* * * *
[12 FSM Intrm. 115]
[12 FSM Intrm. 116]
* * * *
MARTIN YINUG, Associate Justice:
On July 21, 2003, AHPW filed two separate motions for partial summary judgment, one against the FSM, and the other against Pohnpei. On July 23, 2003, the FSM filed its motion for summary judgment. Also on July 23, 2003, Pohnpei filed its motion to dismiss, with summary judgment sought
[12 FSM Intrm. 117]
in the alternative.
1. The FSM’s motion for summary judgment on AHPW’s constitutional claims (issues one and four of the FSM’s motion) is granted. The FSM’s motion is also granted on AHPW’s anticompetitive practices claim regarding the pepper business under Chapter 3 of Title 32 of the FSM Code (issue 3 of the FSM’s motion). Accordingly, count one of both causes of action of the complaint against the FSM is dismissed. Count three of the first cause of action against the FSM is dismissed.
2. AHPW’s motion for partial summary judgment against Pohnpei on its claims under Chapter 3 of Title 32 of the FSM Code is denied. Questions of fact exist. A ruling on AHPW’s motion for partial summary judgment against both the FSM and Pohnpei on its claims under Chapter 2 of Title 32 of the FSM Code is held in abeyance until the court receives further briefing as specified herein. Further briefing should be submitted on or before October 6, 2003. If AHPW elects not to submit further briefing, then it should notify the court as soon as practicable that it will not be doing so.
3. Pohnpei’s motion is denied.
4. The court will rule on any undisposed portions of the FSM’s and AHPW’s motions in an expedited manner upon receipt of further briefing from AHPW, or upon notification by AHPW that it elects not to submit further briefing.
5. The issues for trial in this case have been sufficiently explored by the motions for summary judgment, and will be further addressed by the court’s ruling after receipt of any further briefing. Thus, the pretrial statements need only set out the parties’ witnesses, a short summary of their anticipated testimony, and a listing of exhibits. The due date for the pretrial statements is extended until October 15, 2003.
The complaint alleges two causes of action, each containing three counts. The first cause of action has to do with AHPW’s pepper processing operation, while the second deals with AHPW’s trochus shell button business. Count one of AHPW’s first cause of action alleges equal protection and due process violations by Pohnpei and the FSM under both the Pohnpei and FSM constitutions resulting in the loss of the pepper business; count one of the second cause of action makes those same allegations regarding the trochus business. Count two of the first cause of action alleges an expropriation of AHPW’s pepper business by both Pohnpei and the FSM in violation of chapter 2 of Title 32 of the FSM Code; count two of the second cause of action makes those same allegations regarding the trochus business. Count three of AHPW’s first cause of action alleges anticompetitive acts by Pohnpei and the FSM in violation of Chapter 3 of Title 32 of the FSM Code involving its pepper business; count three of the second cause alleges that Pohnpei only engaged in anticompetitive conduct regarding AHPW’s trochus shell button business.
As to the pepper business, the essential allegations of the complaint are that Pohnpei put AHPW’s pepper operation out of business by offering a higher price to Pohnpei’s pepper farmers, one with which AHPW could not compete. The essential allegations regarding the trochus business are that by not declaring a trochus harvest after it had promised to do so Pohnpei also put AHPW’s trochus shell button operation out of business.
Summary judgment is appropriate if the record before the court demonstrates that there is no genuine issue as to any material fact such that the moving party is entitled to summary judgment as a matter of law. FSM Civ. R. 56.
[12 FSM Intrm. 118]
a. The FSM’s motion for summary judgment
The FSM has moved for summary judgment on six different grounds. At this juncture, the court disposes of the grounds raised under its issues one and four (the constitutional claims), and issue three (whether a genuine issue of fact exists regarding AHPW’s contentions that the FSM engaged in anticompetitive conduct in violation of the provisions of Chapter 3 of Title 32 of the FSM Code).
1. The constitutional claims
The fundamental concept of due process is that government may not take from a citizen his life, liberty, or property in an unfair or arbitrary fashion, but must follow procedures that ensure a fair and rational decision-making process. Suldan v. FSM (II), 1 FSM Intrm. 339, 354-55 (Pon. 1983). Article IV, Section 4 of the FSM Constitution guarantees that similarly situated individuals are not treated differently due to invidious discrimination. Davis v. Kutta, 7 FSM Intrm. 536, 547 (Chk. 1996). AHPW argues that the FSM deprived it of due process and denied it equal protection of the laws in both its pepper and trochus shell button businesses.
