United States of America v. Government of Guam et al

Filing 53

Order denying 34 Plaintiff's Motion for Judgment on the Pleadings; granting in part and denying in part 35 Defendants' Motion for Judgment on the Pleadings. Signed by Senior Judge Susan Oki Mollway on 12/21/2018. (fad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE TERRITORY OF GUAM
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
GOVERNMENT OF GUAM;
)
CHAMORRO LAND TRUST
)
COMMISSION; and
)
ADMINISTRATIVE DIRECTOR OF
)
THE CHAMORRO LAND TRUST
)
COMMISSION,
)
)
Defendants.
)
_____________________________ )

CIVIL CASE NO. 17-00113
ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL JUDGMENT ON
THE PLEADINGS; ORDER GRANTING
IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS AND
JOINDER THEREIN

ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL JUDGMENT ON THE
PLEADINGS; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS AND JOINDER THEREIN
I.

INTRODUCTION.
Whether the Chamorro Land Trust Act violates the Fair

Housing Act is not an issue that this court can decide on the
thin record before it.

This court therefore denies the United

States’ motion for partial judgment on the pleadings, ruling that
the United States has failed to meet its burden of showing
entitlement to judgment as a matter of law based on the
allegations in its Complaint and on matters of which the court
may take judicial notice.
There is a second motion for judgment on the pleadings
before this court.

Guam moves for an order limiting the relief

that may be ordered against it even assuming Guam’s liability in
this case is established.

This court, agreeing with Guam that

money damages may not be recovered against it in this case,
limits any relief to declaratory and injunctive relief, while
leaving the question of whether civil penalties may be assessed
for further discussion.
II.

SUMMARY OF RULING.
In its Motion for Partial Judgment on the Pleadings,

the United States seeks to stop Guam from continuing what the
United States describes as racial discrimination through the
implementation of the Chamorro Land Trust Act.

Specifically, the

United States asserts that the provision of benefits exclusively
to “native Chamorro” individuals by the Chamorro Land Trust
Commission violates the Fair Housing Act.
Many of the factual allegations are undisputed.

During

and after World War II, the United States seized land on Guam,
mostly from Guam’s native inhabitants, the Chamorro people.

The

United States provided little or no compensation, and the
documentation underlying these seizures was sparse or
nonexistent.

Land was returned to the territory of Guam in 1952;

the language returning that land expressly recognized that Guam’s
inhabitants had had land taken from them and were entitled to
consideration of their needs.

It was not until decades later

that Guam passed the Chamorro Land Trust Act, designed to provide
leases of land to people who became United States citizens when

2

Guam became a United States territory in 1950 via the Organic Act
of Guam.

These people were mostly Chamorro people.
Guam argues that the factual allegations do not

establish that the Chamorro Land Trust is based on a racial
classification, as opposed to a political classification.

This

court agrees with Guam that, at this pleading stage, the court
cannot conclude that the Chamorro Land Trust operates as a racebased entity.

The record must be further developed to address

the question of whether the Chamorro Land Trust operates instead
as a compensatory entity that seeks to implement the return to
the people of Guam of land that the United States took from them.
Possibly, the Chamorro Land Trust includes some land that was
not taken by the United States, but, if that is so, that cannot
be discerned from the present record.

Given the state of the

record, this court rejects the United States’ contention that the
court should now determine as a matter of law that Guam is
violating the Fair Housing Act.

The matter requires further

exploration and an expansion of the record in this case.
Defendants Government of Guam and Administrative
Director of the Chamorro Land Trust Commission have their own
Motion for Judgment on the Pleadings, ECF No. 35, which argues
that the relief sought by the United States is unavailable,
although they concede in their Reply brief that this court may
award injunctive and declaratory relief.

3

Defendant Chamorro Land

Trust Commission joins in this motion.1

See ECF No. 38.

The

court grants this motion and joinder in part, ruling that money
damages are not available for the Fair Housing Act claims being
asserted against Guam.

The court denies the remainder of the

motion and joinder.
III.

BACKGROUND.
The history of Guam is fascinating and sometimes

debated by scholars.

This court need not, on the present

motions, resolve those debates.

The court instead sets forth a

brief background only to put this case into context, not to
settle any factual or historical debate.
There is no dispute that the indigenous people of Guam
are the Chamorros.

See Robert F. Rogers, Destiny’s Landfall: A

History of Guam 6-7 (Univ. of Haw. Press, 1995).

Guam was first

used by Western explorers as a food and water resource in 1521,
when Ferdinand Magellan’s three ships arrived on Guam.
a Spanish expedition claimed Guam for Spain.

In 1564,

See William L.

Wuerch & Dirk Anthony Ballendorf, Historical Dictionary of Guam
and Micronesia 41-42 (The Scarecrow Press, Inc., 1994).
Hundreds of years later, in the resolution of the
Spanish-American War, Spain ceded Guam to the United States
through Article II of the 1898 Treaty of Paris.

1

See ECF No. 40-

The three named Defendants are collectively referred to as
“Guam” in this order.
4

1,2 Page 2 of 26 (“Spain cedes to the United States . . . the
island of Guam in the Marianas or Landrones.”).

This included

41,859 acres of Spanish-owned property, or Spanish Crown lands,
constituting approximately one-fourth of Guam.

See Gov't of Guam

ex rel. Guam Econ. Dev. Auth. v. United States, 179 F.3d 630, 632
(9th Cir. 1999); Laura Thompson, Guam and its People (Greenwood
Press, 1947), ECF No. 40-1, Page 11 of 26.
With the exception of the period from 1941 through
1944, when Japan occupied Guam, authority over Guam fell under
the United States’ Department of the Navy pursuant to Executive
Order No. 108-A of December 23, 1898.

See Mailloux v. Mailloux,

554 F.2d 976, 979 (9th Cir. 1977), rev'd sub nom. on other
grounds Chase Manhattan Bank (Nat. Ass'n) v. S. Acres Dev. Co.,
434 U.S. 236 (1978); Gov't of Guam ex rel. Guam Econ. Dev. Auth.,
179 F.3d at 632; https://www.nps.gov/articles/guamwwii.htm
(indicating that Japan invaded Guam in December 1941);

2

In future filings with the court in this action, no more
than one exhibit should be included in any CMECF subsection.
Including multiple exhibits in the same CMECF subsection makes it
difficult for the court to locate exhibits. For example, ECF No.
40-1 contains Exhibits 1, 2, and part of 3. Each of those
exhibits should be uploaded separately in the future. When an
exhibit is too large to fit in a single CMECF subsection, it may
be broken into smaller parts, such as Exhibits 1a, 1b, etc. When
uploading documents to CMECF, parties must specifically identify
the exhibit corresponding to the applicable CMECF subsection. It
would aid the court if a short description of the exhibit itself
were also included, if possible. Examples: ECF No. 40-1
(Exhibit 1–Treaty of Paris); ECF No. 40-2 (Exhibit 2–Thompson,
Guam and its People).
5

https://www.nps.gov/wapa/planyourvisit/gaan-point.htm (indicating
that the United States retook Guam from Japan in July 1944).
During the Japanese occupation of Guam in World War II, Japan
freely confiscated property from the people of Guam, usually with
no compensation.

See Guam and its People 160, ECF No. 40-1, Page

12 of 26.
Before the Japanese occupation of Guam, the United
States had a relatively small military presence on Guam,
consisting almost entirely of a naval station staffed by fewer
than 1,000 people.

Robert K. Coote, Land Use Conditions and Land

Problems on Guam 8 (1951), ECF No. 40-2, Page 14 of 20.

After

the United States retook Guam from the Japanese in 1944, the
United States greatly increased its military presence on Guam,
taking lands “subject to future compensation with little regard
for ownership.”

Id.

On November 15, 1945, Congress passed the Guam
Meritorious Claims Act, Public Law 79-224, 59 Stat. 582,
authorizing the Secretary of the Navy, for a one-year period, to
adjudicate and settle claims against the United States for real
and/or personal property damage occurring on Guam during World
War II.

In 1994, Guam’s representative to Congress, Robert A.

Underwood, asked Congress to revisit Guam war reparations,
characterizing the Guam Meritorious Claims Act as wellintentioned, but unsuccessful.

See

6

https://www.gpo.gov/fdsys/pkg/CREC-1994-08-09/html/CREC-1994-08-0
9-pt1-PgH84.htm.
Underwood stated that, during the one-year limitation
period ending on December 1, 1946, language barriers and a
misunderstanding of procedures caused many people to miss out on
reparations.

Id.

At the time, “Guam was still in a state of

disaster and people were still struggling to simply survive.”
https://www.guampedia.com/guam-world-war-ii-war-claims-legislativ
e-history/; see also Senate Report 107-172 (107th Congress, June
24, 2002) (“The Guam Meritorious Claims Act of November 15, 1945
authorized the Secretary of the Navy to appoint a claims
commission to pay war claims not in excess of $5,000.

The

commission had to forward claims in excess of $5,000 to Congress,
which had to approve them.
within one year.

The Act required claims to be filed

The short time frame for filing claims may have

prevented deserving claimants from receiving compensation.”);
House Report 106-815 (106th Cong. Sept. 6, 2000),
https://www.gpo.gov/fdsys/pkg/CRPT-106hrpt815/html/CRPT-106hrpt81
5.htm, (“Unfortunately, that Act never fulfilled its intended
purposes due to the limited time frame for claims and the
preoccupation with the local population to recover from the war,
resettle their homes, and rebuild their lives.”).
On the same day it enacted the Guam Meritorious Claims
Act, November 15, 1945, Congress also enacted the Guam Land

7

Transfer Act, Public Law 79-225, 59 Stat. 584, authorizing the
Secretary of the Navy to transfer lands the military no longer
needed to the Government of Guam.

