 Decision and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Civil Case No. CV0392-23

physical loss or erroneous payment is erroneous payment is made"). made"). Tirns, Thus, the Court is is not not compelled compelled by by Fernandez's Fernandez's l

2 first argument. argument.

3 Next, Next, Fernandez arguesthat Fernandez argues that the the strict strict liability liability standard standard stated stated in§ in § 14I09(a) 14109(a) "cannot "cannot be be 4 reconciled with the reconciled with the standard standard of of negligence then enunciated negligence then enunciatedininsection section§ §14109(c)." l4109(c)." 14109(c) l4l09(c) 5 provides that "[t]here "[t ]here may may be bemore more than thanone oneliable liableaccountable accountable officer: officer:(1) ( 1)because because more more than 6 one person person was negligent," negligent," e.g., e.g., "the "theemployee employee whose whoseerror errorcaused caused the the loss loss and and the the supervisor supervisor 7

who entrusted entrusted funds funds to to an an unqualified unqualified employee"; employee"; and and "(2) "(2)because because their positions make both both of of 8

9 them accountable," accountable," e.g., e.g., "the "the employee who who makes makes the the actual payment and actual payment and the the officer officer in whose

10 10 name the account name the account isisheld."§ held." § 14109(c)(l)-(2). l4l09(c)(l)-(2). Upon Uponreview reviewofofthe thestatute, statute, the the Court Court again again finds finds II that Fernandez that misconstruesthe Fernandez misconstrues thestatute. statute.Under Underthe thetheory theoryof of strict strict liability,§ liability, § 14109(b) l4l09(b) states states 12 that that "[a]n accountable officer is automatically accountable officer liable when automatically liable when the the loss occurs," and loss occurs," and then then in m 13 l4l09(b)(l) 14109(6)(1) and and (3), (3),states states under underwhat whatcircumstances circumstances that that automatic automatic liability liability occurs. occurs. A 14 14

certifying officer officer becomes becomes automatically liable "at automatically liable "at the moment moment of the the improper improper payment" payment" IS 15

16 that they certified the voucher for, and "[a] disbursing that disbursing officer, officer, cashier cashier or other officer officer who who has has

17 17 physical possessionor physical possession orcontrol control of of government government funds funds is automatically automatically liable liable when when the physical

18 18 loss occurs or loss occurs is made.ea" However, or erroneous payment is However, contrary contrary to to Fernandez' Fernandez' assertions, assertions, the 19 19 Court does does not not find find that thatthe thestatute statuteimposes imposes aa strict liability liability standard standard for for aa singular singular liable officer 20 and a separate negligence standard separate negligence standard for for multiple officers, but but rather rather imposes imposes both for the the sake of of 21

comparative fault. "[F]ault comparative fault. "[F]ault can can be be apportioned apportioned between between individuals individuals or or companies companies that that are are 22

23 negligent as well negligent as well as as strictly liable." liable." Romine ire v. v. Johnson Johnson Controls, Controls, Inc., Inc., 224 224 Cal.App.4th Cal.App.4th 990, 990,

24 1009 1009 (2014). (2014). California law holds holds that, even where the defendants' responsibility responsibility for an injury injtuy

25 rests on a strict rests on strict liability theory of of responsibility, responsibility, a trial court court is is allowed allowed to to apply applycomparative comparative 26 fault principles. Copeland Corp., LLC, 64 CaI.App.5th principles. Phipps v. Copeland Cal.App.5th 319, 332 332 (2021), David v. (2021); David v. 27 Hernandez, Hernandez, 226 CaLApp.4th Cal.App.4th 578, 578, 591 591 (20l4). (2014). "Under "Underthe theprinciples principles ofofcomparative comparative fault, fault, a 28 Zs

Page 11 oof 16 Page ll 16 Decision Decision and and Order Order Re: Third-Party Defendant Fernandez's Motion to Dismiss Dismiss Civil Civil Case Case No. No. CV0392-23

conduct [is] person's negligent conduct [is] assigned assigned aa share share of of fault fault greater greater than zero zero percent percent ... when when the the I