As to the pepper business, AHPW claims that the FSM made an allotment of $40,000 to the Pohnpei Pepper Association ("PPA"), and that the allotment was used for the purpose of buying pepper from Pohnpei pepper farmers at an arbitrarily high price with which AHPW could not compete. In response, the FSM contends that although it gave $40,000 to the PPA, the PPA never operated the Pohnpei Pepper Plant ("PPP"), a project operated by Pohnpei. It is the operation of this plant that is alleged to have been in competition with AHPW’s pepper operation. The FSM further states the allotment was made before the PPP changed its policy in 1995 from purchasing only excess pepper to purchasing all pepper produced by Pohnpei pepper farmers.
The court concludes that as a matter of law the appropriation of $40,000 to the PPA did not violate any constitutional right asserted by AHPW. AHPW argues that the FSM contributed the $40,000 for the purchase of pepper, but does not cite to any portion of the record to substantiate this argument. On the other hand, the FSM has submitted as part of the record a copy of the May 3, 1995, PPA allotment that shows $37,550.00 allotted to "fixed assets" and $2,450.00 allotted to "consumable goods," for a total of $40,000.00. This was subsequently reprogrammed on November 7, 1995, to provide for $34,050.00 in fixed assets, and $5,950 in consumable goods, for the same $40,000.00. The project control document attached to the allotment states that "[t]his funding is needed to purchase equipment and materials/supplies for field, processing plant and office work." Under "OBJECTIVE" is the following: "Aim to produce, process and market pepper at the acceptable standard."
Viewing these facts in the light most favorable to AHPW, the allotment was not for a subsidy or other payment to pepper farmers that arguably reduced or otherwise affected AHPW’s competitive advantage in a way that violated AHPW’s constitutional rights. Nor does the court construe this allotment as some form of financing of Pohnpei’s allegedly unlawful activities. It was the state of Pohnpei, and not the PPA, that bought pepper from Pohnpei farmers at a higher price than that paid by AHPW. The most that can be said is that the allotment assisted a pepper grower’s association, mostly in the form of fixed assets. Thus any connection between the allotment by the FSM and the destruction of AHPW’s pepper business is too remote: there is no showing that the allotment caused, or even contributed to the cause of, the destruction of AHPW’s pepper operation.
As to the trochus allegations, the FSM asserts that it had no involvement in or authority over Pohnpei’s decisions not to declare a trochus harvest. The uncontested facts on the record support this contention. The decision not to hold a trochus harvest was Pohnpei’s, not the FSM’s. There is no
[12 FSM Intrm .119]
genuine issue of fact on this point. AHPW also appears to argue that because it had a loan from the FSM Development Bank to fund its trochus operation, and because it informed the Bank that it was experiencing trouble with its trochus business, this in some manner implicates a constitutional right violation. The fact of the loan does not arise to a constitutional rights violation, nor does it create a fact issue.
AHPW appears to urge that because 32 F.S.M.C. 216(4) confers vicarious liability upon the FSM for certain alleged actions of Pohnpei, Pohnpei is liable to AHPW on its constitutional claims. However, the statutory cause of action is distinct from AHPW’s constitutional claims, and does not serve in any manner to create a question of fact as to the constitutional claims. As a last point, AHPW urges that the FSM knew of Pohnpei’s conduct regarding both its businesses. However, this knowledge alone does not create liability on the FSM’s part on AHPW’s constitutional claims.
Thus summary judgment in the FSM’s favor is appropriate with respect to the constitutional violations alleged in count one of both of AHPW’s causes of action. Those counts are dismissed as to the FSM.
2. The anticompetitive practices claim against the FSM as to the pepper business
The FSM urges that it did not engage in anticompetitive practices under Chapter 3 of Title 32, because all it did was make an allotment to the PPA. For the reasons discussed under the previous point, the court agrees. Even if the allotment to the PPA is somehow construed to indicate Pohnpei’s intent to compete with AHPW, it is not competition, but anticompetitive practices that Chapter 3 of Title 2 proscribes. More significantly, AHPW points to nothing in the record to suggest that at the time of the allotment to the PPA in 1995, the FSM had any knowledge that Pohnpei intended to engage in unfair competitive practices. The allotment of the $40,000 to the PPA did not constitute, as a matter of law, an anticompetitive practice. Accordingly, count three of AHPW’s first cause of action is dismissed as to the FSM.
b. AHPW’s motion for partial summary judgment on liability
AHPW has moved for partial summary judgment against Pohnpei on its pepper and trochus claims under both Chapter 2 and Chapter 3 of Title 32 of the FSM Code, while it has moved for partial summary judgment on the trochus and pepper claims against the FSM under Chapter 2 only. Both motions are directed to liability. The discussion of the Chapter 3 claims against Pohnpei references a Pohnpei statute, S.L. No. 4L-159-78, but AHPW has not alleged in the complaint that the statute confers a specific cause of action. Rather, the Pohnpei statute appears to provide context for the Chapter 3 claims against Pohnpei. The court proceeds on this basis.