The legislative history for

that act noted that there had been extensive military acquisition
of land in Guam, resulting in over 160 military and naval land
holdings, which equaled “over half of the more valuable lands of
the island.”

House Rep. No. 1136 (79th Cong., 1st Sess. Oct. 19.

1945); Sen. Rep. No. 596 (79th Cong., 1st Sess., Sept. 10, 1945).
Both the House and Senate reports further state, “This increase
in military and naval land requirements has created a problem in
the rehabilitation of residents who have had to be moved from
property acquired for governmental use and who, therefore, have
to be resettled elsewhere on the island.”

House Rep. No. 1136;

Sen. Rep. No. 596.
The reports note that much of the Spanish Crown lands
were “unsuitable for military or naval installations but may be
suitable for resettlement purposes.”
Rep. No. 596.

House Rep. No. 1136; Sen.

Recognizing that there was no law providing for

the transfer of such lands “to former owners to replace lands
taken for military and naval use,” the reports said that it would
be “desirable to have Federal-owned land not required for
military or naval use” transferred to the Government of Guam “for
retransfer and sale to dispossessed owners.

This land would be

supplemented by other land acquired from private owners by the

8

naval Government of Guam.”

House Rep. No. 1136; Sen. Rep. No.

596.
This case has generated discussion by the parties about
what, if any, duty the United States has delegated to Guam in the
1945 Land Transfer Act.

The Ninth Circuit says that law allowed

“the United States naval government, not the territorial
government, to transfer or sell property for the resettlement of
the residents of Guam.

Nothing in that Act suggests an intention

to delegate trust responsibility to the territorial government of
Guam.”

Gov't of Guam ex rel. Guam Econ. Dev. Auth. v. United

States, 179 F.3d 630, 640–41 (9th Cir. 1999) (quotation marks and
citations omitted).

But the Ninth Circuit’s statement came in

the context of a discussion of aboriginal rights.

As discussed

later in this order, the lack of a delegated trust responsibility
with respect to aboriginal title may not be the same as the
absence of any duty delegated by the United States to the
Government of Guam with respect to individuals dispossessed of
land without regard to title at all, aboriginal or otherwise.
In January 1947, a panel was appointed to review the
naval administration of Guam and American Samoa.

The

recommendations of the panel are set forth in the Hopkins
Committee Report for the Secretary on the Civil Governments of
Guam and American Samoa.

See ECF No. 40-3.

In relevant part,

that Hopkins Report states that no land has been conveyed to the

9

people of Guam pursuant to the Guam Land Transfer Act of 1945.
See ECF No. 40-7, Page 8 of 9 (“Persons who have been
dispossessed of their homes and land by military forces have yet
to receive any land, comparable or otherwise, in return.”).

The

report characterized the Guam Land Transfer Act as setting up a
“pool from which could be allotted suitable parcels of land for
purchase by those citizens of Guam whose land has been acquired
by the United States.”

Id.

On or about June 28, 1948, the Naval Governor of Guam,
Charles A. Pownall, wrote a letter to the Guam Congress.

Pownall

estimated that
sixty percent of the privately-owned lands
lying within areas held by the Government are
either unregistered or merely provisionally
recorded. . . . An even greater percentage of
privately-owned land titles are involved in
probate proceedings. These difficulties
exist as a result of failure on the part of
Guamanians during past years to register the
title to lands owned by them or to probate
the estates of deceased persons through whom
ownership is derived.
ECF No. 40-16, Page 6 of 8.

Thus, the Naval Government of Guam

recognized the difficulty of determining private land ownership
at that time.
Robert K. Coote, in Land Use Conditions and Land
Problems on Guam 3 (1951), ECF No. 40-2, Page 9 of 20, explained
that it was “difficult or impossible to identify land ownership”
because pre-World War II land records were not good or were

10

destroyed during the war.

Accordingly, returning land to people

who had had land on Guam taken by the United States raised
difficulties from the outset.
On August 1, 1950, Congress passed the Organic Act of
Guam, establishing Guam as an organized, unincorporated
territory.

64 Stat. 384 (“Sec. 3. Guam is hereby declared to be

an unincorporated territory of the United States . . . . [I]ts
relations with the Federal Government shall be under the general
administrative supervision of the head of such civilian
department or agency of the Government of the United States as
the President may direct.”).

Authority over Guam was transferred

to the Department of Interior, effective August 1, 1950, by
Executive Order 10077 of September 7, 1949.
https://www.archives.gov/federal-register/codification/executiveorder/10077.html.
In relevant part, the 1950 Organic Act of Guam granted
United States citizenship to the following people (and their
children born after April 11, 1899): 1) inhabitants of Guam on
April 11, 1899, who were Spanish subjects who continued to reside
in Guam as of August 1, 1950; 2) persons born on Guam who resided
in Guam on April 11, 1899, who continued to reside in Guam as of
August 1, 1950; and 3) all persons born on Guam on or after April
11, 1899.

See 64 Stat. 384 (1950).

relevant portion of the Organic Act:

11

The following is the

The grant of citizenship to people born on Guam is now codified
in 8 U.S.C. § 1407.
The court takes judicial notice of the 1950 Census data
See Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th

for Guam.

Cir. 2010) (taking judicial notice of Census data).

According to

the 1950 Census at 54-46, Guam in 1950 had a population of
59,498.

https://www.census.gov/prod/www/decennial.html

(including “Census of Population and Housing, 1950” with link to

12

“1950 Census of Population,” followed by “Vol. 1. Number of
Inhabitants” and linking to “Full Document”).

According to the

2010 Census, Guam’s population increased by almost 100,000 people
in the 60 years after Guam became a territory.

See

https://www.census.gov/2010census/news/pdf/cb11cn179_ia_guam_tota
lpop_2010map.pdf (indicating that the population of Guam in 2010
was 159,358).
According to the 1950 Census at 54-38, 54-46, and 5452, and its Table 38, 22,920 Whites lived on Guam (of which
22,513 were already United States citizens, 272 were naturalized
United States citizens, including former United States nationals
who had been naturalized, and 36 were United States nationals).3
There were 27,124 Chamorros (of which 736 were already United
States citizens, 440 were naturalized United States citizens,
including former United States nationals who had been
naturalized, and 25,788 were United States nationals).

Filipinos

numbered 7,258 (of which 387 were already United States citizens,
144 were naturalized United States citizens, including former

3

The court’s understanding is that the term “national”
refers to persons born in or having ties to an “outlying
possession of the United States.” 8 U.S.C. § 1408. In relevant
part, this would include those born on Guam between 1898 and
1950. Nationals do not qualify for rights restricted by law to
citizens (e.g., the right to vote in federal elections guaranteed
by the 26th Amendment to the United States Constitution, the
right to be elected President as stated in Article II, Section 1
of the Constitution, and the right to be elected to the United
States Senate or House of Representatives as stated in Article I,
Sections 2 and 3 of the Constitution).
13

United States nationals who had been naturalized, and 127 were
United States nationals).

There were 91 Chinese (of which 56

were already United States citizens, 5 were naturalized United
States citizens, including former U.S. nationals who had been
naturalized, and 24 United States were nationals).

There were

2,105 in the “Other” category, defined as Japanese, Korean,
Black, and other nonwhite people (of which 1,733 were already
United States citizens, 12 were naturalized United States
citizens, including former United States nationals who had been
naturalized, and 167 were United States nationals).

The group of

354 non-Chamorro United States nationals (White, Filipino,
Chinese, and other) living on Guam in 1950 was approximately 1.4%
of the 25,788 Chamorro United States nationals living on Guam in
1950.4

4

At the hearing on the motions, the parties did not agree
with respect to who became citizens via the Organic Act of Guam.
This court does not here decide that fact. Nor can this court
determine on the present record whether the reference in the
1950 Census to “Chamorro” included people who identified as
Chamorro but may have also been of other races, such as children
of interracial couples.
14

“[B]y 1950, more than 50 percent of the actual acreage
in Guam was occupied by inactive military installations.”

Gov't

of Guam ex rel. Guam Econ. Dev. Auth., 179 F.3d at 639 (citing
Civil Gov't of Guam: Hearing on S. 185, S. 1892 & H.R. 7273
Before a Senate Subcomm. of the Comm. on Interior and Insular
15

Affairs, 81st Cong. 62, 2d Sess. (Apr. 19, 1950)).

As with the

Guam Land Transfer Act of 1945, Congress stated with respect to
the Organic Act of Guam, “The committee recommends that the need
of the military for the land now held by it should be carefully
reexamined, with the object of releasing at the first possible
moment all lands not actually required for military purposes.”
Gov't of Guam ex rel. Guam Econ. Dev. Auth., 179 F.3d at 639
(quoting House Rep. No. 81–1677 (1950)).

Congress similarly

directed “[t]hat the armed forces immediately resurvey their
military needs for lands throughout the Trust Territory, and in
Guam and American Samoa, so that all land not absolutely required
for military purposes may be returned to private ownership and
use.”

Id. (quoting Hearing on H.R. 4499 Before the Senate Comm.

on Interior and Insular Affairs, 81st Cong. 20, Exec. Sess. (Jan.
30, 1950)).
Section 5(n) of the Organic Act of Guam, codified as 48
U.S.C. § 1421b(n), provides: “No discrimination shall be made in
Guam against any person on account of race, language, religion,
nor shall the equal protection of the laws be denied.”
Congress granted Guam broad authority to control land
that the United States did not reserve to itself.

