THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Alep v. United States,
6 FSM Intrm. 214 (Chuuk 1993)

[6 FSM Intrm. 214]

TAKUO ALEP et al.,
Plaintiffs,

vs.

UNITED STATES OF AMERICA et al.,
Defendants.

CIVIL ACTION NO. 1988-1024

MEMORANDUM OF DECISION

Richard H. Benson
Associate Justice

Hearing:  September 24, 1991
Decided:  October 8, 1993

APPEARANCES:
For the Plaintiffs:          Barry J. Israel, Esq.
                                       David J. Lauth, Esq.
                                       Dorsey & Whitney
                                       Suite 200
                                       1330 Connecticut Avenue, N.W.
                                       Washington, DC 20036
                                       -and-
                                       2200 First Bank Place East
                                       Minneapolis, MN 55402

For the Defendants:     Traylor T. Mercer, Esq.
                                       Moore, Ching, Boertzel & Lawlor
                                       Suite 400, GCIC Building
                                       414 West Soledad Avenue
                                       Agaa, Guam 96910

*    *    *    *

HEADNOTES
Trusteeship Agreement
     The trusteeship agreement cannot be given retroactive effect to cover events that took place before it came into force.  Alep v. United States, 6 FSM Intrm. 214, 216 (Chk. 1993).

Trusteeship Agreement
     Monetary damages are not legal remedies available to an individual for breach of the Trusteeship Agreement, either through the treaty or as codified.  Alep v. United States, 6 FSM

[6 FSM Intrm. 215]

Intrm. 214, 217-18 (Chk. 1993).

Treaties ) Interpretation
     The ordinary or usual meaning shall be given to words, phrases, and terms in a treaty. Terms are to be considered in their context and a contrary meaning may be indicated by the context. Preparatory documents and subsequent conduct of the parties can be used to determine the parties' intentions.  Alep v. United States, 6 FSM Intrm. 214, 218 (Chk. 1993).

Compact of Free Association
     Although the Compact waives the sovereign immunity of the U.S. government, it does not create new causes of action or fashion a remedy where one was previously not available.  The Compact does not authorize monetary damages to individuals for breach of the Trusteeship Agreement.  Alep v. United States, 6 FSM Intrm. 214, 218-19 (Chk. 1993).

Civil Rights
     The FSM civil rights statute has no retroactive effect.  There is no liability under the FSM civil rights statute for events that took place prior to the effective date of the statute.  Alep v. United States, 6 FSM Intrm. 214, 219 (Chk. 1993).

Torts; Statutes of Limitation
     Claims for torts that took place before 1951 accrued, at the latest, when the applicable Trust Territory statute took effect in 1951.  Unless tolled, the statutes of limitation bar the FSM courts from adjudicating such claims.  Alep v. United States, 6 FSM Intrm. 214, 219-20 (Chk. 1993).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before the court for oral argument on September 24, 1991 on the defendants' motion to dismiss, FSM Civ. R. 12(b), and for summary judgment, FSM Civ. R. 56.  An order was filed today disposing of the issues presented.  This memorandum sets forth the reasoning supporting that order.

     The parties to this action are:

     1.  Plaintiffs:  Citizens of the FSM and residents of Fono Island, Chuuk State who were residents at the time of the alleged events, who bring this action on behalf of themselves, all other residents of Fono at the time of the alleged events and on behalf of the estates and/or survivors of the residents;

     2.  Defendants:  United States Secretaries of Defense, Navy, and Interior (in their official capacities); United States of America, "the government which served as administering authority over the islands of the Trust Territory . . . including Fono Island;" and the Trust Territory of the Pacific Islands, "the government formed by Defendant [U.S.A.] to administer the Micronesian islands including Fono."

     The plaintiffs allege in their complaint that their forced removal from Fono by the U.S. armed

[6 FSM Intrm. 216]

forces in 1945 by means of various tortious acts resulted in injuries, death and losses of property for which they were never compensated.  They assert their claims in tort, under the Trusteeship Agreement, and in deprivation of their civil rights, 11 F.S.M.C. 701.  They contend that their claims are expressly authorized by section 174 of the Compact of Free Association ("Section 174"), pursuant to which the United States waived any sovereign immunity.  They also allege that their claims are timely since they were brought within two years of breach of the obligations breached by the defendants, namely the termination of the Trusteeship Agreement in 1986.

