* * * *

* * * *

     This case came before the Court for hearing on May 15, 2001, on defendants the Congress of the Federated States of Micronesia ("Congress"), Dohsis Halbert ("Halbert"), and Peter Christian's ("Christian") Motion for Summary Judgment. Plaintiff Pohnpei Community Action Agency ("PCAA") filed an Opposition to defendants' motion, defendants submitted a reply, and PCAA submitted a response to defendants' reply. The contents of these motions is discussed further below. For the reasons stated herein, the Court will grant defendants' Motion for Summary Judgment, and will enter judgment in favor of defendants as set forth below.

     PCAA filed its complaint on July 28, 2000, alleging various claims against Senators Peter Christian and Dohsis Halbert (in their individual and official capacities), Congress, the FSM National Government, John Ehsa (in his official capacity as Director of the FSM Department of Finance and Administration ("Finance")), and Finance.

     The bases for the complaint were that (1) under instruction from Christian, Ehsa, FSM, and Finance allegedly were withholding money appropriated by the Congress to PCAA ("$32,602 Claim"); (2) Christian allegedly took a vehicle (a Feroza, worth $12,500) and a boat (the F/V Katchuo, worth $40,000) from PCAA; (3) Halbert allegedly requested money from PCAA for teachers from his election district to travel to Saipan, promised to obtain funding to reimburse this expenditure, and never reimbursed PCAA; and (4) FSM Congress allegedly failed to abide by terms of an agreement it had with the US Housing Preservation Grant ("US HPG") to provide $150,000 matching funds for a project, and PCAA was harmed as a third-party beneficiary of that agreement.

     On January 31, 2001, the parties stipulated to the dismissal of defendants FSM National Government, Ehsa and Finance. In addition, the parties filed a Stipulated Motion to Amend Complaint. PCAA's Amended Complaint is substantially the same as its original Complaint, except that it omits Count IV (the $32,602 Claim against FSM, Ehsa, and Finance) and renumbers Count V as Count IV.

     In addition, the allegations against Christian and Halbert related to the $32,602 Claim, that they were instructing the FSM, Ehsa and Finance not to release those funds to PCAA, also were omitted from the Amended Complaint.

     Defendants Christian, Halbert, and Congress essentially submitted the same answer. The FSM, Ehsa, and Finance never responded to the initial complaint and since have been dismissed from the case.

     Christian generally denies all of the material allegations in the complaint. He admits that he took temporary possession of the Feroza, but denies that it was for personal use, and he denies that he continues to use it. As for the F/V Katchuo, Christian denies that he holds title to it, and denies that it was ever in his custody or control.

     Halbert also denies all of the material allegations against him. He denies that he ever unlawfully used money from PCAA, or that he caused money from PCAA to be given to teachers for travel to Saipan. He also denies that he promised that Congress would reimburse the money to PCAA.

     Congress denies any agreement or duty to match funding from the US HPG.

     In reviewing a motion for summary judgment under FSM Civil Rule 56, a motion for summary judgment shall be granted: "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FSM Civ. R. 56(c); Kyowa Shipping Co. v. Wade, 7 FSM Intrm. 93, 95 (Pon. 1995). A moving party is entitled to summary judgment when it has demonstrated that there are no genuine issues of material fact remaining, and that it is entitled to judgment as a matter of law. See FSM Civ. R. 56(c); Kihara Real Estate, Inc. v. Estate of Nanpei, 6 FSM Intrm. 48, 52 (Pon. 1993); Alik v. Kosrae Hotel Corp., 5 FSM Intrm. 294, 295 (Kos. 1992).