In Section

28(b) of the Organic Act of Guam, codified as 48 U.S.C.
§ 1421f(b), Congress gave the President ninety days to reserve

16

real or personal property on Guam.

Any property not so reserved

was placed
under the control of the government of Guam,
to be administered for the benefit of the
people of Guam, and the legislature shall
have authority, subject to such limitations
as may be imposed upon its acts by this
chapter or subsequent Act of the Congress, to
legislate with respect to such property, real
and personal, in such manner as it may deem
desirable.
Id.
In Section 28(c) of the Organic Act of Guam, codified
as 48 U.S.C. § 1421f(c), all property owned by the United States
in Guam that was not transferred to the Government of Guam was
transferred to the “administrative supervision of the head of the
department or agency designated by the President.”
Within the required 90 days, President Harry S. Truman
issued Executive Order 10178 of October 30, 1950, setting forth
the land reserved by the Government and transferring other land
to the Secretary of the Interior.

See

https://www.trumanlibrary.org/executiveorders/index.php?pid=246.
The Ninth Circuit has characterized this executive order as
reserving “almost all the land subject to § 28(b).”
Guam ex rel. Guam Econ. Dev. Auth., 179 F.3d at 639.

Gov't of
The

Executive Order also referred to certain other real property of
the United States in Guam as having been selected
by the Secretary of the Navy for transfer or
sale pursuant to the act of November 15 1945,
17

59 Stat. 584 [the Guam Land Transfer Act], to
persons in replacement of lands acquired for
military or naval purposes in Guam, and such
property should remain available for
disposition by the Secretary of the Interior
in his discretion under section 28(c) of the
said Organic Act of Guam.
Id.
In 1952, the Department of the Interior transferred
certain federal lands to the Government of Guam.
17, Pages 12 to 26 of 28.

See ECF No. 40-

An explanatory statement accompanying

the transfer stated:
By this conveyance, the people of Guam regain
jurisdiction over lands which were claimed by
the Spanish Crown during the Spanish
occupation, beginning in the 16th Century.
These lands, amounting to approximately
30,000 acres, were ceded to the United States
by the Treaty of Paris in 1898. This acreage
constitutes about 21 percent of the total
land area of the island.
ECF No. 40-17, Page 9 of 28.

The parties are not disputing that

the Spanish Crown lands transferred to Guam in 1952 are part of
the Chamorro Land Trust.
The 1952 transfer states:
pursuant to the authority vested in the
Secretary of the Interior by Executive Order
No. 10178 and under section 28(c) of the
Organic Act of Guam, for the consideration of
on dollar ($1), there is hereby conveyed to
the government of Guam title to all of the
lands reserved to the United States and
transferred to the administrative supervision
of the Secretary of the Interior by Executive
Order No. 10178, it being expressly
stipulated that if the Government of Guam,
without prior approval of the Secretary of
18

the Interior, sells, leases or otherwise
disposes of any parcels of said lands for
other than (1) the purposes of the Guam
rehabilitation and resettlement program in
accordance with section 40 of Public Law 33
of the First Guam Congress, and (2) the
homestead program in accordance with Article
8 of Public Law 33, title to such parcel or
parcels of land shall automatically revert to
the United States.
ECF No. 40-17, Page 13 of 28.

The transfer further states:

the objectives of the Guam rehabilitation and
resettlement program may best be realized by
placing administrative responsibility for
implementation of this program in the
government of Guam, to be carried out in
accordance with the priorities established in
section 40 of Public Law 33 of the First Guam
Congress.
ECF No. 40-17, Page 7 of 28.
In other words, the United States delegated to Guam the
administration of the resettlement program relating to land taken
by the United States.

Possibly, the United States was

recognizing the difficulties presented by the paucity of records.
In the cover letter sent by the Secretary of the
Interior to the Governor of Guam, the Secretary reiterated:
By virtue of this conveyance the Government
of Guam obtains a fee simple determinable
title to the lands so transferred. The
Government of Guam may, without the approval
of the Secretary of the Interior, sell, lease
or otherwise dispose of any of these lands
for (1) rehabilitation and resettlement
purposes in accordance with section 40 of
Public Law 33 of the First Guam Congress, and
(2) for homestead purposes in accordance with
Article 8 of Public Law 33. . . . Under the
terms of the conveyance, however, the sale,
19

lease or disposal of these lands for other
than homestead or rehabilitation and
resettlement purposes would automatically
cause a reversion to the United States of
title to any parcel or parcels of land so
disposed of unless prior approval of the
Secretary had been obtained.
Letter from Oscar L. Chapman to Gov. Carlton Skinner (Feb. 26,
1952), ECF No. 40-17, Page 5 of 28.
Public Law 33 of the First Guam Legislature (1951)
regulates the use and disposition of public lands.

See

http://www.guamlegislature.com/Public_Laws_1st/PL01-033.pdf.
Section 40 of Public Law 33 states:
Section 40. The Board, in considering
and acting upon applications to lease or buy
Government real property for residential or
agricultural purposes, shall apply and
observe the following priorities:
First, persons who have had all of their
land acquired by the United States, the Naval
Government of Guam, or the Government of
Guam, and who have owned no other land since
January l, 1946;
Second, persons who have had a
substantial portion of their land acquired by
the United States, the Naval Government of
Guam, or the Government of Guam, since July
l, 1944, the remaining portion whose land is
not adequate or sufficient for reasonable
agricultural or residential purposes.
Id.
Section 52 of Article 8 of Public Law 33 provides for
homesteads for agricultural or grazing purposes.

Section 53 of

Article 8 authorizes homesteads to be given to “[e]very person

20

who is the head of a family, eighteen or more years old, a
citizen of the United States, a resident of Guam for at least
five years preceding the date of application and who has neither
purchased more than one half hectare of land from the Naval
Government of Guam or the Government of Guam since July 1, 1944,
nor homestead and land on Guam for fifteen years preceding the
date of application.”

Id.

Not only did the Secretary of the Interior mandate that
certain land be used in a manner consistent with Section 40 and
Article 8 of Public Law 33, Congress appears to have approved
those sections, as Congress did not timely annul them.

Before

1968, the Organic Act of Guam provided that all Guam laws were to
be sent to Congress, which could, within one year, annul any
particular law before the law would be “deemed to have been
approved.”

See 64 Stat. 389 (1950); see also Ramsey v. Chaco,

549 F.2d 1335, 1338 (9th Cir. 1977) (“Prior to amendment in 1968,
however, the Organic Act also provided that all laws enacted by
the Guam legislature ultimately would be reported to Congress,
and unless Congress acted to annul the law within one year, it
was deemed to have congressional approval.”).

As described

above, Section 40 of Public Law 33 mandated that the Land Board,
“in considering and acting upon applications to lease or buy
Government real property for residential or agricultural
purposes,” give priority to persons who had had their land taken

21

by the United States, the Naval Government of Guam, or the
Government of Guam since July 1, 1944 (approximately 3 weeks
before the United States retook possession of Guam from Japan in
World War II).

Because Congress did not annul Section 40 of

Public Law 33, it is deemed to have approved it.
In 1975, Guam established the Chamorro Land Trust
Commission through the Chamorro Land Trust Act.

In relevant

part, that Act provided leases of “Chamorro homelands” and loans
to the “native Chamorro.”5

See Guam Pub. L. 12-226 (1975),

http://www.guamlegislature.com/Public_Laws_12th/PL12-226.pdf.
The Act originally defined “native Chamorro” as “any person who
the Commission determines to be of at least one-fourth part of
the blood of any person who inhabited the island prior to 1898.”
Id.

In 1980, that definition was changed to “any person who

became a U.S. Citizen by virtue of the authority and enactment of
the Organic Act of Guam or descendants of such person.”

See Guam

Pub. L. 15-118 (1980),

5

Under § 75107, the Chamorro Land Trust Commission “is
authorized to lease to native Chamorros the right to the use and
occupancy of a tract or tracts of Chamorro homelands.” Under
§ 75107, the Chamorro Land Trust Commission is authorized to
enter into 99-year leases of the tracts of land for one dollar
per year. Under § 75112, the Chamorro Land Trust Commission may
guarantee loans or make loans to native Chamorros, including
loans at below-market rates. Guam says that it has not
implemented the loan program. See Decl. of Michael J.B. Borja
¶ 5, ECF No. 40-18, Page 13 of 37. This court does not
judicially notice that fact, as the implementation of the loan
program does not affect whether the Fair Housing Act has been
violated as alleged in the Complaint.
22

http://www.guamlegislature.com/Public_Laws_15th/PL%2015-118.pdf.
That amended definition is the definition of “native Chamorro” in
effect today.

See 21 GCA § 75101(d).

In its Reply in Support of its Motion for Judgment on
the Pleadings, the United States concedes that “a small number of
non-Chamorros may qualify [for benefits under the Chamorro Land
Trust Act], and some ethnic Chamorros do not.”
8 of 20.

ECF No. 43, Page

The reference to a “small number of non-Chamorros”

eligible for benefits under the Chamorro Land Trust Act appears
to be a recognition that the 1950 Census indicates that some
individuals not described as Chamorros were among those who
became United States citizens through the Organic Act of Guam.
Additionally, there is no dispute that Chamorros born on Guam who
cannot trace their citizenship to a birthright citizenship as of
1950 do not qualify as “native Chamorro” for purposes of the
Chamorro Land Trust Act.

Take, for example, a person born in

1949 on Guam to American citizens of Chamorro descent who were
born in California but moved to Guam in 1949.

