FSM SUPREME COURT TRIAL DIVISION
Cite as Barker-Saimon v. Rain 24 FSM R. 231 (Chk. 2023)
SHERRI BARKER-SAIMON, ASARINO
KANTO, KIND KANTO, and JACK FRITZ,
Petitioners,
vs.
SUSIE RAIN and AUSEN LAMBERT,
Respondents.
CIVIL ACTION NO. 2023-1004
ORDER DENYING FEES AND COSTS
Larry Wentworth
Associate Justice
Decided: August 18, 2023
APPEARANCES:
For the Petitioners:
Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941
Kathleen M. Burch, Esq.
20 Forrest Place
Atlanta, Georgia 30328
* * * *
Although the failure to oppose a motion is generally deemed a consent to the motion, the court still needs good grounds before it can grant the motion because, for a motion to be granted, even if unopposed, it must be well grounded in law and fact. Barker-Saimon v. Rain, 24 FSM R. 231, 233 (Chk. 2023).
When prevailing parties seek to tax their costs, but do not specify what their costs were or document their expenses, their request for costs can be denied on this ground alone. Barker-Saimon v. Rain, 24 FSM R. 231, 233 (Chk. 2023).
While prevailing parties are usually allowed their costs as a matter of course, costs against the FSM, its officers, and agencies can be imposed only to the extent permitted by law. Barker-Saimon v. Rain, 24 FSM R. 231, 233 (Chk. 2023).
While costs cannot be awarded against the FSM, certain FSM allottees can be chargeable with costs when those allottees had interests sufficiently distinct from the FSM to confer on them standing in their own right, but that is not the case when the non-prevailing FSM respondents have no interests distinct from their status and duties as national election officials. Barker-Saimon v. Rain, 24 FSM R. 231, 233 (Chk. 2023).
Prevailing parties' request for costs against national election officials will be disallowed because Rule 54(d) does not allow the imposition of costs on FSM officers except when permitted by law and neither the Administrative Procedures Act nor the Revised National Election Act of 2005 authorize an award of costs against the FSM, or its officers, or its agencies and because the FSM has not waived its sovereign immunity in regards to costs. Barker-Saimon v. Rain, 24 FSM R. 231, 233 (Chk. 2023).
A party seeking an attorneys' fee award must submit supporting documentation showing the attorneys' hourly rate, the date, the work done, and the amount of time spent on each service for which a claim for compensation is made. Barker-Saimon v. Rain, 24 FSM R. 231, 233 (Chk. 2023).
Under the private attorney general theory, the government reimburses a party's attorneys' fees when the party must hire its own attorney to enforce a right shared by a large number of people, when it is in the public interest. This theory recognizes that the government does not always adequately protect citizens' rights, and that people who successfully defend the public's rights at their own cost deserve to have their attorneys' fees paid, as if they had been provided the services of a "private attorney general." Barker-Saimon v. Rain, 24 FSM R. 231, 233-34 (Chk. 2023).
The private attorney general theory is available for prevailing litigants to recover their attorney's fees in bringing an action if they meet the criteria because when government officials' acts are contrary to the Constitution, and these same officials have access to the significant resources of the national government to defend their actions, there is a danger that the courts may become inaccessible to members of the public. Barker-Saimon v. Rain, 24 FSM R. 231, 234 (Chk. 2023).
The standards for application of the private attorney general theory are rigorous, and only in cases where a litigant is successful in pursuing a case that confers a substantial benefit on the public will the government be liable for attorney fees. The private attorney general theory may apply in the FSM, provided that the criteria are strictly met. Barker-Saimon v. Rain, 24 FSM R. 231, 234 (Chk. 2023).
Congress has provided specific statutory authorization for the allowance of attorney's fees under the private attorney general rationale in civil rights cases, but an election case is not a civil rights case. The election code does not provide for an attorney's fee award for successful litigants. Barker-Saimon v. Rain, 24 FSM R. 231, 234 (Chk. 2023).
The private attorney general theory criteria have not been strictly met when, although the petitioners succeeded in obtaining the relief they sought, their constitutional rights were not violated by the delay in counting, tabulating, and reporting the referendum ballots; when that delay was not contrary to the Constitution; and when, although the right to know an election's outcome is a right shared by a large number of people – all the voters and the populace in general – it is doubtful that the right to know the election results promptly, rather than to know the election's outcome accurately but after some small delay, is a substantial right deserving of an attorney's fee award under the private attorney general theory or that it is a substantial benefit conferred on the FSM people in general. Barker-Saimon v. Rain, 24 FSM R. 231, 234 (Chk. 2023).
* * * *
LARRY WENTWORTH, Associate Justice:
This comes before the court on the petitioners' motion for attorney's fees and costs, filed July 21, 2023. No response was filed. Although the failure to oppose a motion is generally deemed a consent to the motion, FSM Civ. R. 6(d), the court still needs good grounds before it can grant the motion, Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 442 (App. 1994), because, for a motion to be granted, even if unopposed, it must be well grounded in law and fact, In re Parcel No. 046-A-01, 6 FSM R. 149, 153 (Pon. 1993). The motion is denied. The reasons follow.
