Leon Guerrero v. Moylan

• Court: Superior Court of Guam
• Decided: June 9, 2025
• Docket: CV0290-25
• Status: Unknown

Opinion

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25,35 Jura ;.g PH f22 art; 5§.iii'?{§°§ go: céam21 IN THE SUPERIOR COURT OF OF GUAM GUAM ,at;~___,.. LOURDES A. LEON GUERRERO,1I LOURDES CIVIL WIL CCASE SE NO. CV0290-25 n o. cv0290_25 MAGA 'HAGAN GUAHAN, MAGA MOVANT OF GUAHAM MOVANT OF GUAM,in GUAM, her official inher official capacity, capacity, DECISION AND ORDER ORDER GRANTING GRANTING Plaintiff; Plaintiff, PRELIMINARY PRELIM INARY INJUNCTION AND DENYING M DENYING MOTIONS OTIONS TOTO DISM DISMISS; vs. PRELIMINARY IN ARY INJUNCTION JU N

DOUGLAS B. MOYLAN, DOUGLAS MOYLAN, ATTORNEY AT ORNEY GENERALOF GENERAL OF GUAM, GUAM,ininhis his official capacity, andthe capacity, and theOFFICE OFFICE OF OF THE THE GENERAL ATTORNEY GENERAL OF GUAM,

Defendant.

PlaintiffLourdes Plaintiff Lourdes A. A. Leon LeonGuerrero, Guerrero, II Maga'hagan Maga'hagan Guahan, Guahan, moves moves for for a preliminary

injunction against Defendants injunction Defendants Douglas Douglas B. Moylan, Attorney General of Guam, and the B. Moylan, the Office Office of of

the Attorney Attorney General General (OAG) "fromtaking (OAG) "firm takingaction actionto to perform perform on, on, incllr incur debt debt on, or or utilize utilize public public

fiends to funds to pay payfor forservices servicesrendered renderedunder underthe the Agreementbetween Agreement between OAG thethe OAGand andTropical Tropical Palm Palm

(TPH)"for Hotel (TPH)" for services services related related to to the theDignity DignityProject. Project. Mem. Men. P. & A. A. in in Supp. Supp. Ex Ex Parte Mot. Mot.

TRO TRO &&Prelim. Prelim.kit. Inj.atat22(Apr. (Apr.25, 25,2025). 2025). Defendants Defendantsininresponse response move move to to dismiss dismiss this this matter matter for

lack ofjurisdiction, lack of jurisdiction,failure failuretotojoin joinananindispensable indispensableparty, party,waiver waiverofofthe the right right to to object, object, and

failure to to exhaust exhaustadministrative remedies.The administrativeremedies. TheCourt CourtDENIES DENIES all all four four of of Defendant's Defendant's Motions Motions

to Dismiss Dismiss and GRANTS the Governor's Motionfor Governor's Motion forPreliminary PreliminaryInjunction onthe Injunctionon thebasis basis that that she

has established aa likelihood ofsuccess likelihood of success on the merits and the the existence existence of harm. of irreparable harm.

I. 1. PROCEDURAL BACKGROUND BAC

Governor Leon Governor Leon Guerrero Guerrero filed filedthis thisaction actionagainst against Defendants Defendants seeking seeking aa temporary

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restraining order and a preliminary injunction injunction regarding regarding the the"Dignity "Dignity Project." The project Project." The project

intends to intends to utilize utilize funds grantedby funds granted bythe Opioid the OpioidRecovery RecoveryAdvisory AdvisoryCouncil Council (ORAC) to contract (ORAC) to contract

with aa hotel for with for aa twelve-month twelve-month period periodto to provide provideone-night one-nightstays, stays, meals, meals, showers, showers, and and related

services to services to 20 20 unhoused unhorsed individuals on aa daily individuals on daily basis. basis. Governor GovernorLeon LeonGuerrero Guerreroasserts assertsthat that after after

unsuccessfully issuing unsuccessfillly issuing a Request for for Proposal Proposal (RFP) (RFP) and and an an Initiation vitiation for Bid (IFB), Defendants Bid (IFS), Defendants

pursued a sole source procurement pursued procurement to to find End a hotel hotel vendor. at 5-6. vendor. Id. at Defendants entered 5-6. Defendants entered a

contract with with TPH, howeverthey TPH, however they did did not not present present this contract to to Governor Governor Leon Guerrero for for her

signature of of approval. approval. Id. Id. at 7. 7. Governor Governor Leon LeonGuerrero Guerreroasserts asserts that under under 55 GCA GCA §§ 22601 22601 she

must approve all contracts of whatever nature must nature and and that thatwithout withoutenjoining enjoining Defendants Defendants she shewill will

face the the irreparable harm of irreparable harm of having having her her "right "right to to review review and decide decide whether to to approve" approve"

contracts violated. contracts at 10. Id. at violated. Id. I InIn response, response, Defendants argue argue that that the theGovernor Governor will will not face

irreparable harm because because the theonly only harm harm she will face is the expenditure of funds, she will funds, that that the theAG's AG's

Office complied Office compliedwith withevery everyaspect aspect of ofGuam's Guam'sprocurement procurement law, law, and and that that the the Governor's Governor's

signature was signature was not not required required on on the theprocurement procurementcontract. contract.Opp'n Opp'n Mot. Mot. TRO at 12, TRO at 12, 14 14 (Apr. (Apr. 28,

2025). 2025).

This matter This matter originally came before the Honorable originally came John C. Terlaje on April Honorable John 28, 2025, who April 28,

granted Governor granted Governor Leon Guerrero's Guerrero's request request for aa temporary temporary restraining restrainingorder. order. Upon Upon

reassignment, this Court reassignment, Court extended the the temporary temporary restraining restraining order orderuntil until the close of the close of business business of of

1 May 19, May 19, 2025, 2025, and set set aa hearing hearing for forthe thepreliminary preliminary injunction injunction on on May May 12, 2025. 2025.1 Order

Extending TRO Extending (May8,8,2025). TRO(May 2025). This ThisTRO TRO wasagain was againextended extendedper perstipulation stipulationbetween between the the

1A 1 A full full discussion ofthe discussion of the procedure procedure related related to the temporary restraining order and its its extension can be found found in in the the Court's Court's May May 8, 2025 Order Extending Extending Temporary Restraining Restraining Order.

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parties until until the the Court Court came came to to aa final final determination determination on on the theMotion Motion for for Preliminary Injunction

and four and four Motions Motions to to Dismiss. Renewing Extension of Dismiss. Order Renewing of TRO (May 16, TRO (May 16, 2025). 2025).

The Court Court held the the preliminary injunction hearing hearing from May 12 to from May to 15, 15, 2025. 2025. The Court Court

heard testimony heard testimony from from AG AG Moylan, Fred Nishihara Nishihara (OAG Deputy Attorney General), (OAG Deputy General), Thomas

Paulino (OAG Paulina (OAGGeneral GeneralAccounting AccountingSupervisor), Supervisor), Pilar Pilar Carbullido Carbullido (Guam (Guam Customs Customs & Quarantine Quarantine

Agency Officer), Agency Officer), Louise C. Rivera Louise C. Rivera (Mayor (MayorofofTamuning), and Jessica Tamuning), and Jessica Tort Toft (Former (Former Assistant

AG). Defendants AG). Defendantsmoved movedtotodismiss dismissthis thiscase case aler afterthe theGovernor Governorrested rested her her case in chief chief arguing

that that Governor Governor Leon Leon Guerrero failed to speak about the failed to the irreparable irreparableharm harmshe shewould wouldincur. incur. The The

Court denied Court denied this this effort effort from from the the bench, bench, stating stating that were outstanding issues of that there were law that of law that the

Court would Court would like like more more information information on on which whichimpact impactthe the Court's Court's determination of ifif the determination of the Governor

has adequately has adequately proven proven irreparable irreparable harm harm and likelihood of andaalikelihood of success. success. The Court then The Court then proceeded

to hear the the four four Motions to Dismiss Motions to Dismissand andclosing closingarguments argumentson onJune June5,5,2025 2025.

11. II. FINDINGS D I N G S OOF F FFACT ACT .

The Court Court recites recites undisputed facts found during during the the proceedings proceedings and and makes further

of fact findings of fact by aa preponderance preponderance of of the evidence.

1. Public 1. Public Law LawNo. No.36-064 36-064established established the the ORAC ORACtotoprovide providefor forthe the use use of of dedicated

revenue for the \featment revenue treatment and preventionof andprevention ofopioid opioid use use disorders disorders and and co-occurring co-occurring

disorders. GCA §221701, disorders. 5 GCA § 221701, et et seq. seq. The The ORAC ORACconsists consistsofof11 11 members members including:

the AG as the non-voting AG as non-voting chairperson, chairperson, two two individuals appointed by the Governor, individuals appointed

and a member member each each from from the the Guam Guam Behavioral Behavioral Health and Wellness Center, the Wellness Center,

Department of Department of Public Health and Social Public Health Social Services, Services, and and the theGuam GuamMemorial Memorial Hospital Hospital

Authority. 5 GCA Authority. GCA §221704; § 221704; Ex. Ex. A; A; Mem. Mem. P. P. && A. A. in in Supp. Parte Mot. Supp. Ex Parle Mot. TRO TRO &

Prelim. Inc. Prelim. Inj. at 2; 2, Opp'n Opp'n Mot. Prelim. Prelim. Inc. Inj. at at 55 (May (May 7, 2025).

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2. The 2. The ORAC ORACdetermines determinesthe the use use of of funds within within the Opioid Recovery Trust Opioid Recovery Trust Fund ("the

Fund"), aa continuing Fund"), continuing fiend fund containing containing the the proceeds proceeds received received on behalf of on behalf of Guam

relating to manufacture, relating manufacture, marketing, marketing, distribution, promotion, or distribution, promotion, or dispensing dispensing of of opioids, opioids,

whether received by by verdict verdict or or settlement. settlement. 55 GCA GCA §§ 221702(b). 22 l 702(b

3. Guam law provides provides that the the OAG, in consultation with OAG, in with the the ORAC, shall administer ORAC, shall administer

the Fund. Fund. 5 5 GCA GCA§§221702(e). 221702(e). The Thelaw lawfilrther furtherprovides provides that that monies in in the Fund Fund

shall be expended to shall to mitigate mitigate the impacts of the impacts of the the opioid opioid epidemic on on Guam, including,

but not limited but to, expanding limited to, expanding access to to opioid disorder prevention, intervention, opioid use disorder

treatment, andrecovery treatment, and recovery options. options. 5 GCA GCA §§ 221703. 221703.

4. AG Moylanpresented AG Moylan the idea of presented the of the the Dignity Dignity Project Project to tothe theORAC ORAC along with a

project prospectus on project prospectus on August August 28, 28, 2024. 2024. Opp'n Mot. Prelim. Opp'n Mot. Prelim.k1j. Inj. at at 4, 4; Ex. BB.. TThe he

prospectus detailed prospectus detailed that that the theDignity Dignity Project Project would would "provide "provide aa safe place for an

evening so a person can receive a meal, place to to shower and sleep, and and aa morning morning

refreshment" along refreshment" along with with access access to to emergency emergency assistance, assistance, access to assistance assistance in in

finding job opportunities, finding job opportunities, the the assignment assignment of of aa case and social worker, peer social worker, peer support

specialists, transportation services, services, aa hotline, hotline, and andsecurity securityservices. services. Ex. Ex. B at D 12-14. D12-14.