     Once the moving party has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. Alik, 5 FSM Intrm. at 295; Urban v. Salvador, 7 FSM Intrm. 29, 31 (Pon. 1995); Kyowa Shipping Co, 7 FSM Intrm. at 95; FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985). The non-moving party must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. Urban, 7 FSM Intrm. at 31; Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 16 (Pon. 1989). In considering a motion for summary judgment, the facts and the inferences to be drawn from those facts must be viewed by the Court in the light most favorable to the party opposing the motion. Alik, 5 FSM Intrm. at 295. In this case, there are several factual disputes between the parties. The Court finds, however, that none of these disputes is material to the claims that have been advanced by PCAA, and that Christian, Halbert and

the FSM Congress are entitled to judgment as a matter of law on all counts of the Amended Complaint.

A. Statement of Undisputed Facts

B. Defendants' Motion

     Defendants' Motion for Summary Judgment separately requests judgment as to each count as to each separate defendant as follows.

1. Separation of Powers Doctrine

     First, defendants move for summary judgment as to Count I of the Amended Complaint, that Christian and Halbert violated the separation of powers doctrine by "implementing national laws." PCAA alleges that, by unlawfully using money from PCAA, and property from PCAA which was purchased with funds given to PCAA by the national government, Christian and Halbert essentially were attempting to usurp the powers of the executive branch, because they were determining how money appropriated by Congress should be spent.

     In their Motion for Summary Judgment, defendants point out that PCAA stated in its discovery responses2 that it does not contend that Christian and Halbert were acting in their official capacities when: (1) Christian allegedly took the Feroza and F/V Katchuo from PCAA, and (2) Halbert asked PCAA to spend money for teachers from his election district to travel to Saipan. Defendants assert that, in order to claim that there has been a violation of the separation of powers doctrine, it is necessary to allege that actions were taken by a branch of the government, in this case the FSM Congress, as Christian and Halbert both were senators in the FSM Congress at all relevant times.3

     In its Opposition, PCAA does not directly address this basis for summary judgment asserted by defendants, nor does it address the fact that PCAA's responses to interrogatories seemed to negate that its claims are against Christian and Halbert in their "official" capacities. Instead, PCAA argues in its Opposition that Christian, Halbert and Congress violated the separation of powers doctrine because they were implementing laws.

     a. Discussion

     Congress itself is not named as a defendant in Count I of plaintiff's Amended Complaint. Christian and Halbert are designated in the Amended Complaint as defendants in both their individual and official capacities. Count I of the Amended Complaint alleges three different acts which plaintiff contends violate the separation of powers doctrine. First, PCAA alleges that Christian took a Feroza vehicle from them. Second, PCAA alleges that Christian took control of the boat F/V Katchuo at the time that it was purchased with funds which were appropriated to PCAA by the FSM Congress, and that PCAA never had control of the F/V Katchuo. Third, PCAA alleges that Halbert asked PCAA to use funds appropriated to PCAA by national law to send teachers to Saipan, and that Halbert promised that he would reimburse PCAA. Plaintiff has specifically denied that any of these activities complained of in Count I of the Amended Complaint were done by Halbert and Christian in their official capacities. PCAA Responses to Interrogatories, Ex. C to Pl. Mot. Accordingly, the only issue for the Court to decide is whether the doctrine of separation of powers can be violated by a senator in the FSM Congress acting solely in his individual capacity. The Court finds, as a matter of law, that some official government action is required before a violation of the doctrine of separation of powers can occur.

     In rendering a decision, the Court must first consult and apply legal sources of the FSM. In resolving a Constitutional question, first the Court must look at plain meaning of words of the Constitution. If the Constitution is not clear as to a particular provision, the Court should attempt to ascertain the intent of the drafters by looking at Constitutional Convention and the reasons expressed for including a particular provision in the Constitution. Finally, if there are provisions in the FSM Constitution similar to provisions in other countries' constitutions, the Court may look to case law of other countries for guidance, but is not bound. Suldan v. FSM (II), 1 FSM Intrm. 339 (Pon. 1983); Alaphanso v. FSM, 1 FSM Intrm. 209 (App. 1982).