That person would

not qualify as “native Chamorro” because that person was already
an American citizen by virtue of having been born to people who
were American citizens before the passage of the Organic Act of
Guam in 1950.

That person could not be said to have become an

American citizen under the Organic Act, a requirement for fitting

23

into the definition of “native Chamorro” in the Chamorro Land
Trust Act.
In relevant part, the Chamorro Land Trust Act defines
“Chamorro homelands” as “all lands given the status of Chamorro
homelands under the provisions of § 75105 of this Chapter.”
See 21 GCA § 75101(c).

Under § 75105, all “available lands shall

assume the status of Chamorro homelands and shall be under the
control of the [Chamorro Land Trust] Commission.”

Under § 75104,

“available lands” are all government lands except lands dedicated
for a specific purpose and other reserved land.

There is no

dispute that at least some of the Spanish Crown lands transferred
to Guam in 1952 are part of the trust.

However, the record does

not establish exactly what land is part of the trust.
Despite the passage of the Chamorro Land Trust Act, it
does not appear that the Act was implemented until a court in
1993 ordered implementation.

See Decision and Order on

Petitioners’ Writ of Mandate, Santos v. Ada, Special Proceeding
Case No. SP0083-92 (Guam Sup. Ct. 1993), ECF No. 34-1.

Guam’s

Chamorro Land Trust Commission began operating in 1995, the same
year it began accepting applications for leases under the
Chamorro Land Trust Act.

See Guam Pub. L. 23-38, § 5.1 (1995),

http://www.guamlegislature.com/Public_Laws_23rd/P.L.%2023-38%20(S
B%20317%20(LS))pdf.pdf.

24

Now, nearly a quarter century after implementation
began, the United States challenges that implementation of the
Chamorro Land Trust Act as racially discriminatory.
IV.

MOTION FOR JUDGMENT ON THE PLEADINGS STANDARD.
Rule 12(c) states, “After the pleadings are closed--but

early enough not to delay trial--a party may move for judgment on
the pleadings.”

The standard governing a Rule 12(c) motion for

judgment on the pleadings is “functionally identical” to that
governing a Rule 12(b)(6) motion.

United States ex rel. Caffaso

v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.
2011); accord Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d
1147, 1155 (9th Cir. 2015) (“Analysis under Rule 12(c) is
‘substantially identical’ to analysis under Rule 12(b)(6)
because, under both rules, a court must determine whether the
facts alleged in the complaint, taken as true, entitle the
plaintiff to a legal remedy.”).
For a Rule 12(c) motion, the allegations of the
nonmoving party are accepted as true, while the allegations of
the moving party that have been denied are assumed to be false.
See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,
1550 (9th Cir. 1989).

A court evaluating a Rule 12(c) motion

must construe factual allegations in a complaint in the light
most favorable to the nonmoving party.
F.3d 922, 925 (9th Cir. 2009).

Fleming v. Pickard, 581

Under Rule 12(c), “‘Judgment on
25

the pleadings is properly granted when, accepting all factual
allegations as true, there is no material fact in dispute, and
the moving party is entitled to judgment as a matter of law.’”
Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012)
(quoting Fleming, 581 F.3d at 925).
V.

ANALYSIS.
In relevant part, the Fair Housing Act makes it

unlawful:
(a) To refuse to sell or rent after the
making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or
otherwise make unavailable or deny, a
dwelling to any person because of race,
color, religion, sex, familial status, or
national origin.
(b) To discriminate against any person in the
terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of
services or facilities in connection
therewith, because of race, color, religion,
sex, familial status, or national origin.
(c) To make, print, or publish, or cause to
be made, printed, or published any notice,
statement, or advertisement, with respect to
the sale or rental of a dwelling that
indicates any preference, limitation, or
discrimination based on race, color,
religion, sex, handicap, familial status, or
national origin, or an intention to make any
such preference, limitation, or
discrimination.
42 U.S.C. § 3604.

The Fair Housing Act also makes it unlawful

for any person or other entity whose business
includes engaging in residential real
estate-related transactions to discriminate
against any person in making available such a
26

transaction, or in the terms or conditions of
such a transaction, because of race, color,
religion, sex, handicap, familial status, or
national origin.
42 U.S.C.A. § 3605(a).
The Fair Housing Act “was enacted to eradicate
discriminatory practices within a sector of our Nation’s
economy.”

Texas Dep't of Hous. & Cmty. Affairs v. Inclusive

Communities Project, Inc., 135 S. Ct. 2507, 2521 (2015) (holding
that disparate impact claims are cognizable under the Fair
Housing Act).

To that end, courts have noted that “Section

3604(a) is designed to ensure that no one is denied the right to
live where they choose for discriminatory reasons.”

Southend

Neighborhood Imp. Ass'n v. St. Clair Cty., 743 F.2d 1207, 1210
(7th Cir. 1984); see also Jersey Heights Neighborhood Ass'n v.
Glendening, 174 F.3d 180, 192 (4th Cir. 1999) (same); United
States v. Starrett City Assocs., 840 F.2d 1096, 1100 (2d Cir.
1988) (same).
Persons aggrieved under the Fair Housing Act may bring
a civil action directly against defendants pursuant to 42 U.S.C.
§ 3613.

In addition, the United States, through its Attorney

General, may assert claims for violations of the Fair Housing Act
under 42 U.S.C. § 3614, which allows such claims when 1) any
person or group of persons is engaged in a pattern or practice of
resistance to the full enjoyment of any Fair Housing Act rights,
or 2) any group of persons has been denied Fair Housing Act
27

rights and such denial raises an issue of general public
importance.

The United States contends that the Chamorro Land

Trust violates the Fair Housing Act by discriminating against
non-Chamorros on the basis of race and/or national origin.6
A.

The Record Does Not Establish Whether the Chamorro
Land Trust Act Relies On An Impermissible RaceBased Classification or a Permissible Political
Classification.

The Supreme Court has stated that “all racial
classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under
strict scrutiny.

In other words, such classifications are

constitutional only if they are narrowly tailored measures that
further compelling governmental interests.”

Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

“When no

suspect class is involved and no fundamental right is burdened,
we apply a rational basis test to determine the legitimacy of the
classifications.”
(9th Cir. 2004).

Kahawaiolaa v. Norton, 386 F.3d 1271, 1277–78
“The conclusion of whether a governmental act

is subject to strict scrutiny or rational basis examination is

6

Courts have sometimes analyzed Indian tribe discrimination
as national origin discrimination. See Dawavendewa v. Salt River
Project Agr. Imp. & Power Dist., 154 F.3d 1117, 1120 (9th Cir.
1998). At other times, courts have analyzed such discrimination
as race discrimination. See Moe v. Confederated Salish &
Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 479
(1976). In its motion, the United States categorizes both race
and national origin discrimination as race discrimination for
ease of reference.
28

important, as it often determines the outcome of the inquiry.”
Id.

The strict scrutiny/rational basis dichotomy normally

applies to Equal Protection Clause challenges, but cases
interpreting which standard to apply in the constitutional
context are instructive with respect to the Fair Housing Act race
and national origin discrimination claims asserted in this case,
because the Equal Protection cases discuss how to define race or
national origin discrimination.
The United States argues that the Charmorro Land Trust
Act discriminates with respect to housing benefits (particularly
leases of land) based on a racial classification by providing a
housing benefit only to “native Chamorros.”

Guam, on the other

hand, argues that “native Chamorro” is defined as a political
classification, not as a race or national origin classification.
The United States argues that the Chamorro Land Trust
Act discriminates on the basis of race or national origin because
the Act benefits only Chamorros in violation of the Fair Housing
Act.

This court does not accept this proposition on the present

record.

While the Act mentions Chamorros, the Act is for the

benefit of “native Chamorros,” a category specifically defined by
the Act.

The court therefore starts with that definition.
Originally, “native Chamorro” was defined as “any

person who the Commission determines to be of at least one-fourth
part of the blood of any person who inhabited the island prior to

29

1898.”

While the original definition may have raised the specter

of race- or national origin-based discrimination, the definition
of “native Chamorro” was changed in 1980.

The present definition

refers to “any person who became a U.S. Citizen by virtue of the
authority and enactment of the Organic Act of Guam or descendants
of such person.”

The present definition does not, on its face,

rely on race or national origin.

The present definition is

facially neutral in that respect.

Of course, facially neutral

criteria do not guarantee that the “native Chamorro” definition
is not in fact discriminatory.
In Pacific Shores Properties, LLC v. City of Newport
Beach, 730 F.3d 1142, 1160 n.23 (9th Cir. 2013), the Ninth
Circuit noted that a seemingly neutral law can be a proxy for
discrimination.

Proxy discrimination “arises when the defendant

enacts a law or policy that treats individuals differently on the
basis of seemingly neutral criteria that are so closely
associated with the disfavored group that discrimination on the
basis of such criteria is, constructively, facial discrimination
against the disfavored group.”

Id.

This court therefore turns

to the 1950 Organic Act of Guam to examine whether the reference
to it in the Chamorro Land Trust Act amounts to proxy
discrimination.
The Organic Act granted United States citizenship to
the following people (and their children born after April 11,

30

1899): 1) inhabitants of Guam on April 11, 1899, who were Spanish
subjects who continued to reside in Guam as of August 1, 1950;
2) persons born on Guam who resided in Guam on April 11, 1899,
who continued to reside in Guam as of August 1, 1950; and 3) all
persons born on Guam on or after April 11, 1899.

The

1950

Census indicates that 354 non-Chamorro (White, Filipino, Chinese,
and other) individuals became “U.S. Nationals,” presumably via
the Organic Act.

