San Agustin v. Mansapit-Shimizu, (2020)

2020 Guam 25

FRANK SAN AGUSTIN, Petitioner-Appellant, v. DAFNE MANSAPIT-SHIMIZU in her official capacityas the Director of the Department of Revenue and Taxation, Respondent-Appellee.

Supreme Court Case No. CVA19-015

SUPREME COURT OF GUAM

Submitted: December 10, 2019

December 28, 2020

Superior Court Case No. SP0061-19

OPINION

Appeal from the Superior Court of Guam

Submitted on the briefs December 10, 2019

Hagåtña, Guam

Appearing for Petitioner-Appellant:

Braddock J. Huesman, Esq.

Deborah E. Fisher, Esq.

Fisher Huesman P.C.

Core Pacific Bldg.

545 Chalan San Antonio, Ste. 302

Tamuning, GU 96913

Appearing for Respondent-Appellee:

James L. Canto II, Esq.

Deputy Attorney General

Office of the Attorney General of Guam

590 S. Marine Corps Dr., Ste. 901

Tamuning, GU 96913 BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; and KATHERINE A. MARAMAN, Associate Justice.

CARBULLIDO, C.J.:

[1] Petitioner-Appellant Frank San Agustin filed a whistleblower complaint with the Guam Department of Revenue and Taxation ("DRT"), which DRT denied. San Agustin petitioned the Superior Court to review that denial. The court dismissed his petition on sovereign immunity grounds and found the waiver of sovereign immunity contained in Guam's False Claims and Whistleblower Act ("Whistleblower Act") was inorganic. We disagree and vacate the Superior Court's findings, remanding for further proceedings not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] In 2016, San Agustin filed a Form 211 Whistleblower Complaint with DRT, alleging a Guam taxpayer was avoiding owed taxes. DRT eventually informed San Agustin it closed the case without having assessed additional taxes or penalties on that taxpayer. San Agustin appealed DRT's denial of his whistleblower complaint to the Superior Court. DRT moved to dismiss.

[3] The court granted DRT's motion, finding that: (1) appeals based on the Whistleblower Act, like San Agustin's, require Guam's waiver of sovereign immunity; (2) the Guam Legislature waived sovereign immunity for those appeals through 5 GCA § 37103(a)(4); but (3) that waiver was inorganic because "[t]he Organic Act contains clear limiting language which bars the Guam Legislature from waiving sovereign immunity for any claims outside of tort or contract," Record on Appeal ("RA"), tab 10 at 5 (Dec. & Order, Aug. 12, 2019).

[4] San Agustin timely appealed the trial court's decision. Before us, he argues Guam exercises inherent sovereign immunity based on its status as a sovereign, which the Organic Act recognized alongside Guam's power to waive such immunity for claims that sound in tort or contract. Appellant's Br. at 12-13 (Dec. 10, 2019). San Agustin suggests upholding the Superior Court's findings would invite us to find other statutes like the Administrative Adjudication Law ("AAL") inorganic, since like the Whistleblower Act, that law allows judicial review of agency decisions without limitation to tort or contract claims. Id. at 27.

[5] The Office of the Attorney General of Guam ("OAG"), which represents DRT, did not submit an opposition brief within 30 days after San Agustin's opening brief, as Rule 17(a) of the Guam Rules of Appellate Procedure ("GRAP") requires. Instead, the OAG filed a GRAP 13(i) letter discussing cases the OAG claims provide "controlling law" that the government of Guam may inherently waive sovereign immunity. OAG's GRAP 13(i) Letter at 1 (Jan. 8, 2020) (citing Marx v. Gov't of Guam, 866 F.2d 294, 298, 301 (9th Cir. 1989); Kawananakoa v. Polyblank, 205 U.S. 349, 353-54 (1907); People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270, 274-75 (1913)).

[6] San Agustin responded with a letter to this court, where he urges that, despite the OAG's statements, his appeal is not moot since the trial court's decision continues to deprive San Agustin of his rights to an administrative appeal and award from the whistleblower claim. San Agustin's GRAP 13(i) Letter at 1 (citing Guam Election Comm'n v. Responsible Choices for All Adults Coal., 2007 Guam 20 ¶ 31). San Agustin also notes neither party has sought to dismiss his appeal. Id. at 2.

II. JURISDICTION

[7] This court has jurisdiction over appeals from final judgments and orders of the Superior Court of Guam under 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-223 (2020)); 7 GCA §§ 3107(b), 3108(a), and 25102(a) (2005); and 5 GCA §§ 37103(b)(4), 9240, and 9241 (2005).