     The concept of separation of powers is inherent in the structure of the Constitution of the FSM. Each branch of the FSM government has specific powers and duties which are enumerated in the text of the Constitution. Thus, each branch should restrain itself to exercise only those powers which have been granted to it by the people of the Federated States of Micronesia in the Constitution: any power exercised by a branch of the government that is beyond that which was granted to that branch of the government by the people of Micronesia in the Constitution violates the Constitution and is null and void. The logical basis for a claim that the separation of powers of the Constitution has been violated is that one branch of the government is usurping the power of the other branch. In order to claim that one branch of the government is usurping power from another branch, it is necessary to demonstrate that it is the branch itself, through some official act, that is doing something.

     A number of cases in the FSM recognize that the FSM Constitution clearly delineates the distinct functions of each of the three branches of the FSM national government. The FSM Constitution is the

supreme law of the FSM, and any actions taken by the government which are in conflict with the FSM Constitution are invalid to the extent of conflict. FSM Const. art. II. Accordingly, any attempt by one branch to usurp the powers that the FSM Constitution explicitly grants to another branch violates the FSM Constitution and is invalid.

     The essence of the separation of powers concept is that each branch, acting within the sphere of its defined powers and subject to the distinct institutional responsibilities of the others, is essential to the liberty and security of the people. The separation of powers among the three branches is intended to be a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another.

     Cases in the FSM recognize that the power of the legislative branch of the FSM national government is limited by the FSM Constitution. For example, once the Congress has enacted a law appropriating money for certain purposes, the Congress cannot retain, for itself or for individual senators, the power to determine how that appropriated money is spent, beyond what is spelled out in the law itself. Udot Municipality v. FSM, 9 FSM Intrm. 418 (Chk. 2000) and 10 FSM Intrm. 354 (Chk. 2001). Also, Congress does not have the constitutional authority to dictate the voting requirements for the Constitutional Convention. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320 (App. 1990). Similar restrictions have been recognized on actions by the executive and judicial branches of the FSM national government. See e.g., Soares v. FSM, 4 FSM Intrm. 78 (App. 1989); Nix v. Ehmes, 1 FSM Intrm. 114 (Pon. 1982).

     In case law found in the FSM, the Udot case is instructive in determining when Congress may be found to be implementing and executing public laws in violation of the separation of powers doctrine. Significantly, the Udot case recognized that Congress may be found to violate the doctrine of separation of powers when one of its members directs how money which has been appropriated under a national public law is spent. The court in the Udot case found that the senator representing Election District No. 4 in Chuuk (Faichuk) was directing the Chuuk State Committee on Improvements Projects ("CIP") how to spend money which had been appropriated to Chuuk Election District No. 4 under Public Law 11-27. Accordingly, the Udot court found that Public Law 11-27, as applied, was unconstitutional, and issued a permanent injunction preventing the Chuuk State CIP from consulting the relevant senator before improvement projects were approved. The Court stated that:

Udot Municipality v. FSM , 10 FSM Intrm. 354, 359-60 (Chk. 2001) (emphasis added).

 Udot makes it clear that acts of individual senators can result in a public law being declared unconstitutional in its application. However, this Court finds that, at a minimum, the acts of individual senators must be acts done in their official capacities as senators to establish any constitutional violation. In the Udot case, the individual senator allegedly was involving himself in the distribution of money that had been appropriated by the Congress. In the case at bar, plaintiff merely alleges that Halbert and Christian, acting as individuals, took property from PCAA which could be traced to funding received by PCAA pursuant to national laws. These allegations, even if true, do not rise to the level of violating the FSM Constitution.

     It is only necessary to look at the different remedies requested by PCAA and by the plaintiffs in

Udot to see how the doctrine of separation of powers does not have any real application to this case. The plaintiffs in Udot requested an injunction prohibiting the Chuuk State CIP from continuing to consult the national senator in deciding which projects to fund. The injunction was granted, and presumably the remainder of the funds appropriated to Chuuk Election District No. 4 under the relevant Public Law were used for projects selected without the requirement that the national senator be consulted. In this case, PCAA requests money damages for property which lawfully was purchased by PCAA for use on two projects, and later allegedly was taken by Christian. PCAA also seeks damages from Halbert for money he requested, which was taken from funds designated by Congress for use for PCAA administration. The relevant appropriation laws in this case already had been implemented when the alleged wrongdoing occurred.