5. The ORACvoted The ORAC votedtotoapprove approvethe the Dignity DignityProject Project and and entered entered aa Resolution Resolution on August August

29, 2024, memorializing 29, this decision. memorializing this decision. Ex. Ex.CCatatD52. D52.The TheResolution Resolution statedthat stated that"t11e "the

Councilmajority Council majorityvoted voted to to approve approve an award of$1,497,997.22 of $1,497,997.22to theAG's tothe AG's Office Office for

implementation and execution of program design elements the implementation elements of of The Dignity Dignity Project Project

subject reviewof subject totoreview ofthe theRequest Requestfor Proposal for byby Proposal GBHWC, GBHWC,DPHSS, DPHSS, and and any anywilling willing

committee member." Id. This member." Id. Thisresolution resolutionmade madeno noreference reference to to pursuing a

procurement through an an IFB or sole IFS or sole source.

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6. 6, On September 13, On 13,2024, 2024,the theOAG OAG issued issued RFP RFP No. 005-2024, 005-2024, which which was eventually

amended and amended canceled on and canceled onNovember November26, 26,2024. 2024.Mem. Mem. P. P. & & A. in in Supp. Ex Parte Mot. Mot.

TRO TRO &&Prelim. Prelim.Inc. Inj. at at 4; 4, Opp'n Mot. Prelim. Inc. Mot. Prelim. Inj. at at 6; 6, Ex. Ex. F. F. One vendor, WestCare,

attempted to to negotiate negotiate the termsof the terms of the theRFP, RFP, however they were however they were unable unable to to meet meet the

"one night" requirement of "one of the theprogram. program. AG AG Moylan Test. (May Moylan Test. (May 12, 12, 2025).

7. 7. After After the difficulties with the difficulties with the RFP, the OAG RFP, the decidedto OAG decided to remove remove the the professional professional

services from from the procurement. Id. the procurement. Id. The OAGdecided The OAG decidedthat that itit would would manage manage the the

"administrative services" "administrative services"and and would wouldprocure procureaavendor vendorto to manage manage the the hotel and meal meal

aspects of aspects of the theDignity Dignity Project Project through throughan IFS. Id. anIFB. On February 7, 2025, Id. On 2025, the theOAG OAG on

behalf of behalf of the Council and through Council and through the the General GeneralServices ServicesAgency Agency (GSA) issued IIFB (GSA) issued S

No. GSA-014-25. No. Mem.P.P.&&A.A.ininSupp. GSA-014-25. Mem. Supp.Ex ExParte Parte Mot. TRO&&Prelim. Mot. TRO Prelim.Inc. Inj. at at 5, 5;

Opp'n Mot. Opp'n Mot. Prelim. Prelim. Inc. Inj. at 7; 7, Ex. Ex. G. G. The The IFB solicited hotel IFS solicited hotel lodging lodging and

Ex. GG at accommodations. Ex. at D493. D493. No Nobids bidswere were submitted, submitted, upon which which the IFB IFS was

extended for extended for two two weeks. Again,no weeks. Ex. H. Again, nobids bids were were submitted submitted and the the IFB IFS was

cancelled on Marcy 14, 2025. Marcy 14, Ex. I. 2025. Ex.

8. The OAGthen The OAG then proceeded proceeded with with aa sole sole source procurement. procurement. The The OAG contacted at OAG contacted at

least three three potential potentialvendors vendors about aboutproviding providing the thehotel hotellodging lodging and and accommodation accommodation

needs of the the Dignity Dignity Project. Pauli Paulino ro Test. (May 14, 2025), (May 14, 2025); Nishihara Test. Test. (May 13, (May 13,

2025); Ex. 0 2025), O at D910. TPHexpressed D910. TPH expressedan an interest interest after they they were were contacted. contacted. A A

contract was was then then entered betweenTPH enteredbetween TPH and andthe theOAG OAG for for TPH TPH to provide guest room

accommodations, common facilities, meals, common facilities, meals, and and security for the the Dignity Project for Dignity Project

costs not not to toexceed exceed$1,131,500.00. $1,131,500.00.Ex. Ex.K.K. This This contract contractwas wassigned signedby byAG AG Moylan, Moylan,

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Chief Deputy AG Chief (CDAG)Joseph AG (CDAG) Joseph A. A. Guthrie Guthrie (the (the AG Certifying Certifying Officer), Officer), and

Deepak Dwan Deepak Dwan (the (the general manager manager ofTPH). Id. at of TPH). Id. at D548.

9. On or about On about April April 15, 2025, 2025, the theOAG OAG delivered delivered a copy of of the TPH Contract to TPH Contract to the

Department of Administration Administration (DOA) (DOA)totocomplete completethe therequisite requisitecontract contract registration. registration.

Mem. P. && A. Mem. P. A.ininSupp. Supp. Ex ExParte Parte Mot. TRO&&Prelim. Mot. TRO Prelim.Inc., Inj.,Travis Travis Decl., Deel., Ex. Ex.22 at at 2.

On or On or about April 17, 2025, April 17, 2025, the DOA refused to DOA refused to process process the TPH Contract stating TPH Contract stating that

the contract contract needed needed to tobe besigned signedby byGovernor Governor Leon Leon Guerrero per per 55 GCA GCA §§ 22601, 22601,

which provides which provides that that "[a]ll "[a]ll contracts contracts shall, after approval approval of of the Attorney Attorney General, be

submitted to the the Governor Governor for his signature. Allcontracts signature. All contracts of ofwhatever whatever nature nature shall be

upon the approval executed upon of the approval of Governor." Id., the Governor." GCA §§ 22601. Id.; 5 GCA 22601.

10. Because 10. Because of of the the DO A's refusal DOA's refusal to to register register the TPH Contract, on TPH Contract, on April April 17, 17, 2025, 2025,

Pauli ro inquired with the OAG Paulino asking ififthe OAG asking the Governor Governor is is required to to sign sign the theTPH TPH

Contract. Ex. Contract. Ex.Lat CDAGGuthrie L at D559. CDAG Guthrieprovided provideda amemorandum memorandum detailing detailing aa legal

opinion that stated opinion stated that thatthe theGovernor's Governor's signature signaturewas wasnot required. Id. notrequired. Id. at at D567. D567. In

the memorandum, CDAG Guthriestated CDAG Guthrie statedthat that the the issue had been been previously previously addressed addressed

in in a July 14, 2004 Legal 14, 2004 Legal Opinion Opinion from the Guam Memorial Memorial Hospital Hospital Authority. Id. at Authority. Id. at

D560. CDAG D560. CDAGGuthrie Guthriestated stated that that the the ORAC, like the ORAC, like the Guam Memorial Memorial Hospital

Authority was "not Authority was "not under under the Governor's Id. He direct control." Id. Governor's direct Hestated statedthat that since since the

contract was a "procurement "procurement contract, contract, itit need need not not be be signed signed by by the thegovernor." Id. at governor." Id.

Further,he 561. Further, hestated stated that that aa sole source purchase order need not be approved by by the the

Governor and Governor and "only "only [by] [by] the the head head of Id. at of the purchasing agency." Id. at 562.

11. On On April April 23, 23, 2025, 2025, Assistant Assistant AG AG (AAG) Ramiro Orozco (AAG) Ramiro Orozcosent sent aa letter to to the theDOA DOA

General Accounting General Accounting Supervisor John John Camacho Camacho titled titled"Notice "Notice of of Violation Violation of of Law; Law,

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Registering Dignity Project Contract; Dignity Project Contract, Request Request to toImmediately ImmediatelyCure." Cure." Ex. Ex. 5. 5. This This

letter stated letter thatifif Camacho stated that Camacho did did not "immediately accept this "immediately accept this contract contract for processing /I for processing

registering by 12:00 registering 12:00 p.m. p.m. tomorrow, tomolTow, April April 24, 2025" he would would be charged charged with with

"official "officialmisconduct misconduct (4 (4 GCA GCA§ §49.90), 49.90), obstructing obstructing government function (9 (9 GCA GCA § §

55.45), as 55.45), as well well as as possibly possibly other other applicable applicable crimes." at P20. The Id. at crimes." Id. The letter letter further further

states that states thatthe theOAG intended to "also OAG intended seek personal "also seek personal monetary monetary damages damages against [him] as for the for the damages that that the the Council faces pursuant Council faces pursuant to the before before cited cited criminal statutes." criminal statutes.

Id. at P21. p21.

12. Following 12. ofthe receipt of Following receipt the Notice, Notice, Camacho Camacho "registered-approved "registered-approved and and confirmed" the the

TPH Contract TPH Contract on on April 23, 2025. 2025. Mem. P. & A. Mem. P. A. in in Supp. Supp. Ex Ex Parte Parte Mot. Mot. TRO & TRO &

Prelim. Inc, Prelim. Inj, Travis Travis Deel, Deal, Ex. 6.

13. During 13. During the hearing, hearing, Paulino Pauli ro detailed detailed his his involvement involvement with with the the Dignity Project through Dignity Project

his work his as a general work as general accounting accounting supervisor supervisor at atthe theOAG. He detailed how he oversaw OAG. He

the sole sole source source procurement procurement process processfor for the theDignity Dignity Project. In reviewing Project. Bx if the reviewing if the

procurement procurement record met the statutory statutory requirements requirementsof of 55GCA GCA §§ 5214(c) 5214(c) and and (d), (d),

Paulinostated Paulina stated that that the sole source procurement record did did not include include aa report

"signed by "signed by the the person or persons person or persons conducting conducting the the market market research research and analysis" and

did not include a writing the "Chief writing by the "Chief Procurement Officer, Officer, the the Director Director of of Public Public

Works, the Works, of a purchasing agency, or a designee of the head of of either officer above the officer above

ofthe level of the Procurement Procurement Officer" Officer"that that determined determined "that "that the the contract price is fair and

reasonable and and consistent consistentwith with applicable applicable regulations." Paulino regulations." Pauli ro Test.

14. The 14. The day day after after Paulino's Paulino's testimony, testimony, AG Moylan approved AG Moylan approved and and executed executed aa

"Procurement Ratification "Procurement Ratification and and Affirmation." Ex. AG. Affirmation." Ex. AG. This ThisRatification Ratificationstated stated that that

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pursuant to 55 GCA pursuant to GCA §§ 5452 5452 and GAR §§9106, and 2 GAR 9106, he he "ratified "ratified and and affirmed affirmed the the contract

dated April 15, 2025 April 15, 2025 between the the Attorney General of Attorney General Guam of G u and the and the Tropical Tropical Palm

Hotel." Id. Hotel." at Dl448. Id. at D1448. This ThisRatification Ratificationwas waslegally legallyreviewed reviewedand and approved approved by

CDAGGuthrie. CDAG Id. atat D1450. Guthrie. Id. D1450. AG AGMoylan Moylan testifiedthat testified that upon upon hearing hearing Paulina's Paulino's

about potential issues with the sole source procurement record he testimony about

conducted an analysis finding absence of fraud and balanced an absence finding an balanced the the "minor "minor

in the record with infirmities" in with the the "good "good that that comes comes from from the the project." He determined project." He determined

that that the thegood goodoutweighed outweighedthe theinfirmities infirmities and andratified ratifiedthe thecontract. contract.AG AG Moylan Moylan Test.

