United States of America v. Government of Guam et al

Filing 72

Order DENYING United States' 63 Motion to Revise Order Granting in Part Defendants' Motion for Judgment on the Pleadings. Signed by Senior Judge Susan Oki Mollway on 4/25/2019. (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 UNITED
STATES OF AMERICA’S MOTION TO
REVISE ORDER GRANTING IN PART
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS

ORDER DENYING PLAINTIFF UNITED STATES OF AMERICA’S
MOTION TO REVISE ORDER GRANTING IN PART DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS
I.

INTRODUCTION.
Plaintiff United States of America seeks

reconsideration of this court’s ruling that it may not pursue
money damages from Guam pursuant to 42 U.S.C. § 3614 of the Fair
Housing Act.
II.

The reconsideration motion is denied.

STANDARD OF REVIEW.
Unless a ruling has been certified as final under Rule

54(b) of the Federal Rules of Civil Procedure,
any order or other decision, however
designated, that adjudicates fewer than all
the claims or the rights and liabilities of
fewer than all the parties does not end the
action as to any of the claims or parties and
may be revised at any time before the entry
of a judgment adjudicating all the claims and
all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b).

A motion for reconsideration is not freely granted.
Reconsideration may occur if
the court has patently misunderstood a party,
or has made a decision outside the
adversarial issues presented to the court by
the parties, or has made an error not of
reasoning but of apprehension. A further
basis for a motion to reconsider would be a
controlling or significant change in the law
or facts since the submission of the issue to
the court. Such problems rarely arise and
the motion to reconsider should be equally
rare. A motion for reconsideration should
not be used to ask the court to rethink what
the court had already thought through-rightly or wrongly.
Agravante v. Japan Airlines Int'l Co., 2007 WL 2175683, at *1–2
(D. Guam July 27, 2007) (quotation marks and citations omitted).
III.

ANALYSIS.
In its order filed on December 21, 2018, this court

cited the Eleventh Amendment in concluding that, under the Fair
Housing Act, the United States may not recover money damages from
Guam on behalf of individuals allegedly injured by Guam’s
preferential treatment of native Chamorros.

The United States

now argues that, even if the Eleventh Amendment protects Guam
from money damage claims filed directly by individuals, the
United States, under Board of Trustees of the University of
Alabama v. Garrett, 531 U.S. 356 (2001), may seek damages on
their behalf.

This argument is grounded in an analogy to the

remedies available for employment violations of Title I of the
Americans with Disabilities Act (“ADA”).
2

The plain language of

the Fair Housing Act calls for a different conclusion in the
present case.
In Garrett, the Supreme Court examined whether Congress
had validly abrogated the states’ Eleventh Amendment immunity
with respect to claims asserted under Title I of the ADA.
Ultimately, the Supreme Court ruled that Congress had exceeded
its powers under section 5 of the Fourteenth Amendment when it
abrogated that immunity.

The Court said that, “to authorize

private individuals to recover money damages against the States,
there must be a pattern of discrimination by the States which
violates the Fourteenth Amendment, and the remedy imposed by
Congress must be congruent and proportional to the targeted
violation.”

531 U.S. at 967-68.

Because those requirements were

not met, the Court held that, despite the attempt by Congress to
make states liable for violations of Title I of the ADA, states
were protected by the Eleventh Amendment immunity from such
claims by individuals.
Footnote 9 of the Garrett decision noted that Title I
of the ADA did set forth standards applicable to states that
could be enforced by the United States (as opposed to
individuals) in actions seeking money damages.

Id. at 968 n.9.

Seizing on that footnote, the United States argues in the present
case that it should similarly be allowed to seek money damages

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from Guam in this Fair Housing Act case.

This court is

unpersuaded.
Title I of the ADA governs disability discrimination in
employment.

For violations of Title I of the ADA, courts look to

Title VII for remedies:
The powers, remedies, and procedures set
forth in sections 2000e-4, 2000e-5, 2000e-6,
2000e-8, and 2000e-9 of this title shall be
the powers, remedies, and procedures this
subchapter provides to the Commission, to the
Attorney General, or to any person alleging
discrimination on the basis of disability in
violation of any provision of this chapter,
or regulations promulgated under section
12116 of this title, concerning employment.
42 U.S.C.A. § 12117.
In relevant part, 42 U.S.C §§ 2000e-5(f)(1) and (2)
allow the Attorney General to bring Title I ADA civil actions on
behalf of the United States against governments, government
agencies, and political subdivisions.

Section 2000e-5(f)(1)

allows aggrieved persons to intervene in such suits.

