Fisher v. Santos

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

4

5

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 Thirdthe

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

28

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

27

28

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

27

28

Page Page7 of

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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

28

Page 8 of Page of 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

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

28

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

28

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

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

17

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

Judge, Superior

BARCINAS

19

20

21

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23

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25

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