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ASG replies to Heuter lawsuit that claims COVID restrictions violate his rights

American Samoa High Court building
“The right to practice religion does not include liberty to expose the community …”

Pago Pago, AMERICAN SAMOA — Current and former senior ASG officials who are defendants in a federal lawsuit, contend that congregate activities such as worship services, where large numbers of people interact, can become “super-spreader” events for the COVID-19 pandemic, according to the defendants legal team in a court filing.

The plaintiff — local resident Steven Jay Pincus Hueter, who is from New York — alleged in his complaint a violation of his civil and constitutional rights guaranteed in the U.S. Constitution based on local COVID-19 restrictions, which prohibited him and others from attending church services from 12-midnight to 5a.m.

However, the defense argued that the Governor’s new declaration, allows church services 24/7.

Defendants named in the complaint are Chief Justice Michael Kruse, the Acting US Secretary of the Interior, Gov. Lemanu Peleti Mauga, Lt. Gov. Talauega Eleasalo Vaalele Ale, Attorney General Fainu’ulelei Falefatu Alailima-Utu, Governor’s chief of staff, Tuimavave Tauapa’i Laupola, ASG COVID-19 Task Force, and the American Samoa Government.

Also named as defendants are former Gov. Lolo Matalasi Moliga and his former chief of staff Fiu J. Saelua along with his former executive assistant and former task force chair Iulogologo Joseph Pereira.

Kruse and the Secretary of Interior are represented by the US Attorney’s Office for the District of Columbia, while the American Samoa defendants, current and former ASG officials, are represented by the Washington D.C. based law firm of Womble Bond Dickingson LLP, whose attorney, Cathy A. Hinger filed a response for the defense on Tuesday.


The defense informed the federal court of the plaintiff’s similar complaint pending in the High Court of American Samoa, and provided a summary, which includes two separate lawsuits specifically against the chief justice.

Two weeks ago, Hueter also sought a Temporary Restraining Order (TRO) and Preliminary Injunction enjoining all defendants from enforcing provisions of the declaration infringing on his rights to attend religious service between 12-midnight and 5a.m.

In its response, the defense asked the court to deny the TRO and that the case should be dismissed. The defense explained that plaintiff “has brought virtually identical claims in the High Court of American Samoa” and those claims remain pending in the High Court, which is the proper forum for plaintiff’s claim to be resolved.

“The High Court of American Samoa is competent to adjudicate claims arising under the laws of the United States and is the only proper forum available to plaintiff,” the defense said and noted that the High Court is “the only proper forum to decide plaintiff’s federal civil rights.”

The defense also argued that it would be inconvenient to litigate this matter in the Federal Court in D.C. given that all of the parties, evidence, and witnesses are located 7,000 miles away in American Samoa, while travel restrictions are in place during the pandemic.

Moreover, requiring the parties to travel to the District of Columbia to litigate this matter is not realistic or in the best interests of the public health or efforts to prevent the spread of COVID-19, especially to America Samoa which has had zero positive cases within its population.

According to the defense, the High Court has already heard and dismissed Plaintiff’s application for a temporary restraining order twice and the defendants have filed motions to dismiss.

“Disgruntled with the High Court’s rulings against him and the stay of the High Court case pending the resolution of his separate lawsuit against the Chief Justice, plaintiff filed this [federal] lawsuit seeking the same injunctive relief that the High Court has denied two times in the hopes he can obtain a different result,” the defense said.

“Moreover, this Court should consider the strong interests American Samoa has in adjudicating this matter, because the resolution will directly impact regulations adopted by the territory to combat COVID-19 within its own borders.”

As to the plaintiff’s claims for Injunctive Relief regarding religious service, the defense said the Feb. 20th declaration, which allows religious service for 24/7, renders this issue as moot. The defense dismissed the plaintiff’s claims that defendants’ “regulations treat houses of worship much more harshly than comparable secular facilities.”

The defense said that plaintiff “can currently attend religious services at any time, 24 hours a day and 7 days a week, without the need for the Court’s involvement and accordingly, his claims concerning his religious freedom are moot.”


The defense also argued that Hueter’s claims that the Jan. 30, 2021 declaration violated his First Amendment Free Exercise rights “is without merit”.