2 conduct was conduct was aa substantial substantial factor factor inin the the causation causation of ofthe the pertinent pertinent injuries." injuries." Id. Guam's Guam's statutory statutory

3 scheme acknowledges the use scheme acknowledges use of of the the comparative comparativefault faultdoctrine doctrine in in our ourjurisdiction. jurisdiction. See See77GCA GCA § §

4 24606(c) (holding that 24606(c) that a settlement settlementmade madeiningood good faith faith shall shall bar barjoint joint tortfeasors tortfeasorsfrom frombringing binging 5 inter alia, based claims, infer based on "comparative fault"). fault"). Thus, Thus, the the Court finds finds that that the the strict strict liability 6 standard suggested in§ standard suggested in § 14190(a) 14l90(a) could be reconciled with with the the use use of of negligence in l4109(c) 14109(c) to 7

determine comparative comparative fault fault between between multiple multiple liable parties. 8

9 Regarding Regarding Fernandez's Fernandez's argument argument that that 44 GCA GCA§ §141 13 does 14113 doesnot notclearly clearlystate state the the manner manner

10 10 of relief, the of relief, believes that Court believes the Court that Fernandez Fernandez may may again again be be misconstruing misconstruing the the statute. statute. The The title title of of

11 § § 141 13 states 14113 statesfairly fairlyclearly clearly that that itit is intended to is intended to "[o]btain "[o]btain ... .. relief relief from from liability," liability," meaning meaning that that 12 12 those accountable those accountable officers liable under officers found liable under this this Chapter Chapter would be relieved from said would be said liability. 13 As to As to the the conditions conditions for for obtaining obtaining relief, relief, the the Court Court finds finds them them to to be be fairly fairly straightforward. straightforward. The 14 14

Court reads Court reads the the statute statute to to mean mean that that aa potentially potentially liable accountable accountable officer officer may receive relief relief if if 15

16 16 either: (l) either: (1) there impropercertification animproper wasan therewas certificationbased basedon onofficial official records, records, and and the the officer officer did not

17 know or know or could could not notreasonably reasonably have have discovered discovered that that the the information information was was incorrect, incorrect; or or (2) (2) "the 18 obligation [to [officer's] obligation [to repay repay the the amount amount of of the the loss loss or or erroneous erroneous payment] payment] was incurred incurred in 19 19 faith," "payment good faith," "payment was was not not prohibited prohibited by by law," law," "the "the government government of of Guam Guam received received some some 20 benefit," benefit," and and "the "the agency agency made made diligent efforts to to collect collect the the debt." debt." 44 GCA GCA§ §141 l3(a)(b), 4 14113(a)(b); 4 21 2

GCA GCA§ §141 1 (a)(3). 14111 (a)(3). 22 22

23 Regarding Regarding the bases for the bases for relief relief in 4 GCA GCA §§14115, 14115,the the Court Court finds finds that that the the imposition of imposition of

24 liability on strict liability on accountable accountable officers officerswhile whilealso alsocreating creatingaarebuttable rebuttable presumption presumption of of negligence negligence 25 may be may be found constitutional inincertain found constitutional certaininstances, instances, and and thus thus does doesnot notnecessarily necessarily create create a set set of 26 facts under which which no no claim claim for forrelief reliefmay maybe besought. sought. The Thebases bases for for relief relief provide provide clear clear notice to 27 officers, stating accountable officers, stating that that the the rebuttable presumption presumption of of negligence is raised raised by by "loss or 28

Page 12 of Page IZ 16 of 16 Decision Decision and Order Re: Re: Third-Party Third-Party Defendant Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Case No. CV0392-23 CV0392-23

deficiency." deficiency." The TI1e accountable officersare accountable officers areaware awareof of what what conduct conduct would trigger trigger such such a 1

2 presumption, presumption, that that being being aa financial financial loss loss or or deficiency. deficiency. 55GCA GCA§§1411 141 l1(b)(2), l(b)(2), regarding regarding due due care, care,