That number is approximately 1.4% of the 25,788

Chamorro “U.S. Nationals” in 1950 who appear to have become
United States citizens via the Organic Act of Guam.

As this

court noted earlier, the Census data may include children of
interracial couples, and it is unclear whether those children
identified as Chamorro for purposes of the 1950 Census.
In Davis v. Guam, No. CV 11-00035, 2017 WL 930825, at
*6 (D. Guam Mar. 8, 2017), the 354 non-Chamorros were described
as a “diminutive number” compared to the 25,788 Chamorros.

Davis

examined whether the term “Native Inhabitants of Guam” was
defined in a racially discriminatory way and served as a proxy
for race-based discrimination in the context of a law limiting
who could vote in a plebiscite.

The plebiscite was a territorial

election concerning Guam’s future relationship with the United
States.

The aim was to determine whether native inhabitants

preferred independence, free association, or statehood.
930825, at *1.

2017 WL

In a ruling that is the subject of an appeal

31

pending in the Ninth Circuit, the court said that the limitation
on who could vote violated the Fifteenth Amendment’s prohibition
on a race-based denial or abridgment of the right to vote.

Id.

at *6.
The definition of “Native Inhabitants of Guam” that was
at issue in Davis is similar to the original definition of
“native Chamorro” in the Chamorro Land Trust Act.

However, the

conclusion in Davis that the former definition amounts to a proxy
for race discrimination does not necessarily apply to the issue
before this court.
First, the definition in the present case, which
indisputably includes some non-Chamorro individuals, comes from
1980 and does not track the original definition, which was
similar to the definition in Davis.

Second, the present case may

end up turning on the history of the United States’ attempts to
rehabilitate or compensate people for land taken by the United
States.

Davis involved no such compensatory argument.

Instead,

Davis turned on a voting requirement that limited the right to
vote in a territory-wide election to “native inhabitants of
Guam.”
The determination of whether a provision is racially
discriminatory affects the level of scrutiny a court gives the
challenged provision.

In Morton v. Mancari, 417 U.S. 535 (1974),

the Supreme Court held that, while most race-based preferences
32

are subject to “strict scrutiny” review, preferences given to
American Indian tribes are reviewed under the “rational basis”
standard.

In so holding, the Supreme Court recognized that

Congress had plenary power to deal with the “special problems of
Indians.”

Id. at 551-52.

Morton arose out of a challenge to an

employment preference given to qualified Indians for jobs in the
Bureau of Indian Affairs.

Morton discussed the “special

relationship” the United States had with Indian tribes--that of
“guardian-ward”:
“In the exercise of the war and treaty
powers, the United States overcame the
Indians and took possession of their lands,
sometimes by force, leaving them an
uneducated, helpless and dependent people,
needing protection against the selfishness of
others and their own improvidence. Of
necessity the United States assumed the duty
of furnishing that protection, and with it
the authority to do all that was required to
perform that obligation and to prepare the
Indians to take their place as independent,
qualified members of the modern body politic.
. . .”
Morton, 417 U.S. at 552 (quoting Board of County Comm'rs v.
Seber, 318 U.S. 705, 715 (1943)).
Given that relationship, Morton ruled that the
employment preference given to qualified Indians was not racial
discrimination.
preference.”

“Indeed, it [was] not even a ‘racial’

Morton, 417 U.S. at 552.

The Supreme Court

therefore applied a rational basis test, stating, “As long as the
special treatment can be tied rationally to the fulfillment of
33

Congress’ unique obligation toward the Indians, such legislative
judgments will not be disturbed.”

Id. at 555.

Even if Morton does not entirely apply here given the
Fair Housing Act context and the lack of any federal designation
of Chamorros as an American Indian tribe, Morton provides some
guidance with respect to whether the Chamorro Land Trust Act is
based on a racial or a political classification.

Morton suggests

that this case should not necessarily be decided along the same
lines as Davis.

The Davis focus on whether an allegedly racial

requirement for voting in a territorial election violated the
Fifteenth Amendment might not have turned on the federal
government’s “special relationship” with “native Chamorros.”
Since Morton, courts have distinguished between
impermissible differential treatment of groups based on race or
national origin and permissible differential treatment of Indian
tribes based on political classifications.
Davis was decided in the aftermath of Rice v. Cayetano,
528 U.S. 495, 499 (2000), in which the Supreme Court invalidated
a Hawaii law limiting participation in an election for trustees
of the Office of Hawaiian Affairs to Hawaiians.

Only descendants

of Hawaiian ethnicity were allowed to vote for trustees, who were
to oversee certain benefits to Hawaiians.

The Court held that

denying non-Hawaiians the right to vote violated the Fifteenth
Amendment.

Rice recognized that “Congress may fulfill its treaty
34

obligations and its responsibilities to the Indian tribes by
enacting legislation dedicated to their circumstances and needs,”
but Rice declined to extend Morton beyond the preference given to
a federally recognized Indian tribe, which Hawaiians were not.
Id. at 519-20.

The Office of Hawaiian Affairs election was an

election held by the State of Hawaii, as opposed to an election
administered by a tribe (a quasi-sovereign).

The election

involved an “arm of the state” that the Supreme Court said was
prohibited by the Fifteenth Amendment from discriminating based
on race.

Id. at 521-22.
Rice noted, “Ancestry can be a proxy for race.”

528 U.S. at 514.

Rice,

The Court said that, in limiting who could vote

to “any descendant of the aboriginal peoples inhabiting the
Hawaiian Islands which exercised sovereignty and subsisted in the
Hawaiian Islands in 1778, and which peoples thereafter have
continued to reside in Hawaii,” Hawaii used ancestry “as a racial
classification and for a racial purpose.”

Id. at 515.

“Rice concerned elections of the State of Hawaii to
which the Fifteenth Amendment applied, and application of [Morton
v.] Mancari to such facts would permit a State, by racial
classification, to fence out whole classes of its citizens.

In

short, at its core, Rice concerned the rights of individuals, not
the legal relationship between political entities.”

35

Kahawaiolaa

v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (quotation marks,
alterations, and citations omitted).
Like Rice, the Davis case dealt with the Fifteenth
Amendment.7

A determination going to voting rights is not

necessarily dispositive of whether the term “native Chamorro” is
a racial or political classification for purposes of preferences
given to indigenous people based on circumstances and needs.

In

the present case, Guam asks this court to consider the taking of
land from people in Guam who should have some recompense.

Those

people are identified in terms of the United States citizenship
conferred on them when Guam became a United States territory.
This case turns on whether that is or is not a political
classification as opposed to a racial one.

Rice and Davis are

therefore distinguishable.

7

The Ninth Circuit reached a similar result in Davis v.
Commonwealth Election Commission, 844 F.3d 1087 (9th Cir. 2016),
which held that a provision restricting voting in certain
Northern Mariana Islands elections to individuals of Northern
Mariana descent violated the Fifteenth Amendment by limiting
voting on the basis of race. Unlike elections within American
Indian tribes that are “quasi-sovereign” and are given wide
latitude with respect to their internal affairs, the Northern
Mariana elections affected the entire commonwealth. Cases giving
such wide latitude to American Indian tribes were held to be
inapplicable. Id. at 1094. The present case, by contrast,
raises the issue of whether the United States intended land to be
administered for the benefit of people the United States had
taken land from.

36

This court has some guidance from the Ninth Circuit
regarding political classifications.

In EEOC v. Peabody W. Coal

Co., 773 F.3d 977 (9th Cir. 2014), the Ninth Circuit upheld an
employment preference required by leases concerning a coal mining
enterprise on Hopi and Navajo reservations.

The Ninth Circuit

looked to Morton in determining that the tribe-specific
preference was based on the same policy considerations at issue
in Morton--the unique obligations Congress had toward Indians.
Id. at 987-88.

The Ninth Circuit concluded that the employment

preference was based on a “political classification,” rather than
a race-based classification.
In Kahawaiolaa, 386 F.3d at 1274, a group of native
Hawaiians complained that the Department of the Interior was
excluding native Hawaiians from Department regulations that
recognized Indian tribes.

The Department was limiting

eligibility for consideration as a tribe to groups in the
“contiguous 48 states and Alaska.”

The Ninth Circuit ruled that

regulations pertaining to recognition of Indian tribes involved
political concerns, not concerns that were racial in nature.
Accordingly, the Ninth Circuit applied a rational basis review of
the regulations.

Id. at 1279.

The Ninth Circuit stated:

“Federal recognition may arise from treaty, statute, executive or
administrative order, or from a course of dealing with the tribe

37

as a political entity.” Id. at 1273 (quotation marks and citation
omitted).
The Ninth Circuit returned to the issue of how
Hawaiians are treated in Doe v. Kamehameha Sch./Bernice Pauahi
Bishop Estate, 470 F.3d 827, 850 (9th Cir. 2006) (en banc).

In a

concurring opinion, Judge William A. Fletcher, joined by Judges
Harry Pregerson, Stephen R. Reinhardt, Richard A. Paez, and
Johnnie B. Rawlinson, noted that Congress has enacted more than
150 laws that extend to native Hawaiians the same rights and
privileges accorded to American Indians, Alaskan Natives, and
Aleut communities.

The concurrence noted that Congress had

emphasized that it “d[id] not extend services to Native Hawaiians
because of their race, but because of their unique status as
indigenous people of a once sovereign nation as to whom the
United States has established a trust relationship.”
(quoting 20 U.S.C. § 7512(12)(B)).

Id.

“The basis for this exercise

of power is Congress’ conclusion that ‘Native Hawaiian,’ like
‘Alaska Native’ and ‘Indian,’ is a political classification
subject to the special relationship doctrine.”