(May (May 15, 15, 2025). 2025).

15. During During the hearing, the the parties parties stipulated stipulated that thatunder under55GCA§ GCA§ 22601, the the Governor's Governor's

signature is is required required for for federal federal contracts. contracts. Prelim. Prelim. Inj. Inc. Hr'g Hr'g (May 15, 2025). (May 15,

III. MOTIONS MO TO DISMISS TIONS T MI

The Court first The Court first addresses addresses three threeof ofDefendants' Defendants'four fourMotions Motions to to Dismiss: Dismiss: I) 1) Motion Motion to

Dismiss Pursuant Dismiss Pursuant to GRCP Rule19(a), GRCP Rule 2) Motion 19(a), 2) Motionto to Dismiss Dismiss..- Failure Failure to Exhaust Administrative Administrative

Remedies, Lack ofStanding Lack of Standing and and Lack Lack of ofJurisdiction, Jurisdiction, and 3) Motion to Dismiss Motion to Dismiss ..- Movant Movant

Waived the Right to Object. Waived Object. Defendants generally move move for for dismissal dismissal under under Guam Rules of Guam Rules of

CivilProcedure Civil Procedure12(b)(1), 12(b)(l), (6), (6), and and (7). (7). For motions brought under For motions under Rule Rule 12(b)(6), l2(b)(6), the Court

accepts well-pleaded facts as true, accepts well-pleaded construes the pleadings the, construes pleadings in a light favorable to the plaintiff, plaintiff; and

in the non-movant's favor. Cruz resolves all doubts in Cruzv.v. Cruz, 2023 Guam Cruz,2023 Guam20 ~ 10. 2011 I 0. Defendants Defendants do

not offer not offer aa standard standard to view the allegations allegations under under aajurisdictional jurisdictional attack attackunder underRule Rule12(b)(l); l2(b)(l);

thus, the thus, the Court Court applies applies the the general generalfederal federalstandard standardthat a Rule that a Rulel 2(b )(I) motion l2(b)(l) motion should be if if it

appears certain that appears that the plaintiff cannot prove any set of cannot prove of facts facts entitling entitling him him to to relief. See See th Wagstaffv. US. Wagstajfu US. Dept. Dept. ofofEduc., 509 F.3d661, Educ., 509 F.3d 661,663 (5 Cir. 663 (5th Cir. 2007). 1 .

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A. Motion MotiontotoDismiss Dismiss Pursuant Pursuant to to GRCP GRCPRule Rule19(a) 19(a)

Defendants move to to dismiss Governor Leon Guerrero's complaint Leon Guerrero's complaint under under Rule Rule 19(a), 19(a),

which requires which requires joinder ofaa party jointer of party

if(1) if (I) in in the the person's absence complete relief cannot be accorded among those relief cannot already parties, or (2) the person person claims an interest relating to the claims an tlle subject of the action and action and is is so so situated situated that the the disposition of the action in disposition of in the the person's absence may (i) may as a practical matter impair (i) as or impede impair or impede the the person's ability to protect ability to protect that that interest or (ii) leave leave any ofthe any of the persons already parties subject to to a substantial substantial risk risk of incurring of incurring double, double, multiple, multiple, or or otherwise otherwise inconsistent obligations by reason reason of of the claimed interest. 2 claimed interest.2

Defendants assert Defendants assert that that the the ORAC ORAC isisan an indispensable indispensable party party that that needs to to be joined in this joined in

suit because it it authorized authorized the the payment payment of of funds funds for for the the Dignity Project and Dignity Project and has an interest interest in in how how

the the ORAC spent. 3 Mot. Fund isis spent.3 ORAC Fund Mot. Dismiss Dismiss Pursuant Pursuant GRCP GRCP19(a) 19(a) at at 5 (May 12, 2025). (May 12, 2025). Governor

Leon Guerrero Leon Guerrero responds responds that that there thereisisno noindication indication that thatthe theORAC ORAC was was involved in the involved in the sole

source procurement process, the the ORAC wasnot ORAC was notaa signatory signatory to to the the TPH TPHContract, Contract,and andthat thatdue the

OAGdid OAG did not not purport purport to to execute executethe theTPH TPHContract onbehalf Contracton behalfofofthe ORAC. the ORAC. Opp'n Opp'n to to Defs' Defs' Mot. Mot.

Dismiss Pursuant GRCP Dismiss Pursuant Rule19(a) GRCP Rule !9(a) at at 4. 4. She argues arguesthat thathe the OAGacted OAG actedofoftheir own their volition- own volition-

not on behalf of not of the ORAC, ORAC,but butas as aa grantee grantee of of the theORAC Id. The funds. Id. ORAC funds. TheGovernor Governorfixrther further

states that states thatthe theORAC's status as ORAC's status as aa grantor grantor does not not inherently inherently render render itit aa necessary party to this

action and that action that if if the the Court Court grants grantsthe theGovernor hersought Governorher soughtrelief, relief,it itwill willnot notaffect affectthe theORAC's ORAC's

rights to to fund fund programs programs so so long long as as they complied with theycomplied with law. Id. at law. Id. at 5-6. Lastly, she 5-6. Lastly, she argues argues that that if if

2 2 The The Court considers this motion motion under Rule 12(b)(7) for failure Rule 12(b)(7) failure to to join join aa party under Rule 19. Rule 19.

3 As the Court 3 As the Court noted at at the theJune June55hearing, hearing,the theMotion Motion contained contained two critical statements later critical statements contradicted by the the testimony testimony developed developed after after the themotion motion was was filed. Contrary to filed. Contrary to representations representations in the Motion, in the evidence showed that Motion, the that the the ORAC was not ORAC was not involved involvedininthe the sole sole source source process of the procurement of procurement or or in in approving approving the theTPH It isis also TPH Contract. It also not not a party party to to the theTPH TPH Contract.

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the Court determines determines the theORAC is aa necessary party, ORAC is party, itit may may simply simply order order the theORAC to be ORAC to

Id. at joined. Id. at 6.

Guam Guam law law describes the ORAC describes the ORAC as as aa consulting consulting body. See GCA §§ 221702(e). See 5 GCA 221702(e).

Collectively,its Collectively, itsmembers members "determine "determine the the allocation allocationororexpenditures ofthe expenditures of the Fund" Fund" .in .in accordance

with with certain certain statutory criteria to statutory criteria to address addresssubstance substanceuse usedisorders. disorders.55GCA GCA §§221704(a), 221704(a), (h). (h).

Moreover, the Moreover, the law places administration administration control control over over the theFund Fundininthe thehands handsofofthethe OAG. OAG.55GCA GCA

§§ 221702(d)-(f). §§ 221702(d)-(f).

The ORAClaw, The ORAC law,however, however,does does not not expressly expressly require theORAC's require the involvement in ORAC's involvement in the the

projects it approves. approves. This is consistent This is consistent with the manner in with the in which which the services services for for the the Dignity Dignity

Project were procured. Project The evidence procured. The evidence showed showed that the the ORAC approved the Dignity ORAC approved Project and Dignity Project

proceeding with an RFP. Beyondthat, RFP. Beyond that, there there was no evidence that thatthe theORAC ORAC was involved in the involved in the

subsequent decision subsequent decision to to issue issuean anIFB IFS once once the theRFP RFP was was canceled. canceled. It was not involved involved or

consulted in consulted in the the succeeding succeeding determination determination to to pursue pursue a sole source procurement, nor in any of of the

efforts used used by by the theOAG OAG to to complete complete the thesole solesource sourceprocurement. procurement.And Andfinally, finally,the theORAC is not ORAC is

party to a party to the theTPH TPH Contract, Contract,which whichwas signedby wassigned byAG AG Moylan, Moylan, the managerofTPH themanager of TPH and andCDAG CDAG

Guthrie.

As the administrator of As the of the the ORAC Fund,as ORAC Fund, as the the creator creator and developer developer of of the the Dignity Dignity

Project, and as Project, and as aaparty partytotothe theTPH TPHContract, Contract,the theOAG OAG can cansufficiently sufficientlyprotect protectthe theORAC's ORAC's

interest in in the the project projectand expenditureofofthe andexpenditure theORAC ORAC Fund. Moreover, as Fund. Moreover, as the the Chairperson Chairperson of of the 4 ORAC,Defendant ORAC, Moylanisis positioned Defendant Moylan positioned to to represent represent the the ORAC's interest in this ORAC's interest this project. project.4 Given Given

the OAG and the OAG and AG'sdirect the AG's directroles roles ininall allofofthe thematerial material facts facts relative relative to to the Dignity Dignity Project, and

4 Chairperson Moylan conceded at the June 5 hearing that he has not convened die ORAC to 4 Chairperson Moylan conceded at hearing that he has not convened the ORAC meet about this meet this litigation litigation and the the injunction injunction against the the Dignity Dignity Project.

ORiGiNAl RHGHNAL CV0290-25 DECISION AND AND ORDER GRANTING PRELIMINARY TNJUNCTION GRANTING PRELIMINARY INJUNCTION Page 11 Pag ll AND DENYING MOTIONS TO DISMISS; AND DENYYNG DISMISS; PRELIMINARY PRELIMINARY INJUNCTION

the ORAC's the standingasasaa consulting ORAC's standing consultingbody bodyand and aa non-party non-party to to the contract contract at atissue, issue,the theORAC ORAC is

neither necessary necessarynor norindispensable. indispensable.The The Court Court DENIES DENIES this Motion Motion to Dismiss.

B. Motion B. MotiontotoDismiss Dismiss-- Failure Failure to to Exhaust Exhaust Administrative Administrative Remedies, Remedies, Lack Lack of Standing and Lack of Jurisdiction Lack of

Defendants next Defendants next contend that the the Court Court lacks lacks subject subject matter matterjurisdiction jurisdiction under under Rule Rule

l )( because 12(b)(1) because Governor Governor Leon "failedto Leon Guerrero "failed to file filethe therequisite requisite protest protest and and appeal before

the Public Public Auditor." Mot. Dismiss Auditor." Mot. Dismiss Failure Failure to to Exhaust Admin. 9, 2025). Remedies at 3 (May 9, Admin. Remedies

Further, they assert Further, assert that thatthe theGovernor Governor lacks lacks standing because she "is standing because not directly "is not directly affected affected by any

aspect of aspect of ORAC" andthat ORAC" and thatstanding standing does does not not exist exist for for the Governor because the the Guam Guam

Legislature provided Legislature the AG provided that the AG is the official to legally official to legally review review procurements. Id. at procurements. Id. at 4.