The petitioners seek to tax their costs, but do not specify what their costs were or document their expenses. A request for costs can be denied on this ground alone. People of Tomil ex rel. Mar v. M/C Jumbo Rock Carrier III, 17 FSM R. 198, 206 (Yap 2010) (undocumented and inadequately documented expenses disallowed); see AHPW, Inc. v. FSM, 13 FSM R. 36, 43 (Pon. 2004) (when costs are not specifically documented, court cannot determine whether expenses constitute awardable costs so none will be awarded). But even if the costs had been adequately documented, the court would still have to deny the request.
The petitioners contend that they are entitled to their costs because they were the prevailing parties in this case since they obtained a writ of mandamus against respondent Susie Rain and injunctive relief against both Susie Rain and Ausen Lambert. See Barker-Saimon v. Rain, 24 FSM R. 180 (Chk. 2023). While prevailing parties are usually allowed their costs as a matter of course, Pacific Islands Dev. Bank v. Sigrah, 23 FSM R. 79, 85 (Pon. 2020), "costs against the Federated States of Micronesia, its officers, and agencies shall be imposed only to the extent permitted by law," FSM Civ. R. 54(d).
In this case, the petitioners seek costs against the respondent FSM officers – Acting National Election Commissioner for Chuuk Susie Rain and National Election Director Ausen Lambert. In FSM v. Udot Municipality, 12 FSM R. 29, 57 (App. 2003), the appellate division held that while costs cannot be awarded against the FSM, certain FSM allottees were chargeable with costs when those allottees had interests sufficiently distinct from the FSM to confer on them standing in their own right. That is not this case. The respondents here have no interests distinct from their status and duties as national election officials.
Rule 54(d) does not allow the imposition of costs on the respondent FSM officers except when permitted by law. But neither the Administrative Procedures Act, 17 F.S.M.C. 111, nor the Revised National Election Act of 2005, 9 F.S.M.C. 101 et seq., authorize an award of costs, let alone authorize an award of costs against the FSM, or its officers, or its agencies. Nor has the FSM waived its sovereign immunity in regards to costs. See 6 F.S.M.C. 702. Accordingly, the petitioners' request for (its unspecified) costs must be denied.
The petitioners also contend that they are entitled to an award for their attorney's fees under the private attorney general theory. Again, they do not specify what their attorney's fees amount to. A party seeking an attorney's fee award must submit supporting documentation showing the attorney's hourly rate, the date, the work done, and the amount of time spent on each service for which a claim for compensation is made. George v. Sigrah, 19 FSM R. 210, 218 (App. 2013). That was not done. But even if it had been, the petitioners would still not be awarded their attorney's fees.
Under the private attorney general theory, the government reimburses a party's attorney's fees when the party must hire its own attorney to enforce a right shared by a large number of people, when it is in the public interest. FSM v. Udot Municipality, 12 FSM R. 29, 36 n.4 (App. 2003). This theory recognizes that the government does not always adequately protect citizens' rights, and that people who successfully defend the rights of the public at their own cost deserve to have their attorney's fees paid for, as if they had been provided the services of a "private attorney general." Id. The private attorney general theory is available for prevailing litigants to recover their attorney's fees in bringing an action if they meet the criteria because when government officials' acts are contrary to the Constitution, and these same officials have access to the significant resources of the national government to defend their actions, there is a danger that the courts may become inaccessible to members of the public. Id. at 55. The standards for application of the private attorney general theory are rigorous, and only in cases where a litigant is successful in pursuing a case that confers a substantial benefit on the public will the government be liable for attorney fees. Id. The private attorney general theory may apply in the FSM, provided that the criteria are strictly met. Id.
Congress has provided specific statutory authorization for the allowance of attorney's fees under the private attorney general rationale in civil rights cases – 11 F.S.M.C. 701(3) ("the court may award costs and reasonable attorney's fees to the prevailing party"). But this is not a civil rights case. It is an election case. The election code does not provide for an attorney's fee award for successful litigants. The court is wary of creating such a right.
Although the petitioners succeeded in obtaining the relief they sought, the court cannot conclude that the respondent government officials' acts are contrary to the Constitution. The election regulations and statutes require that the referendum ballots be counted, tabulated, and reported promptly, which is why the petitioners obtained the relief they did. But the court cannot conclude that the petitioners' constitutional rights were violated by that delay. Or that the delay was contrary to the Constitution. Granted, the right to know an election's outcome is a right shared by a large number of people – all the voters and the populace in general. But it is doubtful that the right to know the election results promptly, rather than to know the election's outcome accurately but after some small delay, is a substantial right deserving of an attorney's fee award under the private attorney general theory or that it is a substantial benefit conferred on the FSM people in general. This seems to be true even for those petitioners who were constitutional convention delegates and who thus may have a greater interest in and eagerness to know the outcome of the vote on the constitutional amendments they proposed and campaigned for.
If the votes had never been counted, that would have been a different matter. But there is no indication that there was a danger of that. The only indication is that the national election office on Chuuk was awaiting the arrival of outer island ballot boxes on Weno and the National Election Director's instruction before counting, tabulating, and reporting the complete referendum results.The court concludes that the private attorney general theory criteria have not been strictly met. The attorney's fee request must therefore be denied.
NOW THEREFORE IT IS HEREBY ORDERED that the motion for attorneys' fees and costs is denied. The parties shall each bear their own fees and costs as they become due.
* * * *