ISSUES PRESENTED
     1.  First cause of action.  Taking as true the allegations that the removal of the plaintiffs from Fono, their consequent injuries and the failure of the defendant to make reparations during the term of the Trusteeship Agreement constituted a breach of the Trusteeship agreement, are the plaintiffs entitled to damages?  I conclude that they are not.

     2.  Second cause of action.  Taking as true that the removal from Fono and the consequent injuries deprived the plaintiffs of their civil rights, may relief be given under 11 F.S.M.C. 701(3)?  I conclude that it may not.

     3.  Third (Assault and Battery), Fourth (Infliction of Mental Distress), Fifth (False Imprisonment), Sixth (Conversion), and Seventh (Trespass) causes of action.  Do these causes of action state claims upon which relief can be granted?  I conclude that they do not.

I.  RIGHT TO MONETARY DAMAGES FOR BREACH
OF TRUSTEESHIP AGREEMENT
     The first cause of action of the amended complaint seeks damages for the removal of the plaintiffs from Fono in 1945, and the consequent suffering and loss of property, alleging that that breach of the Trusteeship Agreement obligations made the defendants liable for reparations.  The plaintiffs further allege that the obligations continued during the existence of the Trusteeship, and that the Trusteeship Agreement's obligations were retroactive prior to April 2, 1947 making defendants' actions prior to that date breaches of the agreement.

     Addressing the last point first, article 16 of the Trusteeship Agreement states that the agreement "shall come into force when approved by the Security Council [April 2, 1947] . . . and by the Government of the United States [July 18, 1947]." The plaintiffs offer no authority in support of retroactivity: In light of this article there appears no justification to give the agreement retroactive effect.  The motion to dismiss is therefore granted as to paragraph 17 of the amended complaint.

     In their motions as to the first cause of action the defendants contend that the action is barred by the statute of limitations, and that the Trusteeship Agreement does not give rise to a right to monetary damages in the event of a breach.

     Because of my conclusion that the defendants are correct on the damages issue, I do not decide the limitations issue.  In discussing the damages issue, the allegations in the amended complaint that the actions of the defendants constituted a breach of the defendants' obligations under the Trusteeship Agreement are taken as true.

     In support of their motions the defendants rely particularly on Temengil v. Trust Territory of the Pacific Islands, 881 F.2d 647 (9th Cir. 1989).  In Temengil the plaintiffs had recovered damages

[6 FSM Intrm. 217]

in the district court for the discriminatory employment practices of the Trust Territory, on the basis that the practices violated the Trusteeship Agreement. The Court of Appeals reversed, holding (as to the Trust Territory defendants) that the Agreement did not create private rights of action for monetary damages.  Id. at 653.

     The plaintiffs rely upon People of Saipan v. United States Department of Interior, 502 F.2d 90 (9th Cir. 1974).  In that case the plaintiffs sought to enjoin the implementation of a lease of land upon which a hotel would be built.  On the issue of whether the Trusteeship Agreement, an international agreement, gave individual legal rights, the court said, "The preponderance of features in this Trusteeship Agreement suggests the intention to establish direct, affirmative, and judicially enforceable rights."  Id. at 97; "For all of these reasons, [that the Trusteeship Agreement is self-executing, was the basic constitutional document of Micronesia, and had been codified into the law of the Trust Territory], we believe that the rights asserted by the plaintiffs are judicially enforceable."  Id. at 98.  "[W]e hold that the Trusteeship Agreement is a source of individual legal rights, . . . ."  Id. at 99.

     The first and third passages quoted are broad.  Only the second is limited to "the rights asserted by the plaintiffs."  However, even the other passages are only given meaning in the context of the facts of the case.  The suit before the court sought an injunction.

     In Temengil, where damages were sought the court did not overrule or question the holding in People of Saipan, but treated the issue as distinct because damages were claimed.  The court first held that the Trusteeship Agreement did not give an individual right to monetary damages because the court found no indication that such was intended by the United States when it entered into the treaty.  The court then held that, although the Trusteeship Agreement had been codified, there was no indication that it was intended that the codification give rise to monetary damages.

     The plaintiffs suggest that I am not bound by United States cases, and need not follow Temengil.  The observation is correct.  However, where my obligation is to determine the intent of the parties, I examine the cases in which that intent is at issue.

     In Temengil, there were two groupings of defendants: First, the Trust Territory government, and its High Commissioner, and second, the United States Department of the Interior, the Secretary of the Interior, and the United States. The plaintiffs correctly point out that the case was dismissed as to the United States defendants because the United States had not waived governmental immunity.  However, had the court had to reach the issue of monetary damages, I cannot conceive that a holding as to the United States defendants would have differed from the holding as to the Trust Territory defendants.