Governor Leon Governor LeonGuerrero Guerreroresponds responds that that she she was was not not required required to to exhaust administrative remedies remedies

prior to prior to bringing bringing this this action as she action as she is is not not an actual actual or prospective bidder, offeror offerer or contractor

under 55 GCA GCA §§ 5425. 5425. Opp'n Opp'nDefs.' Defs.' Mot. Mot.Dismiss Dismiss_-Failure Failureto to Exhaust Exhaust Admin. Admin. Remedies Remedies at at 3

(May 29, (May 29, 2025). The The Governor Governorstates states that that her her injury injury stems stemsfrom theOAG's fromthe OAG's "violation of the "violation of the

Governor's right Governor's right and duty duty to to review, review, approve approveand/or ardor sign the the TPH Contract prior TPH Contract prior to execution

and performance" rather rather than than an injury that that stems stems from from agency action that undermined undermined one's

opportunity to participate fairly opportunity in the fairly in the procurement Id. Further, procurement process. Id. Further,she sheaddresses addresses the

OAG'sargument OAG's argumentthat thatshe she lacks lacks standing standingand and emphasizes emphasizes that that she she has not alleged an injury based

on the ORAC's actionsand ORAC's actions andthat thatshe she has has standing due to to rights rights vested vestedin in the theGovernor Governor exclusively exclusively

through Guam Id. at Guam law. Id. at 4-5.

Section 5425(a) states that"any states that "anyactual actual or or prospective prospective bidde,~ bidder, ojferor, ojferor, or or contractor contractor who

may be aggrieved aggrieved in in connection connection with with the method of of source source selection, selection, solicitation or award of a solicitation or

contract, may contract, may protest protestto tothe theChief ChiefProcurement ProcurementOfficer, Officer, the Director of theDirector of Public Works or Public Works or the the head

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of a purchasing agency." of agency." (Emphasis added). The Governor, added). The Governor, however, however, isis not not an an actual or

prospective bidder, prospective bidder, offerer, offeror, or or contractor. As Asestablished, established,the the Governor Governorwas wasnot notaa party party to to the the

TPHContract. TPH Contract. The Theadministrative administrativeremedy remedythat thatDefendants Defendants contend contend the the Governor Governor has failed to

are in exhaust are in fact fact not not available available to to her. As such, there is her. As is no no way way for the the Governor Governor to to have have failed failed

to exhaust this this administrative administrative remedy.

The Court The Court thither further disagrees disagrees with with Defendants' Defendants' assertion assertion that that the Governor lacks standing. Governor lacks

Defendants claim Defendants that under 5 GCA claim that GCA §§ 30201 30201 and and as reinforced in Won Pat in A.B. Won Pat Guam Guam Intern. Intern.

Airport Authori{y Airport Authority ex ex rel. Eoard of rel.Board of Directors Directors v. v. Moylan, ,r Guam 55 1]62,55 the 2005 Guam Moylan, 2005 the Legislature Legislature

empowered the the OAG OAG to review procurements. to review procurements. While While 5 GCA GCA §§30201 30201 may may provide that the provide that theOAG OAG

is the is the entity that reviews reviews contracts, contracts, the the Court Court does does not not interpret interpret this this to todivest divest the theGovernor Governor of of

standing to review standing to review contracts contractssubject subjectotothe theCentral CentralAccounting Accounting Act(CAA), Act (CAA), 5 GCA 22, as Ch. 22, GCA Ch. as

further further discussed discussed in in subsequent subsequentsections sectionsof ofthis thisDecision Decision and and Order. Pursuant to the Organic Order. Pursuant Organic

Act, the Act, the Governor Governor isis vested vested with with executive executive power powerand and general general supervision supervision over over departments departments and

agencies within the executive within the executive branch. branch. The TheGovernor's Governor'sstanding standing to to challenge challenge actions actions that that interfere

with these with these executive powers is supported Powers is supported by her role in ensuring the proper proper administration administration and

enforcement oflaws of laws within within the territory. territory. 48 USC USC §§ 1422. 1422. The TheGovernor's Governor'sduties dutiesand and rights rights are are

not somehow diminished not diminished because because Guam Guam law law gives gives the the AG AGthe the right right to to review review procurements. procurements.

In conclusion, In conclusion, the the Governor Governordid didnot nothave have administrative administrativeremedies remedies to to exhaust exhaust and and does not

lack standing lack standing for the reasons reasonsput putforth forthby byDefendants. Defendants.The The Court Court therefore thereforeDENIES DENIES this motion.

5 Holding that the AG's Powers are "subject to increase, alteration, or abridgment by the 5 Holding that A G's powers are "subject to increase, alteration, or abridgment by the legislature." legislature."

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C. Motion C. MotiontotoDismiss- Dismiss- Movant MovantWaived Waived the the Right to Object

Finally,the Finally, the Court Court addresses addresses Defendants' Motion Motiontoto Dismiss Dismisson onthe thebasis basis that that the the

Governor has Governor has waived the right to waived the to object objectduring duringthe theprocurement procurementprocess. process.Mot. Mot.Dismiss Dismiss Movant Movant

Waived Right to Waived Right to Obj. Obj. at Specifically,they at 2 (May 9, 2025). Specifically, theyargue argue that that five members members of of the

ORACwere ORAC wereappointed appointedby bythe the Governor or part Governor or part of the the Governor's Governor's cabinet and and Administration Administration

and through and through their theirappointment appointmentshe sheaffirmatively affirmatively took took action action to to waive waive her right right to to object. Id. at 2- object. Id.

3. Additionally, 3. Additionally,they theyargue arguethat that she she waived waived through through acquiescence acquiescence by failing failing to to object object until until three three

days before the the Dignity Project was Dignity Project was set set to to start. 4. 6 start. Id. at4.6

Governor Leon Governor LeonGuerrero Guerreroopposes opposesthe thearguments arguments that that she she has waived through the waived through the

appointment of the ORAC membersor ORAC members orthrough through acquiescence. acquiescence. She Shestates states that that the the appointment appointment of of

members to to the the ORAC did not ORAC did not "inherently "inherently imbue imbue such such individuals individuals with with the the Powers powers of of the the

appointing authority" and rather authority" and rather that thatthe Powersof thepowers of these theseofficials officials "are "are generally generally defined by their

respective enabling statutes statutesand andrelated related lawand law and regulations.Opp'n regulations. Opp'nDef. De£'s Mot. Dismiss 's Mot. Dismiss Re:

Waiver at Waiver at 3-4 3-4 (May (May 29, 29, 2025). 2025). Her Herarguments argumentscenter centeraround around the the idea idea that that the relevant relevant enabling enabling

acts do acts do not delegate approval of delegate her approval of contracts to to her appointees, appointees, or or to to the the OAG, and she herself OAG, and

did not impliedly or expressly impliedly or expressly delegate delegate this authority authority to to the theORAC Id. at members. Id. ORAC members. at 5.

Additionally, GovernorLeon Additionally, Governor LeonGuerrero Guerreroargues arguesthat thatshe she did did not not acquiesce acquiesce ro to execution or

performance of the TPH Contract without TPH Contract withouther her approval. approval. She Shestates states that she she filed filed this suit only only

6 Defendants 6 Defendants additionally argue that additionally argue thatthe theGovernor Governor waived waived her her right right to toobject objectby bynot notfollowing following provisions of provisions of the procurement procurementlaw lawto tochallenge challengeprocurement. procurement.Mot. Mot.Dismiss Dismiss Movant Movant Waived Waived Right to Right to Obj. Obj. Ar at 5. The Court 5. The Court believes believes this this argument was addressed argument was addressedinin the theMotion Motion to to Dismiss- Dismiss- Failure to Faiiure to Exhaust Administrative Administrative Remedies, Lack of Standing Lack of Standing and and Lack Lack of Jurisdiction. Defendants additionally argue that additionally argue that the theAG AG is the the Chief Procurement Officer Chief Procurement under procurement Officer under law, which law, which the the Court Court addresses addresses in in its its analysis analysis on on the the likelihood of success of the likelihood of the Governor's Governor's Motion for Motion for Preliminary PreliminaryInjunction. Id. at Injunction. Id. at 4.

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two days after Camacho Camacho was compelled compelled to approve the TPH Contract under TPH Contract under threat of of

Id. at prosecution. Id. at 7.

Here, the Court Here, Court agrees with with the Governor. The Therelevant relevantstatutes statutes do do not not delegate delegate the

Governor's approval Governor's ofcontracts approval of contracts to to her her appointees, and this this Court is unconvinced Could is unconvinced that that the

Governor delegated Governor delegated this authority authority to to her her appointees. appointees. The The Court also does not not believe believe the

Governor acquiesced; she Governor she filed filed this this suit suit promptly promptly after airerbecoming becoming aware awareof of the theOAG's OAG's

communications with with Camacho. Camacho. Therefore, the the Court CourtDENIES DENIES Defendant's Motion Motion to Dismiss Dismiss

for waiver.

Iv. IV. THE TEST TEST FORA FOR APRELIMINARY PRELIMINARY INJUNCTION INJUNCTION

The The purpose of of a preliminary injunctionisistotoprevent preliminary injunction prevent irreparable irreparable injury injuryso so as as to to preserve preserve

the Court's Court's ability ability to render a meaningful decision on meaningful decision on the Tuman Partner, the merits. Tzunon Partner, LLC v. Shin, LLC v.

2008 Guam 15 2008 15 1i2 122.2 . To succeed in in justifying justifying aa preliminary preliminary injunction, injunction, the the burden burden of of proof proof falls fails

on the movant to on to show show (1) aa threat threatof ofirreparable irreparable injury, injury, and and(2) (2)aalikelihood likelihood of succeeding on the succeeding on

merits. Sananap v. Cyji-ed, rap v. Cyfred, Ltd., Ltd., 2009 2009 Guam 13138. Guam 13 1]3 assessing these factors, the Court In assessing Court views

two as the two as not not distinct distinct tests, tests,"but "butrather theopposite ratherthe oppositeends endsof ofa asingle single•continuum 'continuum in in which the which the

an required showing required of harm showing of harm varies inversely inversely with with the the required showing of meritoriousness. showing of meritoriousness."'

Republic of Republic ofthe Philippines v. Marcos, Philippines v. F.2d 1355, Marcos, 862 F.2d 1355, 1362 1362 (9th Cir. Rodeo (quoting Rodeo Cir. 1988) (quoting

Collection, Ltd. V. West Seventh, Seventh, 812 F.2d 1215, 1217 F.2d 1215, 1217 (9th Cir. 1987). Cir. 1987).