1. The expropriation claims against both the FSM and Pohnpei under Chapter 2 of Title 32 of the FSM Code
AHPW’s claims against the FSM and Pohnpei under Chapter 2 of Title 32 has two parts, the claims under § 216 and the claim under § 219. The court will hold in abeyance its ruling on both aspects of the Chapter 2 claims, because viewing all of the facts and inferences in a light most favorable to AHPW, the question arises whether as a matter of law AHPW has stated a cause of action against the FSM or Pohnpei. This premise leads to the second question whether summary judgment should be granted in favor of both defendants on AHPW’s expropriation claims under Chapter 2. However, in such a case, the court may grant the nonmoving party summary judgment in the absence of a cross motion for summary judgment if the original movant has had an adequate opportunity to show that in fact there is a genuine issue, and that the nonmoving party is not entitled to summary
[12 FSM Intrm. 120]
judgment. Truk Continental Hotel, Inc. v. Chuuk, 6 FSM Intrm. 310, 311 (Chk. 1994). To insure AHPW’s opportunity in this regard, AHPW will have until October 6 to submit additional briefing on the court’s concerns as set out below.
(a) The § 216 claims
Section 216(1) of Title 32 provides in pertinent part that "[t]he National Government guarantees that there shall be no compulsory acquisition or expropriation of the property of any foreign investment as to which a Foreign Investment Certificate has been issued." At all relevant times AHPW held a foreign investment permit for both its pepper and trochus businesses. Further, § 216(4) provides that
[t]he National Government shall not take action, or permit action to be taken by any State or other entity within the FSM, that although not formally designated or acknowledged as compulsory acquisition or expropriation, indirectly has the same injurious effect ("creeping expropriation"). If such action nevertheless takes place, the National Government shall be responsible for the prompt and adequate compensation of any injured noncitizen.
Thus this statute creates a cause of action by the aggrieved alien against the FSM for compensation for conduct by a state in violation of § 216(1) and (4). AHPW contends that "creeping expropriation" of the sort proscribed by § 216(4) has occurred here, and also contends that both the FSM and Pohnpei are liable under the statute. At this juncture the court will not decide whether the statute creates liability against Pohnpei as opposed to the FSM for the proscribed conduct because of its concerns that none of the conduct alleged is actionable under § 216 regardless of who engaged in it. Those concerns are as follows.
AHPW alleges that Pohnpei, through its actions in buying pepper from Pohnpei farmers at an artificially high, subsidized price so that AHPW was priced out of the market, and in repeatedly refusing to declare a trochus harvest gradually whittled away at its businesses so that they were no longer viable and AHPW was forced to shut them down. This process of attrition, AHPW contends, is what constitutes the creeping expropriation, a concept dealt with by § 192 of the Restatement (Second) Foreign Relations Law of the United States (1965) as follows:
§ 192. Meaning of Taking
Conduct attributable to a state that is intended to, and does, effectively deprive an alien of substantially all of the benefit of his interest in property, constitutes a taking of the property, within the meaning of § 185,1 even though the state does not deprive him of
[12 FSM Intrm. 121]
his entire legal interest in the property.
Commenting on §192, one writer has noted that
[i]f a government harasses a foreign entrepreneur in such a way as to make the enterprise unprofitable, one of two outcomes may follow: (a) the entrepreneur may abandon the property or (b) the entrepreneur may sell the property to the government at a price which reflects only the diminished potential of the firm. The first is usually classified as a "creeping expropriation" and the second becomes [a case of] coercion."