3 also states that also states that "[r]egulations dictate dictate the the accountable officer's actions accountable officer's actions in in most most instances," instances," and and

4 that that "[f]ailure "[f]ailure to to follow followthe theregulations regulations will willresult result inin aa finding findingofofnegligence negligence and and a denial denial of 5 relief ififthe thenegligence negligence caused caused the loss." loss." "If ''Ifthere thereare areno noregulations regulations governing governing the the specific specific 6 actions of the the accountable accountable officer, officer, the the Comptroller Comptrollerwill willapply applya areasonable reasonable person person standard," standard," 7

Le., i.e., whether the accountable officer did accountable officer did what whataareasonably reasonably prudent prudent and and careful careful person person would 8

9 have done to take of of their theirown ownfunds fundsororproperty propertyunder undersimilar similarcircumstances. circumstances. Id. Id.(`b)(3). (b)(3). The The

10 10 Court further Court findsthat furtherfinds that7 7GCA GCA§141 § 141515does doesnot notencourage encouragearbitrary arbitraryenforcement, enforcement,because because the the l11l statute effectively limits liability statute effectively liability to to cases cases where where an an accountable officer fails accountable officer fails to rebut rebut the the 12 presumption, and the Court can can apply a clear clear standard standard for for rebutting rebutting negligence. negligence. 13 Therefore, becausethetheCourt Therefore, because Courtdoes doesnot notfind find any any instances thatfair instances that fair notice notice or or fair fair 14

enforcement are prevented enforcement are preventedby byChapter Chapter14 14of ofTitle Title 4, 4, the the Court Court finds that the statutes within within that 15

16 chapter are not chapter are not so so unconstitutionally unconstitutionally vague vaguethat that itit would render render Fisher's Fisher's notice of his claim

17 17 insufficient. en 18 Accordingly, the Accordingly, the Court Court will will DENY DENY the Motion Motion to to Dismiss Dismiss the the original 01iginal Complaint Complaint for 19 19 unconstitutional unconstitutionalvagueness. vagueness. 20 IV. Whether Whether Santos has standing Santos has standingto tosue sueunder under55GCA GCA §§7103 7103 21

Fernandez Fernandez argues that Santos argues that lacks standing Santos lacks standing to to sue under 55 GCA sue under GCA §§ 7103 7103 because because he he is is 22

23 suing for "all "allcosts costs of ofany any injunctive injunctiveor orequitable equitable relief reliefimposed imposed on Third-Party Third -Party Plaintiff Plaintiff and for

24 all damages, costs or damages, costs or other other monetary monetary liability liability assessed against Third-Party assessed against Third-Party Plaintiff," Plaintiff," and and 25 because heisis "plainly because he "plainly not seeking seeking to enjoin enjoin Mr. Mr. Fernandez Fernandez as as an officer or or employee employee of the the 26 Executive Executive Branch of of Guam Guam from from expenditures expendituresof ofpublic publicfunds." funds." Mot., Mot., at 7. 27

Page 13 of 16 Page 16 I Decision and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

First, First, the Court Court again agam does does not notfind findthis thisargument argumentmaterial material to toSantos's Santos'scontribution contribution I

2 claim, claim, as as Santos is not Santos is not bringing bringing any any claim claim in in his Third-Party Complaint his l11ird-Party pursuanttoto55GCA Complaint pursuant GCA §§

3 7103, 7103, but but instead instead seeks seeks contribution contribution from Fernandez Fernandez and and Cooper-Nurse Cooper-Nurse based based on on aa separate separate

4 claim. Santos claim. makesno Santos makes noreference referencetoto55GCA GCA §§ 7103 7103 or or even the word even the save for "taxpayer," save word "taxpayer," for when when 5 he refers to the the Complaint Complaint filed filed by byFisher, Fisher,which whichSantos Santosstated stated was was brought brought pursuant to55GCA pursuant to GCA 6 §7103. § 7103. 7

Second, even ififthe the Court Courtdid didfind findthis thisargument argumentmaterial, material,Fernandez's Fernandez'sargument argument here here 8

9 contradicts his earlier contradicts his earlier argument argumentthat thathe he is is entitled entitled to to sovereign sovereign immunity immunity under under §§ 7103. 7103.