A. LikelihoodofofSuccess A. Likelihood Success

The Court The Court starts starts its analysis analysis with providingan with providing an overview overviewofofthe the parties' parties' theories theories of of the

Leon Guerrero case. Governor Leon Guerrero presents presents two two issues issues for for the Court Court to consider: 1) the the Governor's Governor's

signature is required signature is required to toallow allow for for the the execution of the execution of theTPH TPH Contract and and 2) 2)the theOAG OAG failed to to

follow the proper follow the proper procedure for undertaking a sole sole source source procurement. procurement. Specific to the Specific to

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requirement for her signature, signature, Governor Governor Leon Leon Guerrero argues that under argues that under 55GCA GCA §§ 22601 "[a]l1 "[a]ll

contracts of contracts of whatever nature nature shall shallbe beexecuted executedupon uponthe theapproval approvalof ofthe Governor." Id. theGovernor." Id. at at 4. 4. She

argues that argues thatthe theprocurement procurementwas wasdone violation of doneininviolation of Guam Guam law, law, and and that thatthe theTPH TPH Contract

cannot be executed cannot executed until until she she provides provides her signatureof her signature ofapproval. approval. Specific to the Specific to the procurement

process, Governor Governor Leon Leon Guerrero Guerrero argues that under argues that under55GCA GCA § 5113, the the Chief Chief Procurement

Officer ofthe Officer of the GSA, GSA,not notthe the AG, AG,was wasthe theonly onlyentity entityauthorized authorizedto to procure procure the the services in in the

TPH Contract. TPH Contract. Reply ReplyMem. Mem.ininSupp. Supp. Mot. Mot.Prelim. Prelim.Inc. Inj. at at 9 (May 12, 2025). (May 12, She additionally 2025). She additionally

argues that the argues that thesole solesource sourceprocurement procurementitself itselfdid didnot notcomply comply with with the the requirements requirementsof of55GCA GCA §

5214. Id. at 5214. Id. at 9-10.

Defendants argue Defendants argue that it was authorized authorized to to undertake the sole sole source procurement procurement process

on its own on own and and that that the Governor's signature isis not Governor's signature not required required for for procurement procurement contracts contracts under under 5

GCA GCA§§5121(c). 512l(c). Opp'n Opp'nMot. Mot.Prelim. Prelim.Inc. Inj.atat12. 12.They Theyargue, argue,however, however,that that any any mistakes mistakes or

violations oflaw violations of law made made in in approving approving the the TPH TPHContract Contracthave have now now been been cured cured by the ratification ratification

Defendants state process. Defendants state that they they have have the theauthority authorityto toratify ratifyand andaffirm affirm the theTPH TPH contract

under 5 GCA GCA §§ 5452 5452 and 2 GARR§ GARR § 9106 9106and and that the OAG's that upon the OAG's finding finding of no bad ofno bad faith faith or

fraud and a determination determination that the the Contract Contract is in the best interestof best interest of the theGovernment Government of of Guam, the

Contract is ratified and affirmed Contract such that any affirmed such any violations of law violations of law regarding regarding the the Contract Contract have been

cured. Ex. cured. Ex. AG. AG.

1. The 1. TheTPH TPHContract's Contract'sViolations Violations of Guam Guam Law Law

Governor Leon Governor Leon Guerrero Guerrero must must demonstrate demonstrate aalikelihood likelihood that that the theTPH TPH Contract violated violated

law, and Guam law, and the ratification failed to ratification failed to cure these these violations. The Court violations. The Courtstarts starts its analysis by

focusing on whether there therewere violations of wereviolations of Guam Guam law.

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a. The Role The Role of of the Governor's Governor's Signature

The parties disagree on whether 55 GCA The GCA §§ 22601 22601 means means that the Governor's that the Governor's signature signature was

required required in order for for the the Contract Contract to to be be approved. approved. Defendants Defendants argue arguethat that5 5GCA GCA §§22601 is a

"general catch-all catch-all provision" in Guam provision" in Guam law law and and ask ask the Court Court to to follow follow the Compiler's notes on Compiler's notes

the issue. They i'Urlher issue. They further argue that that the theCourt Court should should consider consider the the Guam Guam Legislature's intent under Legislature's intent

the procurement procurement law law which which limits review of limits review of procurements procurements to to the theAG AG for for legal legal form approval approval

under under 55 GCA GCA §§ 5150. 5150. Id. Id. at at 14. 14. The Governor counters that The Governor that 55GCA GCA § 22601 to "all 22601 applies to "all

agencies subject to to the the Central Central Accounting Act"and Accounting Act" and that that attempting attempting to exempt "procured "procured

contracts" from contracts" this requirement lorn this requirement would would "essentially "essentiallyremove remove substantially substantially all all agency agency contracts contracts

that require require the thepayment payment of of funds funds through through the thecentralized centralized accounting accounting system from the

requirement." requirement." In In other other words, under this this interpretation, interpretation,55GCA GCA § 2260 22601 would only apply to I would

contracts where contracts where public public funds funds are arenot notexpended. expended. Reply Reply Mem. Mem. in Supp. Mot. Prelim. Prelim. Inc. Inj. at at 4. 4. The

Governor argues Governor argues instead instead that section 22601 operates operates in in harmony with section 5121 with section 5121 and and that that the

controls inin section fiscal controls section22601 22601 are are additive additive to to procurement procurement code code requirements requirements for for contracts

subject to to the the CAA. Id.atat5.5. She CAA. ld. Sheargues arguestllat thatunder under canons canons of ofstatutory statutory construction, construction, the two

sections are to sections to be be read read together togethersuch suchthat thatthe theChief ChiefProcurement Procurement Officer executes such contracts Officer executes

linder under§ 5121(c) Governor's approval under section 22601. 512l(c) upon the Governor's 22601. Id.

In examining In examining these these statutes, statutes, the the Court Court starts startswith with their their plain Chargualaf plain language. Char v. g ualafv.

Govt' of Govt' of Guam Guam Ret. Ret. Fund, 17 'If1]17. 2021 Guam 17 Fund, 2021 If there 17. If there appears appearsto tobe beaaconflict conflict between the

statutory language, statutory language, the the Court Court "must "must try to to read read the theapparently apparentlyconflicting statutes in a conflicting statutes

"ascertain the intent of harmonious manner" to "ascertain the legislative ofthe legislative body and construe the the law law

accordingly." InIn re accordingly." re Lean Leon Guerrero, Guerrero,2023 2023 Guam Guam11 'I[ 11 1]38 (quoting People People v. Reselap, 2022 Guam

th Cir. 1999)). In determining legislative intent, "a 'If]54, 21 54; Karlin Karlyn v. v. Foust, 188 F.3d 446, Faust, 188 446,470 470 (7 (7th Cir. 1999)). In determining legislative "a

OR!GiNAl URHGHNAL CV0290-25 DECISION AND ORDER GRANTING DECISION AND GRANTING PRELIMINARY PRELIMINARY 1NIUNCTION INJUNCTION Page Pa 17 ge 1 AND DENYING AND DENYING MOTIONS MOTIONS TO TO DISMISS; PRELIMINARY DISMISS; PRELIMINARY INJUNCTION INJUNCTION

statute should statute should be be read read as as aawhole, whole, and and therefore, therefore,courts courtsshould should construe construe each each section section in in

conjunction with conjunction with other Sumitomo Const., other sections." Sumitomo Const., Co., Co., Ltd. Ltd. v. v. Govern/nent Government of ofGuam, Guam, 200 2001I

Guam ,i 17. 23 1] Guam 23 17. The The Court "must read Court "must read the statutes statutesto togive effectto give effect eachififwe toeach we can can do do so sowhile while

preserving their sense sense and and purpose" purpose"such suchthat that"no "nopart partwill will be be inoperative inoperative or superfluous." In re orsuperfluous."

Leon Guerrero, Leon Guerrero, 2023 Guam Guam 11 ,i 52 (quoting 11 1152 Watt v. (quoting Watt v. Alaska, Alaska, 451 U.S. 259, 451 U.S. 259,267, 101 S.Ct. 267, 101 1673, S.ct. 1673,

L.Ed.2d 80 68 L.Ed.2d (1981)); In re People, 2024 Guam 171] 80 (1981)); i! 17 17 (quoting People People v. v. Taisacan, 2023 Taisacan, 2023

Guam 19 ,i 50).ItItisisimportant Guam 19150). importantfor forthe theCourt Courttoto"not "notbe beguided guidedby by aa single single sentence sentence or member of of

a sentence, sentence, but butlook look to tothe theprovisions of the provisionsof thewhole whole law, law, and andto toits itsobject objectand policy." In re andpolicy."

i! People, 2024 Guam 171117 (quoting In re Guardianship Guardianship of of Moylan, Guam 15 Moylan, 2021 Guam ,i 15 1]36).

Relative to Relative to whether whether the the TPH TPHContract Contractrequires requires the the Governor's Governor's signature, signature, the Court

considers the context of the context of this specific transaction. transaction. What What the the Court Court is is presented presented with with is is aa document

with the with of a contract; the hallmarks of contract, it it is is titled titled "Agreement," "Agreement," has has aa space spacefor foraaDOA DOA Contract

number, it number, it is fully fully executed executed by by the the contracting contracting parties, parties, and itIr contains contains all all pertinent terms. In pertinent terms.

becoming aa contract becoming contract binding the OAG, binding the OAG,an anentity entity under under the the Government Government of of Guam, Guam, itit appears appears

unavoidable unavoidable that on on its its plain plain terms, terms,section section22601 22601became became applicable.5 5GCA applicable. GCA §§22601 ("[a]ll ("[a]Il

contracts of whatever nature shall shall be executed executed upon upon the the approval approval of of the the Governor"). Governor").

line with In line with other other guiding guiding principles principlesofofstatutory statutory interpretation, interpretation, the Court considers not

just section just section 22601, but rather rather how how other other pertinent pertinent statutes statutesapply applyand andharmonize. harmonize. For For example,

the the Court Court recognizes recognizes some some limits limits on the the Governor's Governor's access access to tothe theORAC ORAC funds, evident by by how how

the Legislature set up the Fund to be "separate and Legislature set and apart apart from from any any other funds of other funds of the the Government Government

of of Guam, including including the General General Fund." 55 GCA GCA§ §221702(a). 221702(a). The TheLegislature Legislatureensured ensuredthat that the the

ORACFund ORAC Fundwas wasnot notsubj subject act to any transfer authorityby transfer authority bythe Governor. Id. theGovernor. Id. However, However, the

OR!GINAl RHGHNAL CV0290-25 0290- DECISION SI ON AND AND ORDER ORDERGRANTING GRANTI NGPRELIMINARY PRELI MI NARY INJUNCTION I NUNCTI Page Pag 18 e 1 AND DENYING DENYING MOTIONS MOTIONS TO TO DISMISS; PRELIMINARY DISMISS; PRELIMINARY INJUNCTION INJUNCTION

Legislature ensured Legislature ensured there were still standard controls over funds received into the Fund, by still standard

compelling compelling the OAG to the OAG to remit remit funds to to the theTreasurer Treasurerof ofGuam. Guam.55GCA GCA §221702(d). 221702( d).

By placing By placing funds funds under Treasurer of under the Treasurer of Guam, Guam, the theLegislature Legislature placed placed the theORAC subject ORAC subject

to the the CAA, and the CAA, and the laws laws thereunder thereunder including section 22601I relative to including section to contracts. contracts. Again, the Again, the

CAAand CAA andsection section22601 2260 Idictate dictatethat thatcontracts contracts of of"whatever "whatevernature" nature" must must be be submitted submitted to to the

Governor for Governor for her signature and and approval. approval. Moreover, Moreover, the Guam Supreme Court recently

determined that that "agencies "agencies subject subject to tothe theCentral CentralAccounting Accounting Act must have all Act must their contracts all their contracts

approved by by the the Attorney Attorney General General as as to to form form and and legality" under 55 GCA legality" under GCA§§22601, 2260 I, In re Leon

Guerrero, 2024 Guam Guam 18 18 1]23, referring to ,i 23, referring to the therole roleof of the theAG AG as as itit pertains pertains to to55GCA GCA §22601 § 2260 I.