     Thus, the alleged wrongdoing in this case more accurately falls within tort law, as a conversion claim, rather than in the realm of a constitutional violation. This Court does not wish to extend the Udot decision to mean that the doctrine of separation of powers is violated every time a person, who happens to be a senator, allegedly misuses property that is traceable to an appropriation made under national law. If a senator takes a car, boat, desk, computer, or pen that rightfully is in the possession of another person or entity, he should bear the same responsibility and consequences as any other person: he could be charged criminally, or sued in a civil action by the rightful owner for conversion of that property. However, it is a fiction to say that, because the property that allegedly ended up being used by the senator is traceable to an appropriation made under national law, the senator was usurping the function of the executive branch of the government by implementing the law.

     Accordingly, the Court finds, as a matter of law, that defendants Christian and Halbert have not violated the constitutional doctrine of separation of powers, and the Court will grant defendants' Motion for Summary Judgement as to Count I of plaintiff's Amended Complaint.

     2. Third Party Beneficiary Claim

     Second, as to Count IV of plaintiff's Amended Complaint, which alleges that Congress breached an agreement with the US Housing Preservation Grant (HPG) to which PCAA was the third-party beneficiary, defendants argue that the non-existence of an agreement between Congress and the US HPG to match $150,000 in funding entitles Congress to summary judgment.

     PCAA alleges in its Amended Complaint that it sought and obtained $150,000 from the US HPG in reliance upon an agreement between the FSM Congress and the US HPG that the FSM Congress would provide $150,000 in matching funds. Am. Compl. ¶¶ 19-20, 34-37. PCAA alleges that FSM Congress did not match the $150,000, and that as a result, PCAA, as an intended beneficiary of the agreement, was damaged in the principal amount of $150,000, plus other debts which were incurred. See Am. Compl. ¶ 37(b).

     In its Motion for Summary Judgment, Congress argues that there is no evidence of an agreement between the US HPG and Congress, and that any such agreement would be illegal, as entering into such agreements is an exclusive function of the FSM Executive under Article X of the FSM Constitution.

     In its Opposition to defendants' Motion for Summary Judgment, PCAA produces (1) minutes of PCAA meetings in which the $150,000 allegedly expected from the FSM Congress was discussed, Ex. A; (2) a copy (unsigned) of PL No. 8-79, in which $150,000 was appropriated for "Special Community Projects," Ex. B; and (3) a letter, dated 10/13/94, from Lenster Joel (whom PCAA alleges worked for Senator Halbert) detailing $139,000 worth of Project Control Documents ("PCDs") which were placed on hold by the FSM Budget Office, based on instructions from "the Congress Office," Ex. D.

     However, the Court finds that there is no evidence of an agreement between Congress and the US HPG, as alleged in the Amended Complaint, and that plaintiff's claim that it is entitled to recover as a third-party beneficiary to that agreement must fail. Plaintiff's counsel essentially admitted during oral argument on defendants' Motion for Summary Judgment that there was no agreement between Congress and the US HPG. Instead, at the hearing, the agreement was characterized by PCAA as one between Congress and PCAA. Plaintiff's counsel argued that PCAA relied upon a promise made by Christian that Congress would appropriate matching funds to PCAA, if PCAA was able to secure funds for projects from outside sources. An essential element of a claim for recovery as a third-party beneficiary to a contract is that there be a valid, binding contract upon which that claim is based. It is a general principal of the law of contracts that a third party beneficiary can only recover if he is an intended beneficiary of a contract. The FSM Supreme Court has held that:

Mailo v. Penta Ocean Inc. , 8 FSM Intrm. 139, 141 (Chk. 1997) (citation omitted); see also FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67 (Pon. 2001). Clearly there must be a valid agreement between two parties to enable a third person, for whose benefit the promise is made, to sue upon it. Here, there is no evidence that Congress ever had any contact with the US HPG, let alone that there was any type of agreement between them. Accordingly, PCAA cannot claim any rights as a third-party beneficiary. The Court finds that there is no issue of material fact, and that defendants are entitled to summary judgment as a matter of law as to Count IV of the Amended Complaint.