     I have no authority before me which indicates that monetary damages are legal remedies available to an individual for breach of the Trusteeship Agreement, either through the treaty or as codified.  That injunctions are available for breach (as in People of Saipan) is consistent with other authorities:

     1.  In Temengil, 881 F.2d at 653, the plaintiffs successfully enjoined the defendants from continuing the discriminatory employment practice.

     2.  In Shultz v. Diggs, 470 F.2d at 461 (D.C. Cir. 1972), the court held that the plaintiffs did have standing to seek declaratory judgment and an injunction against the Secretary of State in order to prevent importation of a metal where the statute which authorized the importation violated

[6 FSM Intrm. 218]

the United States treaty obligations.1

     Other areas of the law in which only injunction relief is available offer parallels to People of Saipan.

     1.  If irreparable harm is threatened and the remedy at law is inadequate, in the United States, with no waiver of immunity, an action may be maintained to enjoin the enforcement of an unconstitutional statute or to enjoin a public official acting unconstitutionally or beyond his statutory powers.  77 Am. Jur. 2d United States 116 (1975).

     2.  "[T]he Eleventh Amendment has not accorded the states absolute sovereign immunity in federal-court actions. . . . [P]rospective injunctive and declaratory relief is available against States in suits in federal court in which state officials are the nominal defendants."  Nevada v. Hall, 440 U.S. 410, 420 n.19, 99 S. Ct. 1182, 1188 n.19, 59 L. Ed. 2d 416, 424 n.19 (1979).

     On the issue of monetary damages, plaintiffs assert that section 174 "expressly authorized monetary damages for exactly the kind of claim raised in this [case]."

     Several general rules of interpretation assist the jurist in analyzing treaties. The ordinary or usual meaning shall be given to words, phrases, and terms in a treaty.  Terms are to be considered in their context and a contrary meaning may be indicated by the context.  5 Green H. Hackworth, Digest of International Law 493, 496, at 222, 246 (1943); Vienna Convention on the Law of Treaties art. 31, 1.

     Preparatory documents and subsequent conduct of the parties can be used to determine the parties' intentions.  5 Hackworth, supra, at 223.  There is no subsequent conduct by the parties in the present case, and no preparatory documents have been discovered by the court, nor were any furnished by the parties, that relate to section 174.

     Section 174(c) states that "any claim . . . shall be adjudicated in the same manner as a claim adjudicated according to Section 174(d)."  Section 174(d) waives the sovereign immunity of the parties in the courts of the other for certain types of claims.  Plaintiffs rely on section 174(c) to maintain their cause of action. They point to no particular language therein as creating the rights they assert. Presumably the language they rely upon to create a right to monetary damages for the plaintiffs is the phrase "any claim."

     The phrase "any claim" is qualified in the same sentence by the verb "shall be adjudicated."  The term "adjudicate" means "[t]o settle in the exercise of judicial authority."  Black's Law Dictionary 39 (5th ed. 1979).

     Thus, following the ordinary or usual meaning of "adjudicate," section 174(c) authorizes an FSM court to settle claims brought before it pursuant to section 174(c) through exercise of its

[6 FSM Intrm. 219]

judicial authority.  Section 174(c) does not grant the court new judicial authority other than to waive the defendants' sovereign immunity.  It does not create new causes of action or fashion a remedy where one was previously not available. For the plaintiffs to prevail it would have to.  It merely allows this court to adjudicate any claims brought before it pursuant to section 174(c) in the same manner as any other suit.

II.  ALLEGED DEPRIVATION OF CIVIL RIGHTS
     The plaintiffs' second cause of action seek damages pursuant to 11 F.S.M.C. 701(3) alleging that their removal from Fono and subsequent suffering deprived them of their civil rights.  The defendants motion in this regard contends that the statute has no retroactive effect, and that the defendants are not "persons" under the statute.  The plaintiffs did not oppose the defendants' motion as to this cause of action, and are deemed to have consented.  FSM Civ. R. 6(d).  I grant the motion on the retroactive issue.  There is thus no need to decide the second ground of the defendants' motion.