“Over a century of controlling precedent holds that plaintiff’s First Amendment claims must yield to the Governor’s paramount responsibility to protect the residents of American Samoa against the COVID-19 global pandemic,” the defense points out.

Citing previous federals ruling, the defense said the US Supreme Court has long recognized that a “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

“Most significantly, the Supreme Court recently upheld the denial of a request to enjoin California’s guidelines imposing capacity limitations on places of worship, with Chief Justice Roberts confirming in a concurring opinion that... government officials must have broad authority and wide latitude to safeguard the “safety and health of the people” from COVID-19,”

the defense argued, citing the  South Bay United Pentecostal Church v. Newsom case.

The defense also recalled provisions of Lemanu’s Jan. 30th declaration, such as “Public gatherings, including religious worship, are allowed from 5am to 12 midnight” which are also operating hours for businesses except for StarKist.

“Given the general applicability of these rules, it is clear that Plaintiff’s reliance on ‘Roman Catholic Diocese of Brooklyn’ is misplaced,” the defense said, referring to a Supreme Court case brought by the Catholic Dioceses of Brooklyn, New York against that state’s governor. The Supreme Court issued a decision on order on this case last November and was cited as “materially relevant” in Hueter’s complaint.

Unlike the New York action before the Supreme Court. the defense argued that Lemanu’s January declaration is “neutral and of general applicability”.

The governor’s declaration subjects “all businesses,” “all public transportation” and public gatherings generally to the same time restrictions, allowing each to function from 5am to midnight. The only exception is for Starkist and its business affiliates.

“These neutral, generally applicable rules easily satisfy rational basis review,” according to the defense, which argued that the implemented measures “are rationally related to slowing the spread of COVID-19”.

The defense further argued that there is no merit in the plaintiffs’ First Amendment freedom of assembly claims.  The Supreme Court has stated that social associations — like the ones Plaintiffs complain about — “civil rights and statutory rights to conduct legal performances, music events, and parties after 9 PM or after 12 AM midnight, and before 5 AM” — do not come within the ambit of First Amendment protection,” the defense said, citing previous federal decisions.


The court was informed that ASG has an important interest in preventing any communal spread of COVID-19.

“The restrictions on indoor gatherings further the Government of American Samoa’s compelling interest in seeking to prevent the community spread of COVID-19 within the territory,” the defense said and noted that the Supreme Court has observed “[s]temming the spread of COVID-19 is unquestionably a compelling interest.”

“Given its remote and unique geography, American Samoa has a compelling, and perhaps unparalleled, interest in mitigating the potential for widespread infection,” the defense said, and gave a lengthy summary of American Samoa, location, per capita income, and health care system — with only one 128-bed hospital which could care for only approximately ten COVID-19 patients.

“Given the dire impact that the spread of COVID-19 could have on the strained American Samoa healthcare system and financial resources, the American Samoa Government, and its elected representatives, have made it the highest priority to prevent a widespread outbreak within the territory,” the defense points out.


While defendants agree that plaintiff has a constitutionally protected interest in participating in worship services and that they suffer some injury when prevented from attending indoor services in person at their chosen place of worship, “the right to practice religion does not include liberty to expose the community... to communicable disease,” according to the defense citing a 1944 federal case.

“A court sitting in Washington, D.C. should not override the decisions of the elected officials living on the islands of American Samoa and familiar with local conditions by enjoining restrictions combatting the spread of COVID-19,” the defense argued.

“Congregate activities such as worship services where large numbers of people who interact only weekly gather in the same place for an extended period of time to engage in a shared communal experience including singing and chanting, create an especially great transmission risk,” they said. “Indeed, worship services can become “super-spreader” events, a risk that American Samoa simply cannot afford to take given its geography and limited healthcare capacity.”

The defense also says that it appears that plaintiff seeks sweeping relief that would permit him to undertake any activities that are said to be an expression of religious freedom without regard to any COVID-19 restrictions.

However, such relief would vastly increase the risk of religious services unwittingly becoming “super-spreader” events, according to the defense, noting that the island has faced multiple risks of COVID-19 being introduced on the island from cargo ships and others who deliver emergency supplies.

“Because any communicable spread could overwhelm the Territory’s public health system, the public interest and balance of equities weighs heavily against the relief sought and amply justifies denial,” the defense added.

Samoa News will report later this week on the Chief Justice and Secretary of Interior’s response to the complaint.