10 10 Fernandez Fernandez asserts that"[Santos's] asserts that "[Santosls] claims against against Mr Mr Fernandez are based Fernandez are based solely solely on actions Mr.

II Fernandez Fernandez took in in his his capacity capacity as as GDOE GDOESuperintendent" Superintendent" and that "the ''the plain plain language of 5 language of 12 GCA GCA §§7103 7103shows showsthat thatthe theLegislature Legislaturedid didnot notunequivocally unequivocallyand and expressly expressly waive waive sovereign sovereign 13 13 immunity under this immunity under this statute statute for for contribution." contribution." Mot., at at 9. 9. Fernandez Fernandez further further states states that that he he 14 14

"adopts GDOE's GDOE'sarguments arguments as as being being applicable applicable to to the thethird-party third-party claims claims against against him him and and 15

16 16 emphasizes thatstrictly emphasizes that strictlyconstruing construingthe theplain plainlanguage language ofof55GCA GCA §§ 7103 7103 shows shows that that the the

17 17 Legislature only unequivocally Legislature only expressedaa waiver unequivocally expressed waiver of of sovereign sovereign immunity immunity for for the the purpose purpose of 18 18 enjoining an Executive enjoining an Executive Branch Branch employee employee from expending expending money money improperly, improperly, illegally, illegally, or or 19 19 Id. IfIfFernandez unlawfully." Id. Fernandezinvokes invokesthe theprotections protections of ofsovereign sovereignimmunity, immunity, he he asserts asserts that that he 20 is being sued sued as as aa government government employee employee and and that that bringing bringing suit suit against against him would be be bringing bringing 21

suit against the government. However, However,Fernandez Fernandeznow nowsubmits submitsthat that he he cannot cannot be be sued sued under under the 22 2.2

23 taxpayer statute statute because becauseSantos Santosisis"plainly "plainly not not seeking seekingto to enjoin enjoin Mr. Mr. Fernandez Fernandez as as an anofficer officer or

24 employee of ofthe the Executive Branch of Guam from from expenditures of public funds." If expenditures of IfSantos Santos is is not not 25 seeking seeking to enjoin Fernandez Fernandez in in his his official official capacity, capacity, then then sovereign sovereign immunity immunity should should not apply. 26 Because Fernandez isis making Because Fernandez making two two contradictory arguments for dismissal, arguments for the Court dismissal, the Court will will deny 27 both. 28

Page 14 of 16 Page 14 I

Decision and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Fema Motion to Dismiss Dismiss Civil Case Case No. CV0392-23

The TI1e Court also that Fernandez's also notes that Fernandez's adoption adoption of of GDOE's GDOE's arguments arguments would would essentially essentially 1

2 render this entire Motion Motion moot, moot, as as one one ofofGDOE's GDOE'sarguments argumentsisisthat thatSantos's Santos'sclaim claim against against

3 3 Fernandez should should not be dismissed. dismissed. GDOE GDOE Mot, Mot. to to Dismiss, Dismiss, at at 3, 10. 10.

4 Therefore, also DENY the Court will also Therefore, the Court the Motion Motion to to Dismiss Dismiss regarding regarding this this argument. 5 vV.. W hether the Third-Party Complaint Complaint claim claim against against Fernandez is barred by by the 6 doctrine of prudential standing 7

Fernandez argues that Fernandez argues that Santos's Santos'sclaim claimfor for contribution contribution isis barred barred by by the the doctrine doctrine of 8 8

9 prudential prudential standing standing because Santosisisallegedly because Santos allegedlynot not "within "within the the class of plaintiffs whom the class of

10 Guam Guam Legislature authorized to Legislature authorized to sue sue to to enforce enforce proper government spending proper government spending under under 55 GCA GCA §§