Id. at 852.

In so stating, the concurrence recognized that “the
Supreme Court has not insisted on continuous tribal membership,
or tribal membership at all, as a justification for special
treatment of Indians.”

Id. at 851.

Judge Fletcher wrote:

In United States v. John, 437 U.S. 634, 98 S.
Ct. 2541, 57 L. Ed. 2d 489 (1978), decided
38

after [Morton v.] Mancari, the Court held
that “Indian country,” as used in 18 U.S.C.
§ 1151, included the Choctaw Indian
Reservation in Mississippi. The Court noted
that for many years the Choctaw lands in
Mississippi had not been reservation lands,
and that some Choctaws may have been
considered to be reservation Indians based on
their having “one-half or more Indian blood”
rather than on any tribal membership. Id. at
650, 98 S. Ct. 2541. The Court concluded,
“Neither the fact that the Choctaws in
Mississippi are merely a remnant of a larger
group of Indians, long ago removed from
Mississippi, nor the fact that federal
supervision over them has not been
continuous, destroys the federal power to
deal with them.” Id. at 653, 98 S. Ct. 2541.
Doe, 470 F.3d at 851.
Further guidance relating to Indian Tribes is found in
Alaska Chapter, Associated General Contractors of America, Inc.
v. Pierce, 694 F.2d 1162 (9th Cir. 1982).

In that case, the

Ninth Circuit applied the Morton analysis to a contract in favor
of indigenous people in Alaska.

Those indigenous people had not

at the time been recognized by the Bureau of Indian Affairs as
being “Indian tribes.”

See Bureau of Indian Affairs, Indian

Tribal Entities That Have a Government-to-Government Relationship
With the United States, 46 Fed. Regis. 35360 (July 8, 1981)
(listing “tribal entities that have a government-to-government
relationship with the United States”).

Pierce nevertheless used

the Morton analysis, applying the rational basis test in
reviewing benefits being provided to “any person recognized as
being an Indian or Alaskan Native by a tribe, the Government, or
39

any state.”

Id. at 1168 n.8.

Notwithstanding the different

histories that “Alaskan Natives” and “American Indians” had had
with the United States, Pierce noted that “Alaskan Natives” “have
been considered to have the same status as other federally
recognized American Indians” and were “under the guardianship of
the federal government and entitled to the benefits of the
special relationship.”

Id. n.10.

Morton, Peabody W. Coal Co., Kahawaiolaa, the
concurrence in Doe, and Pierce all examined whether the United
States intended to provide special treatment to an indigenous
people because of the United States’ unique relationship with
those people.

The record relating to the present motions raises

at least the possibility that land currently in the Chamorro Land
Trust was specifically designated by the United States to be used
to rehabilitate and resettle indigenous individuals from whom the
United States had taken land.
In 1952, the Department of the Interior conditionally
transferred the former Spanish Crown lands to the Government of
Guam.

See ECF No. 40-17, Pages 12 to 26 of 28.

The transfer

expressly stipulated that if the Government
of Guam, without prior approval of the
Secretary of the Interior, sells, leases or
otherwise disposes of any parcels of said
lands for other than (1) the purposes of the
Guam rehabilitation and resettlement program
in accordance with section 40 of Public Law
33 of the First Guam Congress, and (2) the
homestead program in accordance with Article
8 of Public Law 33, title to such parcel or
40

parcels of land shall automatically revert to
the United States.
ECF No. 40-17, Page 13 of 28.

The transfer restricted the use of

some of the Spanish Crown lands, amounting to about one-fourth of
Guam.

The transfer further stated:
the objectives of the Guam rehabilitation and
resettlement program may best be realized by
placing administrative responsibility for
implementation of this program in the
government of Guam, to be carried out in
accordance with the priorities established in
section 40 of Public Law 33 of the First Guam
Congress.

ECF No. 40-17, Page 7 of 28.
In the cover letter sent by the Secretary of the
Interior to the Governor of Guam that accompanied the copy of the
land transfer, the Secretary reiterated:
By virtue of this conveyance the Government
of Guam obtains a fee simple determinable
title to the lands so transferred. The
Government of Guam may, without the approval
of the Secretary of the Interior, sell, lease
or otherwise dispose of any of these lands
for (1) rehabilitation and resettlement
purposes in accordance with section 40 of
Public Law 33 of the First Guam Congress, and
(2) for homestead purposes in accordance with
Article 8 of Public Law 33. . . . Under the
terms of the conveyance, however, the sale,
lease or disposal of these lands for other
than homestead or rehabilitation and
resettlement purposes would automatically
cause a reversion to the United States of
title to any parcel or parcels of land so
disposed of unless prior approval of the
Secretary had been obtained.

41

Letter from Oscar L. Chapman to Gov. Carlton Skinner (Feb. 26,
1952), ECF No. 40-17, Page 5 of 28.
Section 40 of Public Law 33 requires Guam, “in
considering and acting upon applications to lease or buy
Government real property for residential or agricultural
purposes,” to give the following

priorities:

First, persons who have had all of their
land acquired by the United States, the Naval
Government of Guam, or the Government of
Guam, and who have owned no other land since
January l, 1946;
Second, persons who have had a
substantial portion of their land acquired by
the United States, the Naval Government of
Guam, or the Government of Guam, since July
l, 1944, the remaining portion whose land is
not adequate or sufficient for reasonable
agricultural or residential purposes.
http://www.guamlegislature.com/Public_Laws_1st/PL01-033.pdf.
To the extent Spanish Crown lands are included in the
Chamorro Land Trust, this court has before it the issue of
whether the United States has authorized Guam to lease or sell
that land to people who had had land taken from them by the
United States.

Viewed in the light most favorable to Guam for

purposes of the United States’ Motion for Partial Judgment on the
Pleadings, the United States might be said to have taken land
from the “native Chamorro” people and then charged Guam with
returning it in the face of scant or nonexistent land ownership
records.

42

While the Chamorro Land Trust Act may not be a perfect
means of returning lands to people who had land taken from them,
the lack of records may make the Chamorro Land Trust Act a
reasonable means of returning land.

This court is not here

actually making that determination.

This court is only saying

that it cannot enter judgment for the United States as a matter
of law on the limited record before the court.

Certainly this

court cannot say whether the Chamorro Land Trust Commission is
actually returning land to the very people from whom land was
taken.

While the United States points out that the Chamorro Land

Trust Act does not ask potential beneficiaries whether they or
someone in their family had land taken from them by the United
States, the current process may well be an effective way of
returning land, as required by the United States in the Land
Transfer Act.
If Guam was required by the United States to seek to
correct an injustice caused by the United States’ taking of land
from the indigenous people of Guam, the United States might at
least arguably have recognized “native Chamorros” for special
treatment.

See Kahawaiolaa, 386 F.3d at 1273 (“Federal

recognition may arise from treaty, statute, executive or
administrative order, or from a course of dealing with the tribe
as a political entity.” (quotation marks and citation omitted)).
The Chamorro Land Trust Act may be implementing the intent of the

43

1945 Land Transfer Act, which authorized the federal government
to transfer land for resettlement purposes, as well as the
Organic Act of Guam, which expressed a desire to return to the
people of Guam land that was taken.

The reasoning of Morton,

Peabody W. Coal Co., Kahawaiolaa, the concurrence in Doe, and
Pierce may allow the conclusion that, in directing Guam to take
action to aid people from whom the United States took land (the
“native Chamorros”), the United States may have intended that
Guam give special treatment to people within a political rather
than a racial classification.
This court cannot tell from the record whether and to
what extent the Chamorro Land Trust consists of Spanish Crown
Lands that the United States directed Guam to administer for the
benefit of people who had had their land taken by the United
States.

It may well be that there is land in the Chamorro Land

Trust not covered by such a direction from the United States, but
this court cannot discern that on the present record.

Even

without the other issues already raised in the present order,
that issue alone precludes judgment for the United States at this
time.
The other cases relied on by the United States are not
persuasive.

For example, the 1999 decision in Government of Guam

v. 6,390.56 Square Meters is not conclusive of whether “native
Chamorro” as defined in the Chamorro Land Trust Act is a racial

44

or political classification.

That case examined whether land

should be part of the Chamorro Land Trust or whether the Guam
legislature was allowed to remove land from the trust and give it
to a private landowner as part of a land exchange.
34-5, page 12 of 17.

See ECF No.

Along the way, the court discussed whether

the Chamorro Land Trust Act was a legitimate exercise of a public
purpose:
The intent of the Guam Legislature in passing
the [Chamorro Land Trust Act] in 1973 was
abundantly clear: “[t]he Government of Guam
recognizes its special obligation to
descendants of those persons who enjoyed
peaceful ownership of their island lands
prior to the catastrophic entry of the
Federal presence with its confiscatory
appetite for our land.” Guam Legislature
Report of the Committee on Resources,
Development and Agriculture.
Id., Page 14 of 17.
The 1999 ruling questioned whether the Chamorro Land
Trust Act was a legitimate exercise of a public purpose because,
that ruling opined, it created a class based on race or
ethnicity.

The court ultimately rejected Guam’s contention that

it was acting as a trustee with respect to the Chamorro Land
Trust Act.

Id., Page 15 of 18.

That rejection was founded on

Government of Guam ex rel. Guam Economic Development Authority,
179 F.3d 630, in which the district court said that “the Ninth
Circuit has clearly ruled that the Government of Guam is not the
proper custodian or trustee for indigenous lands.”

45

ECF No. 34-5,

page 16 of 17.

It is not clear to the present judge that the

Ninth Circuit’s statement is controlling in the present case.