[8] "Sovereign immunity implicates a court's subject matter jurisdiction." Sumitomo Constr., Co. v. Gov't of Guam, 2001 Guam 23 ¶ 22 (citing Wood v. Guam Power Auth., 2000 Guam 18 ¶ 10). "If sovereign immunity applies, the court lacks subject matter jurisdiction, and the action is barred." Bautista v. San Agustin, 2015 Guam 23 ¶ 16 (citing Pac. Rock Corp. v. Perez, 2005 Guam 15 ¶ 24). We assess whether sovereign immunity applies to San Agustin's claim independent of the OAG's reliance on the defense. See Sumitomo Constr., 2001 Guam 23 ¶ 22 ("[T]he defense of sovereign immunity can be raised at any time, either by a party or by the court. The failure of the government to raise the issue does not constitute a waiver." (citations omitted)).

III. STANDARD OF REVIEW

[9] The Superior Court dismissed San Agustin's appeal for failure to state a claim, under Rule 12(b)(6) of the Guam Rules of Civil Procedure. We review dismissals under Rule 12(b)(6) de novo. See Ukau v. Wang, 2016 Guam 26 ¶ 19. We also review de novo jurisdictional issues and questions involving the government of Guam's waiver of sovereign immunity. Town House Dep't Stores, Inc. v. Dep't of Educ., 2012 Guam 25 ¶ 11.

IV. ANALYSIS

A. San Agustin's Claim Invokes Guam's Sovereign Immunity

[10] As a threshold issue, the trial court was correct that San Agustin's suit invokes Guam's sovereign immunity. San Agustin filed his appeal against Dafne Mansapit-Shimizu in her official capacity as DRT's then-acting director, and he sought relief that, if granted, would have been paid with government of Guam funds.

[11] "A suit against an officer constitutes a suit against the sovereign if 'the judgment sought would expend itself on the public treasury or domain . . . .'" Guam Fed'n of Teachers ex rel. Rector v. Perez, 2005 Guam 25 ¶ 19 (quoting Smith v. Grimm, 534 F.2d 1346, 1351 n.6 (9th Cir. 1976)); see also Guam Soc'y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1371 (9th Cir. 1992) ("[A] judgment against a state official in his or her official capacity runs against the state and its treasury." (citation omitted)). And in determining when sovereign immunity applies to a suit against the government of Guam, we look at the practical effect of a judgment, not its formal appellation—analyzing whether the judgment would be indistinguishable to an award of damages against the state. See Edelman v. Jordan, 415 U.S. 651, 668 (1974) (recognizing sovereign immunity nonetheless applied to what lower court termed as equitable restitution, where award would "to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. . . . It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.").

[12] San Agustin's appeal asked the Superior Court to "redetermin[e]" DRT's denial of his whistleblower complaint. RA, tab 1 at 6 (Appeal from Denial Pet'r's Whistleblower Award, Mar. 27, 2019). A favorable redetermination from that court would have resulted in DRT's payment of the whistleblower award to San Agustin, paid not by Mansapit-Shimizu but from the government of Guam's funds. The trial court was correct in finding San Agustin's claim invokes sovereign immunity.

B. The Whistleblower Act's Waiver of Sovereign Immunity is Proper Under the Organic Act

[13] The trial court held the Whistleblower Act's waiver of sovereign immunity was inorganic because the Organic Act allows Guam's waiver of immunity only in cases of tort or breach of contract, but not administrative appeals. We disagree and find the Whistleblower Act's waiver is proper under the Organic Act.

1. The government of Guam possesses inherent sovereign immunity

[14] The Superior Court's holding behooves us to discern the source of Guam's sovereign immunity and the corresponding power to waive that immunity. States exercise sovereign immunity in their courts, which they have retained from before the Constitution. Alden v. Maine, 527 U.S. 706, 713 (1999) ("[A]s the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . ."). The Eleventh Amendment embodies or exemplifies—but does not define the scope of—that broader concept of immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996) (recognizing "the background principle of state sovereign immunity embodied in the Eleventh Amendment"); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997) (recognizing "the broader concept of immunity, implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and exemplifying"); Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 753 (2002) ("[T]he Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity."). The Framers were well-aware of those principles: "[That] fundamental aspect of the States' 'inviolable sovereignty' was well established and widely accepted at the founding." Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1493 (2019).

[15] None of the parties before us propose the government of Guam exercises that same "broader concept of immunity," Coeur d'Alene Tribe of Idaho, 521 U.S. at 267-68, which States exercise. But the U.S. Supreme Court has said territories like Guam...