In certain

cases brought under § 2000e-5, courts may award compensatory
damages to a “complaining party,” which includes the Attorney
General.

See 42 U.S.C. § 1981a(a)(1) and (2); 42 U.S.C.

§ 1981a(d).

But those damages are capped.

§ 1981a(b)(3).

See 42 U.S.C.

For example, respondents having more than 500

employees in a twenty-week period during the current or preceding
calendar year have a maximum liability of $300,000 for such
compensatory awards with respect to each complaining party.
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See

42 U.S.C. § 1981a(b)(3)(D).

While Congress was unsuccessful in

its attempt to abrogate the states’ Eleventh Amendment immunity
with respect to Title I ADA claims by individuals, states are
liable when the Attorney General seeks damages from states under
Title I of the ADA, but only up to the statutory cap on damages.
The reference in footnote 9 in Garrett to the availability of
damages should be read in the context of that cap.
This court notes that the parties have not challenged
the concept that the Territory of Guam has immunity protections
equivalent to those of a state.

This court’s order of December

21, 2018, stated that Guam has Eleventh Amendment immunity with
respect to FHA claims asserted under 42 U.S.C. § 3613.

This

court now modifies that statement in a manner that does not
affect the court’s ultimate ruling.

Guam’s immunity is more

accurately viewed as that accorded a sovereign that is not a
state covered by the Eleventh Amendment.

See Sakamoto v. Duty

Free Shoppers, Ltd., 613 F. Supp. 381, 386 (D. Guam 1983) (“the
Eleventh Amendment to the Constitution of the United States does
not encompass unincorporated territories”).

See also Marx v.

Gov't of Guam, 866 F.2d 294, 298 (9th Cir. 1989) (“the government
of Guam has inherent sovereign immunity”); Capulong v. Dep't of
Educ. of Guam, 2011 WL 1134986, at *1 (D. Guam Mar. 24, 2011)
(“The Organic Act of Guam invested the Government of Guam with
sovereign immunity.”).

Whenever in its prior order this court
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said that Guam was protected by the Eleventh Amendment, the order
is amended to refer to Guam’s sovereign immunity.

This

distinction leaves intact this court’s conclusion that money
damages for individuals’ alleged injuries are barred in this
case, even if sought by the United States.
That Guam’s immunity as a sovereign bars money damage
claims brought by individuals under § 3613 follows from the Ninth
Circuit’s decision in Marx.

The Ninth Circuit noted, “The

Supreme Court and this court have recognized that territorial
governments have a form of inherent or common law sovereign
immunity.”

866 F.2d at 297.

Under that immunity, “[a] sovereign

is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that
there can be no legal right as against the authority that makes
the law on which the right depends.”
205 U.S. 349, 353 (1907).

Kawananakoa v. Polyblank,

See also Porto Rico v. Rosaly y

Castillo, 227 U.S. 270, 273 (1913); Crain v. Guam, 195 F.2d 414,
416 (9th Cir. 1052).

Thus, Guam’s sovereign immunity protects it

from suit by individuals in much the same way as the Eleventh
Amendment protects states.

In that respect, Guam has protections

far beyond those a municipality might claim.
While 42 U.S.C. § 3614(d)(1)(b) provides that a court
in a civil action brought by the Attorney General under § 3614(a)
“may award such other relief as the court deems appropriate,

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including monetary damages to persons aggrieved,” the Fair
Housing Act, unlike Title I of the ADA, does not say that
monetary damages may be awarded against a sovereign for injuries
to individuals who may not sue on their own behalf.

See

McCardell v. U.S. Dep't of Hous. & Urban Dev., 794 F.3d 510, 522
(5th Cir. 2015) (stating that the Fair Housing Act does not make
“unmistakably clear” that Congress intended to abrogate the
states’ Eleventh Amendment immunity); Mary’s House, Inc. v. North
Carolina, 976 F. Supp. 2d 691, 697 (M.D.N.C. 2013) (stating that
the “FHA does not abrogate states’ sovereign immunity under the
Eleventh Amendment”); Kalai v. Hawaii, 2008 WL 3874616, at *2 (D.
Haw. Aug. 20, 2008) (“FHA contains no clear congressional
statement unequivocally expressing an intent to abrogate states’
sovereign immunity”).

The United States is authorized by § 3614

to seek money damages on behalf of “persons aggrieved” from
cities and other actors not protected by the Eleventh Amendment
or other sovereign immunity, but the Fair Housing Act does not
provide the kind of authority against states found in Title I of
the ADA.
Aggrieved persons may intervene in a Fair Housing Act
case, but the relief available “to any such intervening party” is
only what is “authorized to be granted to a plaintiff in a civil
action under section 3613 of this title.”