But this But this logic logic must must extend extend to to the Me Governor's role under this statute. Governor's role statute. Funds Funds held held under under the theCAA CAA

must comply must with section comply with section 22601 2260 I without without exception.

Additionally, Defendantsacknowledge Additionally, Defendants acknowledgethat that the TPHContract the TPH Contractwas wassubject subject to to the

requirements of55GCA requirements of GCA § § 22602-a 22602-a provision provision the the AG AGhimself himselffollowed followedwhen whensending sending the the

Contract to to DOA for registration. DOA for registration. IfIfthe the Fund Fund isis subject subject to the the requirements requirementsof of the theCAA CAA and

Chapter Chapter 22, even even to to the the point point that that Defendants Defendants accept accept that thatthe dieContract Contractisis subject subjectto to55GCA GCA §

22602, then then itit is is likely likely subject to the the requirements requirementsof of 55GCA GCA §§ 22601. I.

The Court also The Court also considers considers the the nature nature of the Governor's duty in Governor's duty in approving approving contracts contracts under

the CAA. Whenthe CAA. When theGovernor Governorexercises exercisesan anapproval approvalunder under section section 22601, 22601, she is providing providing an

officialpronouncement official pronouncementhat thatthe the contract contractisis"good" "good"ororthat thatthe thecontract contracthas has passed passed her her judgment.

See State Stale v. v. Smith, Smith, 57 P. 499, 499,451 451 (Mont. 1899), Ellison v. 1899); Ellison v. Oliver, Oliver, 227 227 S.W. S.W. 586, 589 (Ark. 586,589

1921 Huntt 1921); Hunts v. Gov 't't of of Virgin Virgin Islands, 382 F.2d 38, 46-47 46-47 (3d (ad Cir. Cir. 1967). This isis aa substantive 1967). This substantive

rather than rather than aa ministerial ministerial duty, and and in in line with her responsibility with her responsibility to to ensure ensure the integrity of of the the

centralized financial system system and the the health health of of overall overall government governmentfinances. finances. This This Court is not Court is

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willingtotofind willing findthat that her her job in in approving approving contracts contracts be reduced reduced to toaarubber rubberstamp stampfollowing following an anAG AG

contract review. review.

As a final As note, the Court final note, Court addresses addressesDefendants' Defendants'urging urgingtotofollow follow the the Compiler's Colnpiler's Notes.

Beneath section 22601, 22601, the the Compiler Compiler directs the the reader readerto to55GCA GCA § 5121 5121 relative relative to to "execution "execution

of contracts of contracts made made pursuant pursuanttotothe theProcurement ProcurementLaw." Law." Under Under section 5121, 5121, the the Compiler Compiler

explains that the theLegislative Legislative Committee Operations "determined Committee on General Governmental Operations "determined that that

neither the Attorney Attorney General nor nor the Governor should be Governor should be required required to to sign sign procurement procurement contracts. contracts.

However, since However, since existing existinglaw lawstates states that that all all contracts contracts are are not not executed until signed by the until signed the

Section must Governor, this Section must state state when when procurement contracts contracts are executed. If the are executed. the Attorney Attorney

n General or the the Governor Governor wish to review any contracts, contracts, this this Section Section will will not prohibit prohibit it."

Defendants point Defendants point to two notes as to these two as conclusive conclusive authority that the the Governor Governor does not sign

procurement contracts, procurement such as contracts, such as the theTPH TPH Contract.

However, However, as as explicitly explicitly provided provided by by 11 GCA GCA§§101(a), l0!(a), "Annotations "Annotationsand and comments comments are are not

part of the the law." Sincethe law." Since theCompiler's Compiler'snotes notesare arenot notlaw, law,totothe theextent extent the the notes notes have any

persuasive value, they persuasive they must must also also be be consistent consistent with with the principles of the principles of statutory statutory interpretation. interpretation. But But

the Court Court having engaged a plain analysis and construed the plain language analysis the relevant relevant provisions provisions to

harmonize as much harmonize as much as as possible, possible, and and having having arrived arrived at at a different conclusion than that conclusion than that reached by

the Compiler, Compiler, means the Compiler's notes cannot Compiler's notes cannot be adopted adopted in in this this instance. In other words, instance. In

how the how the Compiler Compilerconstrues construes the the interplay of two interplay of two separate separate provisions provisions of Title 55 do of Title do not not supplant supplant a

plain meaning plain meaning statutory directives of statutory analysis, nor the directives of the the Guam Guam Supreme Court Court to to harmonize harmonize

statutes together. statutes

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Based on Based on the the above above statutory statutory analysis, the Court Court finds that the the Governor Governor has has illustrated illustrated

the likelihood ofsuccess likelihood of success on on the the merits in in proving proving that that she was deprived of her executive right

and duty duty to to approve approve the theTPH TPH Contract.

b. b Motion to Motion to Dismiss for for Lack of of Jurisdiction

Before timing Before turningtotothe thealleged allegeddefects defects ininthe the sole sole source source procurement, the the Court Court briefly briefly

addresses Defendants' addresses Defendants' motion motion to to dismiss dismiss this this suit suit for lack of for lack jurisdictionarguing ofjurisdiction arguing that that 1) I)

Governor Leon Governor Leon Guerrero's Guerrero'ssignature signature isis not not required required for for procurement procurement contracts contracts and requiring so

would halt would halt the the Government's Government's procurement procurement system and 2) the system and the Governor's Governor's request to to sign sign is is now now

moot. They moot. Theyargue arguethat thatbecause ofmoistness because of mootness there there is no longer longer aa case or controversy and as such

subject matter matterjurisdiction jurisdiction does doesnot notexist. 7 Mot. Dismiss Lack exist.7 Mot. Dismiss Lack of Jurisdiction at 1I (May 12, Jurisdiction at 12,

Regarding their Regarding their first first argument, argument, Defendants claim that the claim that the Guam Guam Legislature Legislature neither

requires nor mandates mandates that thateither eitherthe theAG AG or or the theGovernor Governor sign sign the the final final contract, contract,per per55GCA GCA §

512l(c). Mot. 5121(c). Mot. Dismiss LackofofJurisdiction DismissLack Jurisdictionatat3.3. They Theyargue arguethat that requiring requiring otherwise

"jeopardizes years "jeopardizes of procurement years of procurement contracts entered entered into, into, including including current procurements, procurements, from from

allowing private being deemed as non-enforceable allowing private parties to renege, back back out out and challenge

otherwise enforceable enforceable contracts contractsthat flat did did not not include include the theGovernor's signature." Id. Governor'ssignature." Id. Regarding Regarding

their second argument, argument, Defendants Defendants state state that thatthey theyhave havenow nowprovided provided the theGovernor Governor with with an

opportunity to sign sign the the TPH Contract which TPH Contract which makes makes equitable equitable relief relief moot moot since since they they have

reasonably cured reasonably cured her her grievance, grievance, and the Court can no longer Court can longer grant grant the relief Id. at requested. Id. relief requested. at 4-6.

7 7 Defendants do not state state which which rule they are moving under, but the Court moving under, Court interprets this argument to to mean mean that thatthey theymove moveunder underGGRCP RCP 12(b)(1). l 2(b 1

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The Governor The Governor counters counters arguing that that 55 GCA GCA §§ 5121(c) 5121(c) does not repeal repeal or or amend amend55GCA GCA §

22601, which which the the Court Court has hasjust justdiscussed. discussed.Additionally, Additionally, she she offers offersan anOAG OAG Memo that Memo that

distinguishes offers offers from from purchase purchaseorders. 8 orders.8 Opp'n Opp'nDef. 's Mot. Def.'s Mot.Dismiss Dismiss Lack Lack of of Jurisdiction Jurisdiction at ate4

(May29, (May 29, 2025), 2025); Deal. Deel. Counsel Counsel in in Supp. Supp. Opp'n Defs.' Mot. Dismiss, Ex. Opp'n Dens.' Ex. 22 at at 2 (May 29, 2025). (May 29,

With regards to Defendants' arguments With moistness, the arguments on mootness, theGovernor Governor emphasizes emphasizes that that55GCA GCA §

22601 requires Defendants 22601 Defendants to to obtain obtain her her approval approval and and signature, not just the opportunity signature, not opportunity for her

approve contracts, to approve contracts,and andasasuch sucher her claim claim is is notnot moot. moot. De£'sMot. Opp'nDef.'s Opp'n Mot.Dismiss Dismiss Lack Lack of of

Jurisdiction at 11.

Because itit has Because has found that section section 22601 22601 applies applies to to the theTPH TPH Contract, the the Court Court also finds

that that the theGovernor Governor has hasjurisdiction jurisdiction to tofile file this this matter. matter. The The Legislature Legislature provided provided the the Governor Governor with with

the power power to to approve contracts contracts under under the die CAA; howthe CAA; how theCoup*t's Court's determination determination impacts the

processing of procurements does not change its processing of its analysis. Moreover, because analysis. Moreover, because she she refitses refuses to sign

the TPH Contract, Contract, the matter matter is is not not moot. G'smotion The AG's moot. The motiontotodismiss dismissbased based on on jurisdiction jurisdiction and and

mootness is DENIED. moistness D ENI

c. c. Sole Source Violations

Turning back to Turning back to the merits merits of of this this action, action, Governor Governor Leon Leon Guerrero alleges that that the theTPH TPH

Contract Contract fails to comply comply with with sole sole source source procurement requirements enumerated procurement requirements enumeratedin in55GCA GCA §

8 8 The The Governor explains that Governor explains that a "purchase "purchase order is is merely the offer offer portion of of the several several elements required to compose compose aa contractual arrangement" arrangement" and that "a "a contract arises after the vendor's acceptance of vendor's of the purchase order." order." Id. at 55 (citing GulfStates (citing Gulf States Utilities Utilities Co. Co. VV NE/ NEI Elec. Prod., Inc, Peebles Elem. 819 F. Supp. 538,549 Inc, 819 538, 549(M.D. (M.D. La. La. 1993)). TheGovernor l993)). The Governorfurther further cites cites the the OAGmemo OAG memothat thatstates states certain certain purchases, purchases, such such as as professional services, or, professional services, or, in in the the case ofleases, leases, may require "full-fledged narrative or sometimes multiple "lUll-fledged narrative pages," must multiple pages," must be be memorialized memorialized in in writing ififits writing itsterm term exceeds exceeds one one (1) ( 1) year, year, or require "several or require "several pages pages of of terms." terms." Id. Id. at 7; 7, Deel. Decl. in Supp. Counsel in Supp. Opp'n Opp'n Defs.' Defs.' Mot. Mot.Dismiss, Dismiss,Ex. Ex.22atat2. 2. The Thememo memostates states dirt thatininthose those cases, cases, the documents documents are are effectively effectively aa "regular "regular contract contract which which needs needs to to be bereviewed reviewed by by the the[OAG] [OAG] and approved by the the Governor." Id.; Deel. Governor." Id., Counsel in Decl. Counsel in Supp. Supp. Opp'n Opp'n Dens.' Defs.' Mot. Dismiss, Ex. Mot. Dismiss, Ex. 22 at at 2. 2.