     11 F.S.M.C. 701 is a part of the National Criminal Code enacted as Public Law 1-134 on January 7, 1981.  It became effective July 12, 1981.  Pub. L. No. 1-134, 3 (1st Cong., 4th Reg. Sess. 1980).  There is no indication that the law was to have retroactive application. Postponing its effective date is persuasive of the opposite intent ) that it had prospective application.  Section 102 provides as follows:

     1.  Except as provided in subsection (2) of this section, this code does not apply to offenses committed before its effective date.  For purposes of this section, an offense is committed before the effective date if any of the elements of the offense occurred before that date.

     2.  Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if the code were not in force.

     11 F.S.M.C. 102(1) causes me to reach the same conclusion as the provision for the effective date, Pub. L. No. 1-134, 3, namely, that there is no retroactivity for this case.

     11 F.S.M.C. 102(2) has no applicability to the present case because there existed no "prior law" authorizing a civil action for damages for the violation of one's civil rights.

     The section is also directed at Title 11 of the Trust Territory Code which set out crimes under the Trust Territory Government.  In re Otokichy, 1 FSM Intrm. 183, 189 (App. 1982).  This conclusion is supported by the section which covers "[p]rosecutions for offenses."  Section 102(2) does not apply to a civil action.

     For these reasons the defendants' motion to dismiss is granted.

III.  TORT CLAIMS
     The plaintiffs allege that their forced removal from Fono in 1945 and their consequent injuries constituted torts for which damages are sought.  These torts are alleged as follows:

     Third cause of action ) assault and battery;

[6 FSM Intrm. 220]

     Fourth cause of action ) infliction of mental distress;
     Fifth cause of action ) false imprisonment;
     Sixth cause of action ) conversion; and
     Seventh cause of action ) trespass.

     The defendants' motions for dismissal and summary judgment set forth several grounds ) that section 174(c) of the Compact does not apply, that the defendants have not waived their immunity from liability for the actions alleged, and that the actions are barred by the statute of limitations.

     I conclude that the defendants are correct on the last ground, and that it is therefore not necessary to decide the other grounds.

     These causes of action differ from the first cause of action in that, in the Trusteeship Agreement cause of action, the plaintiffs allege that because of the continuing fiduciary obligation to provide reparations, the statute of limitations was tolled until the termination of the Trusteeship Agreement in 1986.  As to causes of action three through seven, no tolling is alleged or argued by the plaintiffs.  The plaintiffs have not opposed the statute of limitations argument of the defendants as to these counts in their points and authorities.

     The plaintiffs bring their action pursuant to section 174(c) of the Compact. That section includes a provision that any judgment rendered, unless satisfied by the United States, is presented to the United States Court of Appeals for the Federal Circuit for certification.  Payment is ordered unless the judgment is manifestly erroneous.
 
     Section 5 of article XV of the Status of Forces Agreement provides that any judgment presented "shall be deemed manifestly erroneous" if the claim would have been barred by the statute of limitations if the claim had been brought in a court of the United States.

     The statute of limitations in the United States for actions against the United States is two years for any tort claim and six years for other civil actions.  28 U.S.C. 2401.  If the United States Claims Court has jurisdiction, the petition must be filed within six years of the accrual of the cause of action.

     The causes of action three through seven had all accrued, at the latest, when the applicable Trust Territory statute took effect in 1951.  Even if the law of the Federated States of Micronesia applied the same limits would prevail; assault and battery and false imprisonment two years, 6 F.S.M.C. 803(1); all other actions six years, 6 F.S.M.C. 805.

     For the reason stated the defendants' motion to dismiss causes of action three through seven for failing to state claims upon which relief can be granted is granted.

     The defendants raised other issues in their motions:

     1.  That the United States is the only proper party defendant, and other defendants should be dismissed;

     2.  That the Micronesian Claims Act of 1971 constituted the exclusive remedy for the plaintiff's injuries, and that decisions made pursuant to the act are res judicata; and

[6 FSM Intrm. 221]

     3.  That punitive damages are not available to the plaintiffs.

     These matters were fully briefed and argued by the parties.  However, because of the decisions reached in other issues, these need not be decided.

*    *    *    *
 
Footnote:
 
1.  The People of Saipan court relied upon the authority of Shultz.  See People of Saipan, 502 F.2d at 102 n.4 (Trask, J., concurring) for the history of the implementation of Article 41 of the United Nations Charter by United States statute.  But cf. Diggs v. Richardson, 555 F.2d 848, 850 (D.C. Cir. 1976) (U.N. resolution does not confer rights on U.S. citizens that are enforceable in court in the absence of implementing legislation).
                                                                                                                                                                                                                                                                                                           
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