As

noted earlier, the Ninth Circuit made that statement while
discussing aboriginal land rights.

The land in issue here may or

may not rely on aboriginal title, but the actual focus is on the
taking of land during World War II, rather than on aboriginal
title.
In Government of Guam ex rel. Guam Economic Development
Authority, the Ninth Circuit addressed Guam’s argument that the
United States was required to transfer 24,000 acres of land to
Guam that the United States no longer needed.

Guam argued that

Section 28(b) of the Organic Act of Guam, codified as 48 U.S.C.
§ 1421f(b), imposed an ongoing requirement on the United States
to transfer property to Guam whether the United States no longer
needed it.

179 F.3d at 633.

The Ninth Circuit rejected that

argument, determining that the plain meaning of the provision was
that the United States was making a one-time grant of property.
Id. at 633-35.
Guam also argued that it should be allowed to control
some of the land at issue under the doctrine of “aboriginal
title,” which refers to the right of original inhabitants to use
and occupy their aboriginal territory.

Id. at 640.

Noting that

Guam was not a tribe and that no tribal member was a party, the
Ninth Circuit concluded that Guam had no “aboriginal right to use

46

or occupy tribal land.”

Id.

The Ninth Circuit then rejected

Guam’s argument that it was a trustee with respect to aboriginal
land rights, concluding that the Organic Act of Guam did not
delegate such authority to Guam, instead retaining such authority
for the federal government.

Id.

The heart of the decision in

Government of Guam ex rel. Guam Economic Development Authority
was the conclusion that the Organic Act had not delegated to Guam
any trust authority over lands that had not been transferred to
Guam.

That case did not address whether such trust authority was

delegated to Guam with respect to land that had been transferred
to it, as in this case.

See id., 179 F.3d at 640 (“Congress can

delegate its authority over aboriginal land rights.”).

Nor did

that case address Guam’s duties to administer transferred land
for resettlement purposes.

That case instead focused on Guam’s

claim of entitlement to have land transferred to Guam.
Finally, this court is unpersuaded by the United
States’ argument that Guam is estopped from disputing that the
Chamorro Land Trust Act creates a racial classification.

It is

true that Guam at one point did refer to the Chamorro Land Trust
Act as creating a racial classification.

In Santos v. Ada,

SP0083-92 (1993), petitioners sought to force the Governor of
Guam to implement the Chamorro Land Trust Act, which had been
passed but not implemented for decades.

The Governor of Guam

opposed, arguing that Chamorros did not qualify as an Indian

47

tribe for purposes of the Morton analysis and were therefore not
a political group.

See ECF No. 34-4, Pages 12 and 19 of 27.

The

Superior Court of the Territory of Guam rejected this argument,
ruling that the Governor of Guam was required to implement the
Chamorro Land Trust Act.

See ECF No. 34-1.

This court does not

hold Guam to a position a former Governor took years ago,
especially given the rejection by a court.
Three factors inform this court’s decision not to apply
the doctrine of judicial estoppel: 1) whether the party’s later
position is clearly inconsistent with its earlier position;
2) whether the party succeeded in persuading a court to accept
that party’s earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the
perception that either the first or the second court was misled;
and 3) whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.

See Kobold v.

Good Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1045 (9th Cir.
2016).
While the Supreme Court has noted that “ordinarily the
doctrine of estoppel or that part of it which precludes
inconsistent positions in judicial proceedings is not applied to
states,” Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 369
(1946), it nevertheless applied the doctrine of judicial estoppel

48

to preclude New Hampshire from taking an inconsistent position
with a position it had successfully taken in an earlier case.
New Hampshire v. Maine, 532 U.S. 742, 756 (2001).

In so ruling,

the Supreme Court recognized that a change in public policy may
make it important to allow a change of positions.

Id.

Having

unsuccessfully argued in the Santos case that the Chamorro Land
Trust Act is race-based, Guam, in changing that position in this
case, will not derive an unfair advantage or create a perception
that either the Santos court or this one is being misled.

This

is simply not a case in which this court will apply an equitable
doctrine to hold Guam to a position it asserted years ago that
was rejected by the court in which Guam made the assertion.

In

so ruling, this court is also recognizing that there may have
been a change in public policy with the different Guam
administrations.
Because the United States has failed to demonstrate
that the Chamorro Land Trust Act is based on an improper race or
national origin classification, as opposed to relying on a
political classification, the United States fails to meet its
burden of demonstrating that it is entitled to judgment as a
matter of law. For that reason, the United States’ Motion for
Partial Judgment on the Pleadings is denied.

This court stresses

that this denial is not intended to indicate that the United
States has failed on the merits of any claim.

49

Rather, this

denial is a ruling that the United States has failed at this
point to make the showing needed for it to prevail.

Whether it

can make such a showing is something this court has no way of
knowing at this point.
B.

This Court Grants Guam’s Motion for Judgment on
the Pleadings in Part and Denies it in Part.

Guam moves for judgment on the pleadings with respect
to the remedies awardable against it if it is determined to have
violated the Fair Housing Act.

Under 42 U.S.C. § 3614(d)(1),

when the Attorney General brings an action with respect to
alleged Fair Housing Act violations, courts may award declaratory
and injunctive relief, monetary damages, and civil penalties, as
well as such other relief as the court deems appropriate.

This

court rules that money damages are not available in this case,
but in all other respects Guam’s motion is denied.
In its Motion for Judgment on the Pleadings, Guam
asserts that it has Eleventh Amendment immunity with respect to
the Fair Housing Act claims.

See ECF No. 35.

The court rejects

Guam’s Eleventh Amendment immunity assertion because actions by
the United States against a state (or in this case, a territory)
in federal court are not barred by the Eleventh Amendment.

See

United States v. Mississippi, 380 U.S. 128, 140–41 (1965)
(stating that Eleventh Amendment, by its terms, only bars suits
against a state brought by citizens of that state, other states,
or subjects of any foreign state); Townsend v. Univ. of Alaska,
50

543 F.3d 478, 484 n.1 (9th Cir. 2008) (“An action by the United
States against a state in federal court is not barred by the
Eleventh Amendment.”); Demery v. Kupperman, 735 F.2d 1139, 1146
n.3 (9th Cir. 1984) (“The eleventh amendment does not bar suits
against a state brought by the United States”); see also United
States v. City of Parma, Ohio, 661 F.2d 562, 572 (6th Cir. 1981)
(stating in dicta that it was the intent of Congress to provide
for Fair Housing Act actions against states).
For the same reason, Guam’s reliance on Will v.
Michigan Department of State Police, 491 U.S. 58 (1989), for the
proposition that it is not a “person” for purposes of the Fair
Housing Act is misplaced.

Will held that, while a state official

is literally a person, a suit against a state official acting in
his or her official capacity is a suit against the official’s
office and is the same as a suit against a state.

Will therefore

held “that neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983.”

Id. at 71.

Will declined to read 42 U.S.C. § 1983 in a manner that would
disregard the states’ Eleventh Amendment immunity.

Id. at 66-67.

Because Eleventh Amendment immunity is not applicable in the
present case, Guam’s reliance on Will is unpersuasive.
Accordingly, neither Guam nor its agencies or officers have
Eleventh Amendment immunity with respect to the Fair Housing Act
claims asserted by the United States.
51

As this case has progressed, Guam has clarified its
position with respect to available remedies.

Although its

original moving papers appeared to assert a broad challenge to
any form of relief, in the Reply memorandum it filed in support
of its motion, Guam expressly narrowed that challenge to monetary
relief and civil penalties.

Guam now concedes that the United

States may seek declaratory and injunctive relief against Guam
for any violation of the Fair Housing Act that the United States
may establish.

See ECF No. 44, Page 2 of 10 (“The Government of

Guam acknowledges there is an independent basis outside the Fair
Housing Act (FHA) for the United States to bring actions for
declaratory and injunctive relief against a state or a
territory.”).
In conceding that declaratory and injunctive relief may
be awarded in this action, Guam says that must be pursuant to the
Declaratory Judgment Act.

See ECF No. 44, Page 2 of 10.

Other

courts have seen no need to resort to the Declaratory Judgment
Act in awarding declaratory and/or injunctive relief in Fair
Housing Act cases brought by the Attorney General against state
entities.

See United States v. Univ. of Neb. at Kearney, 940 F.

Supp. 2d 974 (D. Neb. 2013) (determining that a state
university’s violation of the Fair Housing Act by refusing to
allow a therapy dog to live with a student justified a Consent
Order enjoining Fair Housing Act violations, 4:11-CV-3209, ECF

52

No. 290 (Sept. 4, 2015)); United States v. Wis., 395 F. Supp. 732
(W.D. Wis. 1975) (finding a Fair Housing Act violation in a case
seeking declaratory and injunctive relief directly under that
act).
The gist of Guam’s remaining argument is that relief
other than declaratory and injunctive relief is not awardable
because Guam is not a “person” for purposes of § 3614(a).

This

court is not persuaded by Guam’s “person” argument with respect
to § 3614(a).
There is no question that the United States Attorney
General is authorized to bring this action for alleged violations
of the Fair Housing Act.

Section 3614(a) states:

Whenever the Attorney General has reasonable
cause to believe [1] that any person or group
of persons is engaged in a pattern or
practice of resistance to the full enjoyment
of any of the rights granted by this
subchapter, or [2] that any group of persons
has been denied any of the rights granted by
this subchapter and such denial raises an
issue of general public importance, the
Attorney General may commence a civil action
in any appropriate United States district
court.
42 U.S.C. § 3614(a).
Guam seeks dismissal of any claim for a monetary award
or civil penalty on the ground that § 3614 applies only to “any
person or group of persons” resisting protection of Fair Housing
Act rights, and that Guam is not a “person.”