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Id. at 5214. Id. at 6. 6. The TheGovernor Governorasserts asserts that that the the Chief Chief Procurement Procurement Officer Officer of the GSA was of the was the the

only entity only authorized to procure the services in the TPH entity authorized Contract arguing TPH Contract arguing that that the the procurement

was for was for non-professional non-professional services, services, however, the OAG asserts that there OAG asserts therewere wereno noviolations violations of of

Guam Id. at Guam procurement law. Id. at 13, 13; Opp'n Mot. Prelim. Opp'n Mot. Prelim.Inc. Inj. at 12. The Governor 12. The Governor further further alleges

that even even if if the theAG AG was authorized to undertake undertake aa sole sole source sourceprocurement, procurement,the theOAG OAG failed failed to

comply comply with with55 GCA GCA§§§§5141(b) 514l(b)(training (trainingrequirements), requirements),5214(0) 52l4(c) (reporting (reporting requirements) requirements) and

5214(d) (determination of fair and of fair and reasonable price price requirements).

The Court starts The Court starts with whether the AG with whether had the AG had the authority authority to to engage in the sole source

procurement process. 55 GCA GCA§ §5214(a)(1) 5214(a)(l)states states that that aa sole sole source source procurement procurement can can be done by

the Chief Procurement Officer, Chief Procurement the Director Officer, the Director of ofPublic PublicWorks, Works,the thehead head of ofa purchasing agency, a purchasing agency, or

a designee designee of of either eitherofficer officer above above the thelevel levelof of the theProcurement ProcurementOfficer. purchasing agency is Officer. A purchasing

"any governmental "any governmental body other than than the theChief Chief Procurement ProcurementOfficer Officer or or the theDirector Director of of Public Public

Works which Works which is is authorized authorized by this Chapter or or its its implementing implementing regulations, regulations,or orby by way way of of

delegation from from the the Chief Chief Procurement Procurement Officer, Officer, to to entire entireinto intocontracts." contracts." 55GCA GCA § 5030(q). 5 § 5030(q).

GCA GCA§§5121(a) 512l(a)states states that that

for the purpose purpose of of procuring procuring the services services of of accountants, accountants, physicians, physicians, lawyers, lawyers, dentists, licensed licensed nurses, other other licensed licensed health professionals and other professionals and professionals, any professionals, any governmental agency of Guam agency of Guam may may act act as as a purchasing agency and contract on on its own own behalf for such behalf for such services, services, subject to to this Chapter and regulations promulgated by the regulations the Policy Office, but Policy Office, but this Subsection shall not authorize the procuring of such services where any the procuring any given given governmental governmental body is otherwise prohibited otherwise prohibited from from procuring procuring such such services.

The AGtestified The AG testified that that the "professional services" services" of of the the Dignity Project were Dignity Project were removed removed from from the

sole source procurement, leaving sole leaving the hotel hotel and and meal meal aspects aspectstotobe beprocured. procured. Given Given that that the theAG AG

himselfstated himself stated that professional professional services were removed from the procurement, the the Court Court finds finds it

unlikelythat unlikely that the AG can be AG can be considered considered a purchasing agency agency under under 512l(a). 5121(a). Thus, Thus, without without

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another statutory another statutoryauthorization authorizationor ora adelegation delegationfrom fromthe theCPO CPO or orDPW, DPW, the the Court Court finds finds it it unlikely lmlikely

the AG that the AG can be considered a purchasing agency to do a sole source procurement for non-

professional services under 55 GCA 5214(a)(l). GCA 5214(a)(1).

The AGalso The AG alsoargues argues that that he he is is the the "procurement "procurementofficer" officer" of of the theOAG, OAG, authorizing him to

conduct the procurementas the procurement asthe the"Chief "ChiefProcurement ProcurementOfficer." Officer." Opp'n Mot. Prelim. Opp'n Mot. Prelim.Inj.at Inj.at 12. 12.

However, However, 5 GCA GCA§§5030(c) 5030(c) which whichdefines defines the the CPO CPOasas "die "theperson person holding holdingthe the position position created in created in

§ 5110 of this Chapter, Chapter, as as the thehead headof ofthe thecentral centralprocurement procurement officeofofGuam." office Guam." The The Court is

unconvinced that the AG unconvinced that meets the definition of AG meets of the CPO and as CPO and as such, does does not not consider consider the theAG AG

as the the "procurement "procurement officer" officer" to satisfy the the requirements requirementsof of 55GCA GCA §§ 5214(a)(1). 5214(a)(l). Given Giventhat that the

AG is not AG is not the Chief Procurement Officer, Chief Procurement Officer, the the Director ofPublic Directorof PublicWorks, Works,the thehead head of ofaa purchasing purchasing

agency, or or aa designee designee of of either either officer officer above the the level level of of the the Procurement Procurement Officer for the Officer for the purpose

of procuring of procuring non-professional non-professional goods goods and and services, services, the AG lackedthe AG lacked the authority authority to to conduct conduct the

procurement. sole source pro cerement.

Additionally, evenififthe Additionally,even the AG AGwas wasauthorized authorizedtotoconduct conductthe the sole sole source source procurement, procurement,

involved failed to meet mandatory those involved mandatory training trainingrequirements. requirements.Under Under 55GCA GCA §§ 5141(b), all 514l(b), all

Government of Guam Government of Guam personnel personnel tasked with with the responsibility of purchasing or otherwise responsibility of

procuring goods, procuring or services, or construction goods, or construction are are required to to undertake undertake specific specific procurement

requirements. AG training requirements. Moylan, DAG AG Moylan, DAGNishihara, Nishihara,and andPauli Paulino, ro, aa general general accounting

supervisor at the the OAG whooversaw OAG who oversawthe the sole sole source source procurement procurement process, process, all all testified testified that that they

not completed the had not the procurement procurementtraining modules.AG trainingmodules. AG Moylan Test.; Nishihara Moylan Test., Test.; Nishihara Test.,

Paulino Pauli Test. Without ro Test. Withoutmeeting meetingthe thestatutes statutes training training requirements, requirements, these these individuals individuals were not

permitted to engage permitted engage in in procuring procuring goods or services.

The Court The Court finally finallyturns turnsto to the the Governor's Governor'sassertions assertions that that the procurement failed to abide

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by by 55 GCA 5214(c) 9and GCA§§5214(c)9 and(d). 10 (d). 10 During the evidentiary During the evidentiary hearing hearing Pauli ro stated Paulino stated that sole that the sole

source procurement record did not include include aa report "signed by the person or or persons persons conducting conducting

the market market research research and andanalysis" analysis" and did not include include a writing the "Chief writing by the "Chief Procurement

Officer, the Officer, the Director ofPublic Director of PublicWorks, Works,the thehead headofofaapurchasing purchasingagency, agency, or or aa designee designee of of either either

officer above officer above the the level of ofthe the Procurement Officer"that Procurement Officer" that determined determined "that "that the contract price price is is fair

and reasonable reasonable and andconsistent consistentwith withapplicable applicable regulations." regulations." Paulino ro Test. Even Even under under the

OAG'sown OAG's owntheory thatititwas theorythat wasentitled entitledto to conduct conduct aa sole sole source source procurement, it failed to abide by

requirements of the requirements of 55 GCA GCA §§ 5214(c) 5214(c) and and (d) ( and, according to their witness, witness, failed to abide by

requirements of the requirements of the the sole sole source source procurement checldist. 1111Given procurement checklist. Given this this testimony, the the Court Court is

inclined to inclined to find that aa violation violation of procurement law of Guam procurement law occurred. occurred. Accordingly, the Court Accordingly, the

finds that the the Governor Governor has hasillustrated likelihood of illustratedaalikelihood on the merits with of success on with regards regards to a

to abide by failure to by Guam Guam procurement law. law.

9 9 "Prior "Prior to and as as aa condition condition of of making making any determination in in writing required under Subsection (a)(l) or (b) (a)(1) (b) of of this this Section, the purchasing shall prepare purchasing agency shall prepare a written report for the person making such making such determination, which shall include which shall includeaa detailed detailed analysis analysis of ofthe the minimum needs of minimum needs of the the government upon which government the contract which the contract is is based, based, finding from thorough finding from thorough market market research, research, and a conclusion that conclusion that will certify accurate will certify accurate and complete necessary necessary data to support their recommendation that recommendation that there there is is no no other other source source that thatwill will satisfy the the minimum needs of minimum needs of the Thereport government. The report must must be be signed signed by by the the person person or or persons conducting the market conducting the market research and analysis, and shall be made part of the procurement procurement record." record."

10 10 "A sole "A sole source source contract contract shall shall not not be awarded or be awarded or executed executedunless unlessand anduntil untilthe theChief Chief Procurement Officer, Procurement Officer, the the Director Director of ofPublic PublicWorks, Works,the thehead head of ofaa purchasing purchasing agency, agency, or a designee of either officer officer above the the level level of the the Procurement Procurement Officer, Officer, has has determined determined in in writing writing that the thecontract contractprice priceisisfair fairand andreasonable reasonableand andconsistent consistentwith withapplicable applicableregulations. regulations. Such determination shall include include relevant relevant cost cost and price information from the information from the sole sole source and comparable or substitute substitute supplies, supplies, services, services, or or construction constnlction items." items."

11 The Court notes that the Governor argues that the checklist relied upon by Defendants 11The Court notes that the Governor argues that the checklist relied upon by Defendants is outdated and and asserts asserts that thatthe theprocurement procurementfailed failed to to comply comply with both the with both the outdated outdated and updated requirements. PL requirements. 's Closing Pl.'s ClosingAre. Arg. (June (June 5, 5, 2025). 2025).

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d. Effectiveness of the Ratification Effectiveness Ratification

Since Governor Since Governor Leon Leon Guerrero Guerrero isis likely likelytoto prove prove that that there there were were violations violations of of Guam Guam law, law,

to likely succeed in this case, likely succeed case, Governor Governor Leon Guerrero must Leon Guerrero must also demonstrate that that the die ratification ratification

was not effective. effective.

She correctly points She points out out that ratification ratification can only occur occur post-award. DI In aa pre-award

setting, the the law law restricts restricts remedies remedies to tocorrect correctaaviolation violation oflaw of law to to cancellation or a revision of cancellation or of the

award. 55 GCA procurement or proposed award. GCA §§55451; 4 5 , see see also 2 G A R R § 99105(b) GARR§ 1 (for (f o r aa remedy prior

to award "a "a finding by the Procurement Procurement Officer, Officer, after consultation consultation with the Attorney Attorney General,

that that the thesolicitation solicitation or or proposed proposed award awardisisin in violation violation of of law will constitute aa cogent will constitute cogent and

12 compellingreason compelling reason to to cancel cancelor orrevise revise aa solicitation solicitationororproposed proposedaward"). award").12

The Governor argues The Governor argues section section 5451 5451 applies applies because because the the Contract Contract has has not not been been awarded yet

because it because Ir has notbeen has not beenapproved. approved. As As such, the Contract Contract must be be cancelled cancelled or revised.

Defendants respond Defendants respond that that the Contract has has been been awarded, awarded, and and as as such suchthe theAG AG is able to to ratify the

as contract in its role as the the "head "head of of aaPurchasing Purchasing Agency." Agency.