     3. Financial Management Act

     In Count II, plaintiff alleges that Christian and Halbert violated the Financial Management Act, 55 F.S.M.C. 201 et seq., by taking and/or causing to take property bought with funds given to PCAA.

     Christian and Halbert move for summary judgment on this claim on the basis that there was no legal duty for them to comply with the Financial Management Act with regard to any of the property in question, because they were not the allottee of the funds. PCAA does not directly address this

argument in its Opposition. It is true that neither Halbert not Christian was an allottee of any funds relevant to this case. The only potential statutory violation for a non-allottee is 55 F.S.M.C. 220(3). This statute, entitled "Over-obligation of funds prohibited," provides that an officer or employee of the national government shall not "make or authorize an expenditure from, or create or authorize an obligation pursuant to any appropriation . . . for purposes other than those for which an allotment has been made." 55 F.S.M.C. 220(3).

     Viewing all of the facts in favor of plaintiff against whom summary judgment is sought, evidence shows that Christian temporarily took control of the Feroza jeep, and Halbert requested PCAA to authorize the funds for teacher travel. Congress asserts that, because it was PCAA that actually authorized the funds for the teacher travel, the Court cannot find that Halbert violated 55 F.S.M.C. 220(3). Defendants' written motion does not specifically address the allegations against Christian.

      The real issue as to Count II is (1) who should be held accountable under 55 F.S.M.C. 220(3); and (2) even if Christian and Halbert did violate this statute, whether the statute is intended to create a private right of action by a party like PCAA.

     The Court finds that this statute was intended to provide for criminal penalties for those officers and employees of the national government who misuse or misappropriate government money. Title 55 F.S.M.C. section 222 provides that anyone who wilfully violates section 220 shall, upon conviction, be fined not more than $20,000 or imprisoned for not more than 20 years, or both. This statute is not intended to create a basis for private parties to sue government officials, but for the government to be able to punish employees and officials who are found to be misusing public funds.

     This Court previously has recognized that statutes which do not, by their terms, provide private citizens with a cause of action for money damages cannot be the basis for private damages claims. See Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 292 (Pon. 1998); Damarlane v. United States, 6 FSM Intrm. 357 (Pon. 1994). In Pohnpei v. M/V Miyo Maru No. 11, the court stated that:

Id. at 292. Like the statute at issue in the M/V Miyo Maru case, the Financial Management Act does not make any provision for damages to be awarded to a private citizen based upon any violation of the Act. The Court will not infer the existence of such a private cause of action in the absence of a clear intent expressed in the statute that such a private cause of action be created. Accordingly, the Court finds that there are no issues of material fact, and that defendants are entitled to summary judgment as a matter of law on Count II of the Amended Complaint.

     4. Due Process Claim

    Halbert and Christian seek summary judgment on the grounds that (1) since the funds and property which allegedly were misused by Halbert and Christian were public funds, PCAA has no ascertainable property interest in them; and (2) because PCAA has alleged that Halbert and Christian

were not acting in their official capacities, there is no government action to support a due process violation. The Court finds that some government action must be alleged in order to support a due process claim. Because PCAA does not allege that Halbert and Christian were acting in their official capacities, there is no government action in this case. The Court finds that a party claiming a due process violation under either the FSM Constitution or the Pohnpei State Constitution must allege government action to support this claim. Accordingly, summary judgment will be entered in favor of defendants on Count III of the Amended Complaint.