Detlev F. Vagts, Coercion and Foreign Investment Rearrangements, Am. J. Int’l L. 17, 25 (1978) (emphasis added). The instances or cases cited or discussed in this article involving the expropriation of property have to do with the taking of some tangible, real, or otherwise transferrable property, and include the following: a copper mine, communications facilities, a hotel, a house, a quarry, and a social club. Of the reported court cases cited, the court has access to the following, which involve the type of property indicated: Bernstein v. van Heyghen Freres S.A., 163 F.2d 246 (2d Cir. 1947), cert. denied, 332 U.S. 772 (1948) (forced transfer of shares in Arnold Bernstein Line, a shipping company); Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvart Maatschappij, 173 F.2d 71 (2d Cir. 1949) (forced transfer of shares in Red Star Line, also a shipping company); 210 F.2d 375 (2d Cir. 1954); Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2d Cir. 1956), aff’g 133 F. Supp. 929 (S.D.N.Y. 1947) (confiscation of liqueur manufacturing plant).
AHPW contends that Pohnpei engaged in a pattern of conduct that resulted in both of AHPW’s business operations going out of business. To this extent, AHPW alleges, it suffered damage to its ongoing business concerns. But this is different from saying that those ongoing business concerns, or any part of them, are now in the possession of or claimed by Pohnpei or its designee. As comment b. to § 192 provides, "[c]onduct attributable to a state may deprive an alien’s property of value without constituting a taking." Section 192 of the Restatement (Second) not only contemplates that a state will "effectively deprive an alien of substantially all the benefit of his interest in property," but that this deprivation of benefit will also arise to the level of expropriation. Section 192, after all, defines a "taking." Here, there is no question that AHPW suffered a derivation of property value as discussed in comment b. to § 192. However, that loss to AHPW resulted from the alleged actions of Pohnpei that prevented competition and production, actions for which AHPW has a remedy under Chapter 3 of Title 32, and not from Pohnpei’s expropriation of AHPW’s property. It therefore appears to the court that AHPW’s loss is a different species from that contemplated by § 192 of the Restatement.
This is borne out by the examples cited in the Detlev article. In each instance, the state took possession of property formerly owned by and in the possession of the dispossessed party. This is not the case here. On the record before the court, AHPW has not been forced to sell the buildings in which it was operating its pepper or trochus businesses to Pohnpei at an unfair price. It has not been forced to sell its equipment to Pohnpei as a result of Pohnpei’s conduct. While it may have abandoned its efforts to maintain the viability of its businesses, it was not forced to abandon any property that then passed under the effective dominion or control of Pohnpei. Under all the facts and allegations of this case, AHPW cannot point to any property formerly owned by it and in its possession that was taken by Pohnpei or its designee, or that otherwise came under the dominion and control of Pohnpei.
AHPW has cited to comment e. to § 711 of the Restatement (Third) which provides that "[a] state is also responsible if it fails to provide an alien remedies for injury to person or property, whether inflicted by the state or by private persons in circumstances in which a remedy would be provided by the major legal systems of the world." The court does not have access to this resource, but the point, based on the record now before it, would appear to be well taken. The allegations and facts of this
[12 FSM Intrm. 122]
case, both disputed and undisputed, fit with some precision the type of conduct proscribed under Chapter 3 of Title 32 of the FSM Code. Thus, it is not clear to the court why the attempt should be made to fit the allegations of the complaint within the parameters of Chapter 2 when a remedy lies under Chapter 3.
AHPW should respond to these concerns in its supplemental briefing if it elects to submit any.
(b) The § 219 claimsSection 219 of Chapter 2 raises a different concern. It provides in its entirety as follows:
Subject to the provisions of this chapter and regulations promulgated hereunder, the National Government shall not take action, or permit any State to take action, that would result in a foreign investor being given treatment that is less favorable than the treatment given to citizens, or business entities wholly owned by citizens, engaging in business in the FSM.
Noticeably absent from this section is any language which creates a cause of action on the part of the aggrieved party for damages against either the FSM or Pohnpei. In contrast, § 216(4) expressly provides that "the National Government shall be responsible for the prompt and adequate compensation of any injured noncitizen." While injunctive relief would be available to prospectively enforce § 219, AHPW does not seek that relief here. On this point, the United States Supreme Court has noted as follows (the reference to § 215 is coincidental and does not refer to the same statute at issue here, although the principle is apt):
For these reasons we conclude that when Congress declared in § 215 that certain contracts are void, it intended that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract, and for restitution. Accordingly we hold that the Court of Appeals was correct in ruling that the respondent may maintain an action on behalf of the Trust seeking to void the investment adviser’s contract.
We view quite differently, however, the respondent’s claims for damages and other monetary relief under § 206, Unlike § 215, § 206 simply proscribes certain conduct, and does not in terms create or alter any civil liabilities. If monetary liability to a private plaintiff is to be found, it must be read into the Act. Yet it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S. Ct. 242, 247, 62 L. Ed. 2d 146, 154-55 (1979).