Here, the Court agrees agrees with with the the Governor. As the Governor. As the Court Courthas has found found that that the Governor Governor has

a likelihood ofsuccess likelihood of success on onits its argument argument that that the the Contract Contract was was not not approved, approved, itit isis only only logical that logical that

due Contract has the Contract hasthus thusnot notyet yetbeen been awarded.This, awarded. withthe combinedwith This,combined theviolations violations of of both both55GCA GCA § §

22601 and 5 GCA GCA §§5214, 5214, means means that the Contract that the Contract can can only only be be cancelled cancelled or or revised revised to to comply comply

with Guam with Guam law. law. ItItisisnot notsubject subjectto to ratification, ratification, and and thus thus the AG's efforts do AG's efforts do not not cure cure the

violations of of Guam law.

12 12 TheGARR The is more GARR is more specific specific than than the the procurement law, however the law, however twodo thetwo donot notconflict. conflict. As As such, the the Court relies on Court relies on both both the theGCA GCA and GARR in conducting GARR. in conductingits its analysis analysis.

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Even ififthe Even the Court Court were were to to consider considerthe the Contract Contractininthe the post-award post-award setting, setting, the Court Court does

not not believe that the the AG AG can be successful successful in in ratification. ratification. 55 GCA GCA§ §5452 5452states states that "if after that "if after an

award it is determined that that aasolicitation solicitation or awardof or award of aa contract contractisisin inviolation violation oflaw, of law, then: then: (1) (1) if if

the person awarded awarded the the Contract Contract has has not not acted acted fraudulently fraudulently or in in bad faith: faith: (A) (A) the contract may may

95 be ratified and affirmed, affirmed, provided provided itit isis determined determined that that doing doing so so is is in in the interests of the best interests of Guam." Guam.

2 GARR§ GARR § 9l06(a) 9106(a)states statesthat that"upon "uponfinding findingafter afteraward awardthat that aa territorial temtoriaI employee employeehas has made made an an

unauthorized award of a contract or or that thataasolicitation solicitation or or contract contractaward awardisisotherwise otherwisein inviolation violation

oflaw of where there law where there is is no finding of offraud fraud or or bad faith, faith, the the Chief Chief Procurement Procurement Officer, Officer, the

Director ofPublic Director of PublicWorks, Works,ororthe the head head of ofaa Purchasing Purchasing Agency Agency may may ratify ratify or or affirm affirm the the contract contract

or terminate it in accordance or accordance with with this this Section Section after after consultation consultationwith with the theAttorney Attorney General." General."

The Court The Court has has discussed how the AG is not AG is not the Chief Procurement Officer Chief Procurement Officerand and isis not not the head of the head of

a purchasing agency agency for for the the procurement procurement of of non-professional non-professional goods goods and and services. Therefore, the services. Therefore,

AG is unable AG is unable to have have the authority authority to to ratify or affirm the TPH TPH Contract Contract in in accordance accordance with 2

GARR GARR§§ 9106(a) 9106(a)toto cure cure violations violations of of Guam law.

2. Irreparable Injury

The Court The Court has has found that that Governor Governor Leon has demonstrated Leon Guerrero has demonstratedaalikelihood likelihood of of

success based success based on on violations violations of of Guam Guam law. Numerous Numerous courts courts have have recognized that that the theviolation violation of of

a statute statute constitutes constitutesan anirreparable irreparableinjury injury for for the thepurposes purposesof ofpreliminary preliminary injunctions. Fleet Nat. injunctions. Fleet

Bank v. Burke, Bank v. Burke, 727 727 A.2d A.2d 823, 829 829 (Conn. (Conn. 1998) 1998) ("violation ofaa statute ("violation of statute ordinarily ordinarily presumes presumes

irreparable harm warranting injunctive irreparable injunctive relief'); v. Gonzalez, Millerv. reliei"), Miller Gonzalez, 239 239 P.3d P.3d 163, 163, 176 (Okla.

Civ. App. 2010) ("a Ci violation of ("a violation of aa state statute is is an an injury injury to to the the State and and its its citizens, citizens, and a

continuing violation violation is an irreparable inepaxable injury injury for for which injunctive relief which injunctive relief is is available); Wyland v. Wyland v.

West Shore West Shore School Dist., 52 A.3d 572,583 A.3d 572, 583 (Pa. (Pa. Commw. Commw. Ct. 2012) 2012) ("failure ("failure to to comply with a comply with

OR!GiNAl RHGHNA CV0290-25 DECISION AND ORDER DECISION AND ORDER GRANTING GRANTING PRELIMINARY PRELIMINARY INJUNCTION PPage a g e 27 AND DENYING DENYING MOTIONS MOTIONS TO TO DISMISS; PRELIMINARY DISMISS; PRELIMINARY INJUNCTION INJUNCTION

is sufficiently statute is sufficiently injurious injurious to to constitute constitute irreparable irreparable harm); harm), Public Service Co. of Public Se/'viee ofOklal1oma Oklahoma v. v. g

Duncan Public Duncan Authority, 248 P.3d 400,403 Utilities Authority, Public Utilities 403 (Okla. (Okla. Civ. Civ. App. App. 2010) 2010) ("violation ofa ("violation of

statutory right thus thus constitutes irreparable irreparable harm), harm); Long Long Term Term Care Care Pharmacy Pharmacy Alliance Alliance v. v.

F.Supp.2d.282, 294 (D. Mass. 2003) ("irreparable harm Ferguson, 260 F.Supp.2d.282, harm can be presumed from the

statutory violations statutory violations at issue here"). Based on here"). Based on the the sheer fact that that the theContract Contractviolates violates Guam Guam law,

the the Court Court believes believes that thatsufficient sufficient irreparable irreparableinjury injurywill will result without without aa preliminary preliminary injunction.

The Court would The Court wouldbe beremiss remissnot notto to address address the underlying and yet significant underlying and other harm significant other harm at

issue-the issue the services provided to to Guam's population under the Guam's homeless population the Dignity Dignity Project.

Defendants urge Defendants urge this Court Court to to balance balance the the harm experienced by that population against the population against

Governor's right Governor's right and and responsibility responsibility to to sign sign contracts. contracts. Indeed, Indeed, Mayor Mayor Rivera's testimony exposed Rivera's testimony

a slow and dysfunctional approach by dysfilnctional approach by the Government of Guam Guam to work with the work with the mayors to

address homelessness. address homelessness. She She testified testified that thatthe theDignity DignityProject Projecttackled tackledan animmediate immediateneed- need-

allowinghomeless allowing homelesswho whoare are employed employedthe the ability abilitytotorest rest and and look lookpresentable presentable for, and in tum,

keep, their their jobs. jobs. Importantly, Importantly, the theORAC's consortium of ORAC's consortium ofgovernment government and and community community leaders leaders

these services found these services provided provided under under the theDignity Dignity Project Project worthy worthy of of funding.

But the But the various various harms at issue involve not just those involve not those suffered by by this this vulnerable vulnerable

population. The population. The TPH TPHContract Contractinvolved involvedan an expenditure expenditure of of over over aamillion million dollars-untransferable dollars-untransferable

funds by the the Governor Governor but but public public funds subject to to her herreview, review,nonetheless. nonetheless. The The expenditure expenditure of of

this large sum required a careful this procurement and careful and lawful procurement and approval, approval, and and that that just just did not

occur in this case. case.

v. V. CONCLUSION N C L U S I O N AND ORDER

The Court DENIES The Court Defendants'Motions DENIES Defendants' MotionstotoDismiss Dismissunder underGRCP GRCP12(b)(1), 12(b)(l),(6), (6), and and (7). (7).

Additionally, the Court Additionally, the Court finds finds that that Governor Leon Leon Guerrero has has established established aalikelihood likelihood of of

OR!G!NAl RHGHN CV0290-25 DECISION AND DECISION AND ORDER ORDER GRANTING GRANTING PRELIMINARY INJUNCTION INJUNCTION PPage 28 age 2 DENYING MOTIONS AND DENYING MOTIONS TO TO DISMISS; PRELIMINARY DISMISS; PRELIMINARY INJUNCTION

success on the the merits merits and and an anirreparable irreparableinjury injury based basedon onthe therecord recordbefore beforeititand andthus GRANTS thus GRANTS

her Motion for Preliminary Motion for PreliminaryInjunction. Injunction. AAStatus StatusHearing Hearingtotodiscuss discussfurther further scheduling scheduling in in this this

case will be held will be heldon onJuly July23, 23,2025, 2025,atat3:00 p.m. 13 3:00P.m.13

VI. PRELIMINARY INJUNCTION UN O

Until fixrther Until further Order of of the the Court, Court, Defendants DefendantsDouglas Douglas B. B. Moylan and the Office Moylan and of the Office of the

Attorney ofGuam, General of Attorney General Guam,their theiragents, agents, servants, servants, employees, employees, assigns assigns and and attorneys attorneys are

restrained and and enjoined enjoined from from taking taking any any action action to to perform perform on, on, incur incur debt debton, on,or orutilize utilize public public

funds to pay for services rendered rendered under under the theAgreement Agreement between between the theOffice Office of of the the Attorney Attorney

General and Tropical Palm Hotel Tropical Palm Hotel for for services services including including the the provision provision of of guest guest room room

accommodations and accommodations and common common facilities, facilities,meals, meals, and and security security services, services, purportedly purportedly executed by

Defendant Douglas B. Moylan, Defendant Attorney General Moylan, Attorney General of ofGuam, Guam, on on behalf behalf of of the Office of the Office of

Attorney General on April Attorney 15, 2025. April 15,

SO ORDERED, SO ORDERED,9 9June June2025. 2025.

Ho;gEnyzE HONiEI:. ZE l\t~IRIARTE Judg'°8§ §u§eH5fdourt Judgi; Sup,eflof Qhurt of of Guam Guam -0: . ., - . .' ;, --~:: .

-:I/;. . .1-----:/. . . ,. .__ Q- , ,_'. ~✓-- / -;. , . c(. ,,,-' / -

Appearing Attorneys: Appearing Leslie A. Leslie Travis, Esq., & Jeffrey A. A. Travis, Moots, Esq., Office A. Moots, of the Governor of Office of of Guam, for for Plaintiff, Plaintiff, Honorable Lourdes Honorable Lourdes A. Leon Guerrero, Governor of Leon Guerrero, of Guam Guam Douglas o uglas B. Moylan, Mo Attorney Atto rney General G eneralof o fGuam, G uam,AAG AAG Ramiro R Orozco, Oro z c o , Esq., Es q. ,&&AAG AAG Lucas Luc ks Wood, Esq., q., for for Defendants D efendantsDouglas D ouglasB. B.Moylan Moylan & & The Offic Office of the e of the Attorney General General of of G uam

13 13 To attend To attendor orto toparticipate participate in in the hearing, you thehearing, you may may appear appear in in person person or or remotely remotely at https://guamcourts-org.zoom.us and httpsz//guamcourts-org.zoom.us andenter enterMeeting MeetingID: ID: 864 8644387 43872213, 2213,Passcode: Passcode:JEMI. JEMI.

JR!G!NAl i. RHGHNA