      The basis for PCAA's claim is that it was denied its right to due process under Article IV, Section 3 of the FSM Constitution, and Article 4, Section 4 of the Pohnpei State Constitution. Article IV, Section 3 of the FSM Constitution provides that "a person may not be deprived of life, liberty or property without due process of law . . . " FSM Const. art. IV, § 3. Due process generally requires some form of fair hearing and rational decision making process when an important interest is at stake. In evaluating an alleged due process violation, courts usually are looking at the procedure that was followed by the government when, for example, the government is denying a benefit or taking some property from a party. Three important elements in establishing a procedural due process claim are: (1) whether the government is involved; (2) whether there is a life, liberty or property interest at stake; and, if so, (3) whether adequate due process procedures are employed by the government before a party is deprived of such an interest.

     The constitutional guarantee of due process only protects parties from governments, and those acting under them. To establish a due process claim, plaintiff must show that a government entity or official, or one acting at the direction of the government, is involved. Previous cases have recognized government action for purposes of deciding due process claims when, e.g., the Pohnpei Public Lands Authority held a hearing on a public lands lease, Etpison v. Perman, 1 FSM Intrm. 405 (Pon. 1984), and the national government acted as an employer bound by the national Public Service System Regulations, Suldan v. FSM (II), 1 FSM Intrm. 339 (Pon. 1983). Accordingly, if Christian and Halbert merely were acting as individuals and not as representatives of Congress, or at the direction of Congress, PCAA cannot demonstrate the requisite government involvement.

     In this case, PCAA is claiming that the Feroza, F/V Katchuo, and money for teacher travel were taken from them without due process, the same acts complained of in Count I of the Amended Complaint. As noted above, plaintiff specifically denied in its discovery responses that each of these actions was done by defendants in their official capacities. Accordingly, there is no government action, and there can be no due process violation. Thus, the Court will grant defendants' motion for summary judgment as to the violations of the FSM Constitution contained in Count III of the Amended Complaint.

     Plaintiff also alleges in Count III of its Amended Complaint that Christian and Halbert violated the Pohnpei State Constitution, Article IV section 4. The Pohnpei State Constitution, like the FSM Constitution, guarantees that "[n]o person may be deprived of life, liberty, or property without due process of law." Pon. Const. art. 4, § 4. No Pohnpei State Court decisions were found in which the requirement of official government action was discussed in connection with a claimed due process violation under the Pohnpei State Constitution. As a general rule the FSM Supreme Court trial division is obliged to exercise its jurisdiction and may not abstain simply because unsettled issues of state law are presented. Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988). "When the Supreme Court, in the exercise of its jurisdiction, decides a matter of state law, its goal should be to apply the law the same way the highest state court would." Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 295 (Pon. 1998) (quoting Edwards, 3 FSM Intrm. at 360 n.22).

     The Court finds that all of the Pohnpei Supreme Court cases found discussing due process violations under the Pohnpei State Constitution have discussed due process only in connection with

actions by the government or those acting under the authority of the government. See Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995) (discussing whether property damaged by persons carrying out dredging activities authorized by state officials for a public purpose entitled coastal landowners to a payment of just compensation for the damage to a fish maii which they had constructed in the lagoon); Hadley v. Kolonia Town, 3 FSM Intrm. 267, 269 (Pon. S. Ct. Tr. 1987) (discussing whether statute enacted by a municipality violated the Pohnpei constitutional safeguards of due process); Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987) (discussing whether the Pohnpei State Government firing employees violated due process).

     The Court finds that the right to due process under the Pohnpei State Constitution, like the FSM Constitution, only protects people from actions by the government. The Court already has found that there was no government action alleged as to the acts complained of in Count III of plaintiff's Amended Complaint. Because there is no government action, there can be no violation of the due process clause of the Pohnpei State Constitution. Thus, the Court also will grant defendants' motion for summary judgment as to the violations of the Pohnpei State Constitution contained in Count III of the Amended Complaint.

     Defendants' Motion for Summary Judgment is hereby granted as to Counts I, II, III and IV of plaintiff's Amended Complaint. Judgment shall be entered in favor of defendants and against plaintiff in this case concurrently herewith.

* * * *