The court also seeks additional briefing from AHPW to address this concern, which is the absence in § 219 of any language that creates a cause of action for damages for violation of that section.
2. The Chapter 3 claims against Pohnpei
AHPW contends in its motion for partial summary judgment that Pohnpei engaged in a pattern of conduct that prevented its pepper business from competing, and that prevented its trochus business from manufacturing its designated product by failing to hold a trochus harvest. These activities, urges
[12 FSM Intrm. 123]
AHPW, were in contravention of chapter 3 of Title 32. Specifically, § 302 provides in pertinent part as follows:
It is illegal for one or more persons to create or use an existing combination of capital, skill, or acts the effect of which is:
. . . .
(2) to limit or reduce the production, or increase the price of, merchandise or any commodity;
(3) to prevent competition in the manufacture, making, transportation, sale, or purchase of any merchandise, produce, or commodity;
(4) to fix at any standard or figure whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity or merchandise, produce, or commerce intended for sale, barter, use or consumption. . . .
Section 306(2) further provides that "the Trust Territory and any of its political subdivisions and public agencies shall be deemed a person within the meaning of this section." This court has previously found that Pohnpei is a "person" for purposes of Chapter 3 of Title 32. AHPW, Inc. v. FSM, 9 FSM Intrm. 301, 305 (Pon. 2000).
There can be no genuine issue of material fact that Pohnpei was in competition with AHPW. But again, it is important to bear in mind that competition is not what 32 F.S.M.C. 301 et seq. proscribes, but rather anticompetitive practices. In this regard, the court finds that questions of fact exist that preclude summary judgment in AHPW’s favor on this point. Those questions include, but are not limited to, whether the price paid by Pohnpei for raw pepper was such that it was reasonable to believe at all relevant times that its pepper processing operation would be a sustainable, self-sufficient, profit-making economic venture that would foster, not prevent or restrict, competition between it and AHPW.
As to AHPW’s motion for partial summary judgment under Chapter 3 on its trochus claims, the court also finds that fact questions exist.
Accordingly, AHPW’s motion for partial summary judgment against Pohnpei on its Chapter 3 claims is denied.
c. Pohnpei’s motion to dismiss or in the alternative motion for summary judgment
1. Administrative remedies
Pohnpei first contends that AHPW failed to exhaust its administrative remedies, although it does not specify precisely what administrative procedures would be involved. This defense has not been pled, and is thus waived.
2. Statute of limitations defense
Pohnpei also seeks reconsideration of the court’s ruling on its statute of limitation defense. The court’s prior ruling on this question, 9 FSM Intrm. 301, 304 (Pon. 2000), was limited to the statute of limitations as it related only to the trochus business, and was based solely on the allegations in the complaint. Pohnpei’s answer alleges the statute of limitations defense to the entire complaint. Pohnpei
[12 FSM Intrm. 124]
has not now or previously asked for summary judgment on the pepper claims based on the statute of limitations, and in any event the court finds that questions of fact exist. This is an issue for trial.
As to the statute of limitations question relating to the trochus allegations, Pohnpei has requested reconsideration on this point. The court will reconsider this question after trial on the merits.
3. The constitutional claims
Pohnpei has also requested summary judgment in its favor on AHPW’s constitutional claims. It urges that on the trochus claims, Pohnpei was regulating its trochus stocks under state statutory authority when it did not declare a trochus harvest. AHPW, on the other hand, contends that Pohnpei made an unqualified promise or promises to it of holding trochus harvests, and that it relied on these promises. Taken together, these two contentions generate fact questions whether Pohnpei’s conduct arises to the level of a constitutional violation. About its pepper business, Pohnpei asserts it was responding to the concerns of local pepper farmers when it bought pepper from them. At the same time, Pohnpei could not, in the guise of assisting pepper farmers, violate the provisions of 32 F.S.M.C. 301 et seq. Again, questions of fact exist.
Accordingly, Pohnpei’s motion is denied.
* * * *
1. Section 185 is as follows:
§ 185. When Taking is Wrongful under International Law
The taking by a state of property of an alien is wrongful under international law if either
(a) it is not for a public purpose,
(b) there is not reasonable provision for the determination and payment of just compensation, as defined in §187, under the law and practice of the state in effect at the time of taking, or
(c) the property is merely in transit through the territory of the state, or has otherwise been temporarily subjected to its jurisdiction, and is not required by the state because of serious emergency.