II 7103," and and that, that, even even ififhe he was, was, the the claim claimwould wouldfail failbecause because Fernandez Fernandez is is no longer part part of the 12 government government of Guam. Guam. The Court does not find find this thiscompelling. compelling. First, First, Fcmandez's Fernandez's argument argument for 13 13 prudential standing regarding prudential standing regardingSanto Santos's abilityto tobring s's ability bringa aclaim claimunder under5 5GCA GCA §§ 7103 7103 is is 14 14

immaterial for the the reasons reasons stated above. above. Second, Fernandez's departure from from the government government of of 15 15

16 Guam does not render render him immune immune to any any actions actions alleged during his tenure alleged during as part tenure as part of of the the

17 17 govemmcnt. government. See Hofer v.v. Memo, See Hafer Melo, 502 U.S. U.S. 21 21 (1991) (1991) (finding (finding that that former former government government officials 18 are not immune from lawsuits when sued immune from sued for actions taken taken while while in office). 19 Accordingly, the Court will will also also DENY the Motion Motion to to Dismiss Dismiss regarding regarding this this argument. argument. 20 20 VI. Whether Santos fails to state a claim upon which relief relief can be granted. 21 21

Finally, Finally, Femandoz argues that Fernandez argues that Santos Santos fails fails to ro state state a claim upon which which relief relief can can be 22 22

23 23 granted because the Third-Party because the Third-Party Complaint allegedly does not not plead sufficient facts to support a

24 24 legally legally cognizable right to cognizable right to relief. relief. However, However, the the Third-Party Third-PartyComplaint Complaintalleges alleges that that Fernandez Fernandez 25 25 had expenditure expenditure authority authority and that that any any liability liabilityassessed assessed against against Santos would be Santos would be based based on 26 26 Fernandez's independent independent decision-making. decision-making. Pursuant Pursuant to GRCP GRCP l12(b 2(b)(6), )(6), the the Court Court must must accept accept 27 27 these allegations as these allegations as true true at at the pleading pleading stage. stage. Fernandez further argues Fernandez further arguesthat that the the type type of 28 28

Page 15 of Page 15 of 16 16 Decision Decision and Order Re: Re: Third-Party Third-Party Defendant Fernandez's Motion Motion to to Dismiss Dismiss Civil Case Case No. CV0392-23

contribution soughtby contribution sought bySantos Santosisisnot notcontained containedwithin within55GCA GCA §§ 32118 32118 or or 77 GCA GCA §§24604, 24604, but but I

2 the the Court does does not not find findthis thisargument argument compelling. compelling. No NoGuam Guamstatute statuteexpressly expressly states states that that

3 contribution contribution may may be be sought sought only onlyand Er those under those statutes, statutes, or or that that contribution contribution must must be sought under 4 statute in all statute in all cases. cases. Further, Fernandez asserts Further, Fernandez assertsthat thatSantos Santoshas hasno no common common law law right right of 5 contribution for the contribution for the enforcement enforcement of proper proper government government spending, but does spending, but does not not provide any any 6 citation stating the citation stating the limits limits of of the the common common law law right right of ofcontribution, contribution, or or explain explain why why Santos's Santos's 7

claim claim for for contribution must necessarily contribution must necessarilybe be construed construedasas one one for enforcement enforcement of proper proper 8

9 government spending.To government spending. To the the contrary, the Court contrary, the Court finds that that has sufficiently sufficiently pled notice of his his

10 10 contribution claim, and contribution claim, and will will therefore DENY Fernandez's Fernandez's Motion Motion to to Dismiss Dismiss in in regards regards to the the 11 II contribution claim. claim. 12 12 CONCLUSION 13 Based on the foregoing, the the Court Court hereby hereby DENIES DENIES Fernandez's Motion Motion to to Dismiss. Dismiss. 14

FEB 1 g92025 - -FEB 2025- - - - 15 IT IS SO ORDERED ---- 16

18 ~-·- /5 - HONORABLE ARTHURARTHUR R. R. BARCINAS Superior Court of Guam Judge, Superior BARCINAS 19

Page Page 16 of of 16 16