42 U.S.C. § 3614(e).

Intervention against a city might afford an aggrieved person

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money damages, but an aggrieved individual’s Fair Housing Act
money damages claim lodged directly against Guam under § 3613
would fail in light of Guam’s immunity with respect to such
claims.

See generally McCardell, 794 F.3d at 521 (recognizing

that 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) (relying on the Eleventh Amendment in barring 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).

Accord

Marx, 866 F.2d at 298 (discussing Guam’s sovereign immunity);
Capulong, 2011 WL 1134986, at *1 (same).

In short, an aggrieved

person under the Fair Housing Act cannot directly or through
intervention be awarded money damages against a state or, in this
case, Guam.
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In analogizing the Fair Housing Act to Title I of the
ADA, the United States overlooks the absence in the Fair Housing
Act of any indication that Congress intended to allow the United
States to seek compensatory damages from states the way it may
under Title I of the ADA.

Nor does the Fair Housing Act plainly

require such damages, as the United States contends on page 6 of
its motion.

Instead, 42 U.S.C. § 3614(d)(1)(b) allows this court

to “award such . . . relief as the court deems appropriate,
including monetary damages to persons aggrieved[,]” for Fair
Housing Act violations established by the Attorney General.

The

Fair Housing Act is silent with respect to whether such damages
may be awarded against a state or territory, and the word
“including” refers to relief that is “appropriate.”

This

language does not give rise to a right by the United States to
compensatory damages against Guam on behalf of injured
individuals.
This court, of course, recognizes that the Fair Housing
Act and Title I of the ADA are both civil rights laws enacted to
end discrimination.
broadly.

Standing to assert civil rights is construed

See Trafficante v. Metropolitan Life Insurance Company,

409 U.S. 205, 209 (1972).

The same legal framework applies to

both Fair Housing Act and ADA claims.

See Gamble v. City of

Escondido, 104 F.3d 300, 304 (9th Cir. 1997).

However, these

principles do not require a court to construe the statutory

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remedy provisions identically or to ignore obvious statutory
differences.
This is not a situation in which similarly worded
statutes should be given the same meaning.

Smith v. City of

Jackson, 544 U.S. 228, 233 (2005) (“[W]hen Congress uses the same
language in two statutes having similar purposes, particularly
when one is enacted shortly after the other, it is appropriate to
presume that Congress intended that text to have the same meaning
in both statutes.”) (plurality opinion); see also United States
v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en banc)
(“Moreover, courts generally interpret similar language in
different statutes in a like manner when the two statutes address
a similar subject matter.”).

Congress certainly knew how to

explicitly state that the United States could recover
compensatory damages from states in Fair Housing Act claims
brought on behalf of individuals.

Congress did not do so.

Congress chose to draft the Fair Housing Act and Title I of the
ADA differently.

Accordingly, the court is not persuaded that

Garrett’s footnote applies here.
In footnote 2 on page 3 of its brief of February 15,
2019, the United States tries to bolster its ADA analogy by
pointing to the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”) and the Age Discrimination in Employment
Act (“ADEA”) as also authorizing damage actions by the United

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States on behalf of private persons.

But USERRA, unlike the Fair

Housing Act, expressly provides for such damages.

See 38 U.S.C.

§ 4323(d)(3) (citing USERRA on “Enforcement of rights with
respect to a State or private employer” and stating that “A State
shall be subject to the same remedies, including prejudgment
interest, as may be imposed upon any private employer under this
section.”).

The United States’ citation of EEOC v. Board of

Regents Of University Of Wisconsin System, 288 F.3d 296, 299-301
(7th Cir. 2002) (ADEA case), is no more persuasive.

That case

relied on EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), to
conclude that a state’s immunity from private damage suits does
not shield it from suit by the EEOC.

But Waffle House arose in

the ADA context and therefore, as discussed earlier, concerned a
framework distinguishable from the Fair Housing Act.
This court stresses that it has never ruled that Guam
is immune with respect to money damage claims brought by the
United States for injury to the United States itself.

This court

is instead concerned about whether the United States may sue on
behalf of individuals who may not recover damages directly from
states or territories because of immunity protections.

As the

United States posits, suits by the federal Government are
fundamentally different from private causes of action because the
United States has an interest in enforcing federal law.

But that

fundamental difference makes sense when the United States is

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suing for itself.

