Pago Pago, AMERICAN SAMOA — A federal judge in Honolulu has “stricken” from public court records several “Notices” filed by the four Alega residents who brought a federal lawsuit against the U.S Secretary of Interior, American Samoa Chief Justice Michael Kruse and local resident James McGuire.

In a brief, text-only order, issued Tuesday this week, Chief US District Court Judge, J. Michael Seabright, “cautioned” plaintiffs, that their “continual filing of frivolous ‘Notices’ only causes unnecessary delay, thereby impeding the court from ruling on the merits of their substantive claims.

He warned plaintiffs that: “Continued filing of frivolous documents may result in sanctions.”

The judge’s order comes after plaintiffs on July 16th, filed several "Notices” and some of these Notices purport to alert the court that defendants have not responded to plaintiffs' Motion for Temporary Restraining Order (TRO). Others purport to alert the court to "material error[s] on the [court] docket.”

Seabright points out that plaintiffs have not been granted leave to file such "Notices” and therefore the notices “are stricken as frivolous.” Should any of the information contained in the "Notices" be relevant to the defendants’ pending Motion to Dismiss Complaint, the judge said plaintiffs may raise these matters in opposition to that Motion.

In their $2.2 million lawsuit filed two months ago, the plaintiffs - Steven Jay Pincus Hueter, Rosalia Tisa Faamuli, Michael S. Kirk, and Faamuli Pete Faamuli - alleged Kruse and McGuire, violated laws regarding an “ex-parte communication” between a judge during a High Court hearing and a private citizen and for interference with cleanup of pollution at the Alega Marine Protected Area.

Plaintiffs claimed that Kruse held “an illegal ex-parte conversation” at the bench with McGuire — in violation of the American Bar Association Judicial Code of Conduct — during a Mar. 31, 2021 hearing in the High Court on the AST Telecom case. The Secretary of Interior — who was later added as a defendant — and Kruse are both being sued in their official capacity and as individuals, and referred to in the case as “federal defendants.”

Last week Friday, the federal defendants — through US Justice Department attorneys — filed a motion to dismiss the complaint and opposed plaintiffs’ motion for a temporary restraining order against Kruse and the Secretary of Interior.

Regarding the alleged “ex-parte communication” between Kruse and McGuire, plaintiffs submitted one page of the transcript from the hearing as supporting evidence.

However, the defense team argued that the transcript does not support any inference of an improper ex parte communication. Additionally, the transcript merely shows that, at the very start of the hearing, Kruse asked McGuire to come up to the bench.

Furthermore, there is no indication that the communication between Kruse and McGuire is related to the High Court case at all or was otherwise improper.

The defense noted that McGuire submitted a declaration to the Honolulu federal court, explaining that the communication was related to payment of American Samoa Bar Association dues.

As previously reported by Samoa News, McGuire said in the declaration that the alleged communication “never” happened and explained that he was in the Chief Justice’s courtroom, on Mar. 31st to observe a scheduled hearing relating to a land controversy in the village of Alega.

Before the court-calendar started, the “Chief Justice called me to the bench and advised me to remind my eldest daughter Marian McGuire to submit her 2021 American Samoa Bar dues,” McGuire explained. “I acknowledged his instructions and sat down.”

Plaintiffs also alleged that Kruse violated the American Bar Association (ABA) Judicial Code by engaging in “ex parte” communication with McGuire.

The defense argued that the ABA Judicial Code is not legally binding upon Kruse, an Article IV judge. Further, the ABA Judicial Code does not give rise to a private cause of action.

Therefore this claim against Kruse must be dismissed, the defense said.

THE AMENDED COMPLAINT

The defense points out that plaintiffs’ claims in federal court arise from, and/or relate to matters pending in the High Court before Kruse. And the matters concern land rights to, and clean-up of, an area known as Alega or the private Alega Marine Protected Area.

The defense recalled that the plaintiffs alleged in their federal lawsuit, that on Nov.12, 2020, Kruse ordered AST Telecom to clean certain detritus on Alega.

Then, at a hearing on Mar. 31st, the Chief Justice called McGuire to the bench and engaged in an “illegal ex parte communication” in violation of the ABA Judicial Code of Conduct. Next, Kruse “change[d] his position” and ordered that there would be “no clean up of pollution.”

“It is unclear what order Plaintiffs are referring to,” said federal attorneys, who noted that plaintiffs brought the suit against Kruse and the Secretary of Interior to seek an injunction stopping the Chief Justice from interfering with the clean up of Alega.

Plaintiffs further allege that the Faamuli plaintiffs’, Rosalia Tisa Faamuli and Faamuli Pete Faamuli, have certain land rights to Alega — the issue that is currently pending before the Office of Samoan Affairs in the territory and the basis for the stay of two cases before the High Court.

Plaintiffs seek a federal court declaration granting the Faamuli plaintiffs’ land rights. “It is unclear how the Secretary [of Interior] or Justice Kruse are implicated by such claims or in such relief,” the defense points out.

Plaintiffs also sought a federal court injunction preventing Kruse and McGuire from “interfering with the cleanup of pollution” in Alega.

The defense argued that plaintiffs’ claims against the federal Defendants must be dismissed because plaintiffs lack Article III standing to sue.

They further argued that dismissal is also proper because this Court lacks personal jurisdiction over Kruse, who lives in American Samoa and all of his work is conducted in American Samoa.

“To exercise specific jurisdiction over Justice Kruse, among other requirements, the claims must arise out of Hawaii-related activities,” the defense argued. 

They said the proceeding before the territorial court implicates important state interests in that the determination of land rights in Alega is of special interest to the American Samoan court system, which has specific procedures to address American Samoa’s unique system of land rights.

“To the extent Plaintiffs raise a constitutional claim (although such a constitutional claim does not appear to be the focus of their allegations), they may raise the claim in the American Samoan proceeding,” the defense said.

Furthermore, the rulings sought by plaintiffs “would usurp power from American Samoan court system.”

“Plaintiffs should not be permitted to forum shop and collaterally attack an interlocutory decision of the territorial court, especially where the territorial court provides an appropriate venue to decide Plaintiffs’ arguments,” attorneys for the federal defendants argued.

They further argued that the Honolulu federal court lacks jurisdiction over the claims against the Secretary of Interior. The defense said that the U.S Circuit Court in Washington D.C. has held that it had jurisdiction over a claim against the Secretary for the purpose of judging the Secretary’s administration of the government of American Samoa by constitutional standards and could order the Secretary to take action to correct constitutional deficiencies.

CONCLUSION

According to the defense, plaintiffs’ motion for TRO should be denied and the Amended Complaint dismissed. Additionally, plaintiffs’ claims suffer from multiple jurisdictional deficiencies, in addition to a failure to state claim.

Further, even if jurisdiction was proper – which it is not – abstention is proper, as this action is a collateral attack on issues pending before the High Court.

On Tuesday this week, the court gave plaintiffs’ until early next month to file an “optional reply” to the federal defendants' opposition to the TRO and motion to dismiss the complaint.