But § 3614(a) is

not limited to suits when “any person or group of persons is
53

engaged in a pattern or practice of resistance” to Fair Housing
Act rights.

Instead, that section also allows the Attorney

General to bring a civil action in this court whenever “any group
of persons has been denied any of the rights granted by this
subchapter and such denial raises an issue of general public
importance.”

The requirement that an alleged offender be a

“person” appears only in the “pattern and practice” portion of
§ 3614(a), while the “general public importance” portion of
§ 3614(a) focuses on alleged victims, rather than referring to
the status of an alleged perpetrator.
The United States may satisfy either the “pattern and
practice” or “general public importance” clause in proceeding
with a Fair Housing Act claim.

See United States v. Hunter, 459

F.2d 205, 217 (4th Cir. 1972) (“The language of the section shows
that Congress did not wish the Attorney General to enforce
private civil rights created by the Act unless a specific
violation has a measurable public impact in that it is either one
of a pattern or practice of resistance or a case raising an issue
of general public importance.

If neither prerequisite for relief

existed, a district court would be required to refuse the relief
sought by the Attorney General.”).
The United States’ claim that the Chamorro Land Trust
Act involves impermissible race and/or national origin

54

discrimination easily falls within the “general public
importance” clause, as the United States contends that non-native
Chamorros are being denied rights guaranteed by the Fair Housing
Act.

There being no contention that the relief would be

different depending on whether the United States proceeded under
the “pattern and practice” clause or under the “general public
importance” clause, this court need not here determine whether
Guam is a “person” for purposes of the “pattern and practice”
clause of § 3614(a).
It is not clear whether, in addition to making its
“person” argument with respect to § 3614(a), Guam is also arguing
that it is not a “person under § 3614(d)(1), which permits an
award of “preventive relief” against “the person responsible for
the violation” of § 3614(a).

Even if the Territory of Guam

itself were deemed not to be a “person” under § 3614(d), there is
no question that Defendants Chamorro Land Trust Corporation and
Administrative Director of the Chamorro Land Trust Corporation
fall within the definition of “person” under the Fair Housing
Act, which defines “person” as “includ[ing] one or more
individuals, corporations, partnerships, associations, labor
organizations, legal representatives, mutual companies,
joint-stock companies, trusts, unincorporated organizations,
trustees, trustees in cases under Title 11, receivers, and
fiduciaries.”

42 U.S.C. § 3602(d).

55

Accordingly, this court

could enjoin the actions of those Defendants under
§ 3614(d)(1)(A) even if Guam were not a “person.”
This court rules that the United States may not pursue
money damages in this case.

Under 42 U.S.C. § 3614(d)(1), a

court in a civil action brought under § 3614(a):
(A) may award such preventive relief,
including a permanent or temporary
injunction, restraining order, or other order
against the person responsible for a
violation of this subchapter as is necessary
to assure the full enjoyment of the rights
granted by this subchapter;
(B) may award such other relief as the court
deems appropriate, including monetary damages
to persons aggrieved; and
(C) may, to vindicate the public interest,
assess a civil penalty against the
respondent–
(i) in an amount not exceeding $50,000,
for a first violation; and
(ii) in an amount not exceeding
$100,000, for any subsequent violation.
42 U.S.C. § 3614(d)(1).
The Fair Housing Act’s use of the word “including” in
“such preventive relief, including a permanent or temporary
injunction, restraining order, or other order against the person
responsible for a violation” of the Fair Housing indicates that
this court is not limited to awarding the enumerated types of
relief, which include declaratory relief. 42 U.S.C.

56

§ 3614(d)(1)(A).

That does not necessarily mean, however, that

money damages are available against Guam.
Section 3614(d)(1)(B) allows this court to “award such
other relief as the court deems appropriate, including monetary
damages to persons aggrieved.”

While the Ninth Circuit has held

that compensatory damages must be awarded under § 3614(d)(1)(B)
if actual damages are proven, it has not done so in a case
against a state or territory.

See United States v. City of

Hayward, 36 F.3d 832, 839 (9th Cir. 1994).

This court therefore

examines whether monetary damages may be awarded under the
circumstances presented by this case against Guam.
In Hayward, which was a case brought by the United
States against a municipality, the Ninth Circuit noted that
“[a]llowing the court to award monetary relief to persons
aggrieved avoids later duplicative litigation as such persons
bring actions to vindicate their rights.”

36 F.3d at 840

(quoting House Rep. No. 711, 100th Cong., 2d Sess., 40 (1988)),
reprinted in, 1988 U.S.C.C.A.N. 2201).

The House Report quoted

by the Ninth Circuit states that “Section [3614(d)] provides the
types of relief a court may award in a civil action under this
Section.”

Id.

In other words, Congress intended that a court

prevent duplicative litigation by awarding in a suit brought by
the United States the same relief awardable had the aggrieved
persons brought a Fair Housing Act claim themselves.

57

Here, had aggrieved persons asserted Fair Housing Act
claims directly against Guam under § 3613 in this court, Guam
would have had Eleventh Amendment immunity with respect to such
claims.

See McCardell v. U.S. Dep't of Hous. & Urban Dev., 794

F.3d 510, 521 (5th Cir. 2015) (state defendants had Eleventh
Amendment immunity with respect to Fair Housing Act claims
brought by private party); Brooks v. Oakland Univ., 2013 WL
6191051, at *2 (E.D. Mich. Nov. 26, 2013) (holding that the
Eleventh Amendment barred Fair Housing Act claims asserted by a
private party against a state university); Kalai v. Hawaii, 2008
WL 3874616, at *3 (D. Haw. Aug. 20, 2008) (“Plaintiff’s FHA
claims seeking damages against Defendant [State of Hawaii] are
barred by the Eleventh Amendment.”); Kuchmas v. Towson Univ.,
2007 WL 2694186, at *9 (D. Md. Sept. 10, 2007) (“this Court holds
that the Eleventh Amendment bars private suits [under § 3613]
against Towson University under the Fair Housing Act”); Gregory
v. S.C. Dep't of Transp., 289 F. Supp. 2d 721, 724-25 (D.S.C.
2003) (holding that the Eleventh Amendment barred private Fair
Housing Act claims against South Carolina Department of
Transportation).
The United States stated at the hearing held in this
case on November 29, 2018, that any monetary award would not go
to the United States Treasury but instead to individuals
aggrieved by Guam’s allegedly discriminatory actions.

58

The United

States posited a trial at which each individual’s damages would
be set.

But while the Eleventh Amendment is generally

inapplicable to claims brought by the United States, this court
is hard-pressed to see why the Eleventh Amendment is similarly
inapplicable to claims brought by the United States on behalf of
individuals who could not sue directly for money damages.
If the purpose of allowing this court to award damages
to “aggrieved persons” in § 3614 cases brought by the United
States is to prevent duplicative litigation, that purpose is not
served by allowing the United States to seek damages on behalf of
persons who could not themselves be awarded damages in direct
Fair Housing Act claims under § 3613 given Guam’s Eleventh
Amendment immunity.
The United States does not bring this lawsuit on behalf
of persons who lack a private right of action.

Private parties

are expressly allowed to sue on their own behalf under § 3613.
Allowing them to recover money damages in the lawsuit brought by
the United States would not prevent duplicative litigation; it
would instead give them a windfall they could not achieve if
suing on their own behalf.

Monetary awards to them in this

action by the United States would evade the Eleventh Amendment
immunity Guam would enjoy with respect to direct claims by
private parties.

Section 3614 was intended to provide the same

relief available in other civil actions, not greater relief.

59

See

House Rep. No. 711, 100th Cong., 2d Sess., 40 (1988)), reprinted
in, 1988 U.S.C.C.A.N. 2201.
To the extent Guam argues that this court may not award
civil penalties against it because it is not a “person,” Guam
fails to meet its burden of persuasion.

Guam points to no

provision restricting civil penalties to a “person.”

Instead,

§ 3614(d)(1)(B) provides for civil penalties against the
“respondent.”

The court is not here deciding that civil

penalties are indeed available in this action, only that Guam has
not met its burden on the present motion of showing that such
civil penalties are unavailable.
If the issue of civil penalties is the subject of a
future motion, the parties may want to address any conceptual
similarities or differences between money damages, which this
court is barring, and civil penalties.

In that regard, the

purpose of civil penalties may be worth exploring, as well as
whether such penalties would play any role in enforcing any
possible injunction that might be ordered.

For example, if this

court ordered an injunction, would enforcement of that injunction
be limited to civil contempt or withholding of certain federal
funding, or would monetary penalties be possible?
In any event, at this point, Guam’s Motion for Judgment
on the Pleadings is granted with respect to a bar on monetary
damages, but denied in all other respects.

60

Declaratory and

injunctive relief are available remedies assuming Guam is shown
to have violated the Fair Housing Act, and Guam’s request for a
ruling that civil penalties are barred is denied without
prejudice to this court’s revisiting that issue based on fuller
legal analysis than has been provided so far.
IV.

CONCLUSION.
The court denies the United States’ motion seeking

judgment on the pleadings.

The court also denies Guam’s motion

for judgment on the pleadings except with respect to the issue of
monetary damages.

This court rules that monetary damages are not

available against Guam in this case.
IT IS SO ORDERED.
DATED: December 21, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

United States of America v. Government of Guam, et al., Civ. No. 17-00113 ;
ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS; ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS AND JOINDER THEREIN

61