In the Fair Housing Act, Congress has not

clearly authorized a distinguishable right on the part of the
federal government to seek compensatory damages on behalf of
individuals in the face of Eleventh Amendment or common law
sovereign immunity.
In the usual case, the general rule is that, “absent
clear direction to the contrary by Congress, the federal courts
have the power to award any appropriate relief in a cognizable
cause of action brought pursuant to a federal statute.”

Franklin

v. Gwinnett County Public Schools, 503 U.S. 60, 70-71 (1992).
But the Ninth Circuit has clarified that, “[a]t the same time, it
is critical that when deciding which remedies are appropriate in
a given situation, we attempt to infer how Congress would have
addressed the issue if it had done so at the time the law was
passed.”

Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 813

(9th Cir. 2007) (quotation marks, alterations, and citation
omitted).
United States v. City of Hayward, 36 F.3d 832 (9th Cir.
1994), provides guidance here.

In that case, the United States

sought declaratory, injunctive, and monetary relief for a Fair
Housing Act violation by a municipality.

The district court

awarded only the requested injunction, reasoning that monetary
damages were discretionary.

Id. at 838-39.

The Ninth Circuit

reversed, ruling that the United States should have been given

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the opportunity to prove actual damages because compensatory
damages under the Fair Housing Act are not discretionary whenever
a plaintiff proves actual damages.

Id. at 839.

The Ninth

Circuit looked to the legislative history of the Fair Housing
Act’s remedy provision, noting 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).

While the cited House Report also states “that relief may

be awarded to all persons aggrieved,” it does not describe what
relief should be awarded, other than relief designed to prevent
duplicative actions.
actions.

Here, there is no risk of duplicative

The immunity bar for direct claims by aggrieved

individuals against Guam assures the absence of duplicative
cases.

Given this circumstance, it makes no sense to read the

plain language of § 3614 or its legislative history as providing
that the United States, acting on behalf of individuals, may
recover damages from Guam for alleged violations of the Fair
Housing Act.
Particularly helpful to this court in trying to discern
whether Congress intended to allow the kind of damage claim the
United States asserts here against Guam is the Ninth Circuit’s
decision in Kay.

In that case, an amateur radio broadcaster

13

sought compensatory damages from a municipality for alleged
violations of the Telecommunications Act in connection with the
municipality’s denial of a conditional use permit.

The Ninth

Circuit noted that the Telecommunications Act was silent with
respect to congressional intent on the question of compensatory
damages.

Kay, 504 F.3d at 813.

Instead of applying the general

rule allowing such damages as appropriate relief, the Ninth
Circuit posited that Telecommunication Act plaintiffs are usually
large telecommunications companies for whom adverse zoning or
permitting decisions may result in substantial damages against a
municipality.

The Ninth Circuit noted that the “potential for

large damages claims, even if they are not ultimately awarded,
suggests that Congress did not intend to create a damages remedy”
for Telecommunication Act claims.

Id.

The specter in Kay of large damage claims that might
intimidate a municipality into issuing permits is analogous to
the possibility of debilitating damage claims in the present
case.

The United States could conceivably seek compensatory

damages from Guam on behalf of every person who might have wanted
to share in the benefits of the Chamorro Land Trust but was
deemed ineligible.
population of Guam.

Such persons might constitute most of the
Because the Chamorro Land Trust leases land

to eligible persons for $1 per year, damages might amount to
years of rent or mortgage payments made by aggrieved persons,

14

minus $1 per year.

If Congress intended to allow the United

States to potentially bankrupt Guam, surely Congress would have
more clearly indicated that.
This court in no way establishes here a categorical
rule precluding an expressly authorized form of relief.

See

Waffle House, 534 U.S. at 292 (reading the discretionary language
in the ADA discrimination claim under § 1981a(a)(1) as providing
for a trial judge’s discretion to order reinstatement and damages
in an amount warranted by the facts of the case, not for a
categorical rule precluding expressly authorized remedies as
inappropriate in all cases).

Instead, this court is concluding

that the language and history of the Fair Housing Act provide no
congressional signal that the United States may recover
compensatory damages against a state or territory on behalf of
aggrieved persons who could not directly seek those damages.

Any

such award would be a windfall for persons not otherwise able to
recover money damages from Guam; the potential magnitude of such
a large award could fiscally ruin Guam.

What the United States

is doing is arguing for an extension of rights that Congress has
not clearly spoken to.

Under these circumstances, the United

States’ reliance on Waffle House is misplaced.
Nor is the United States’ reliance on United States v.
Tanski, 2007 WL 1017020, at *8 (N.D.N.Y. Mar. 30, 2007),
warranted.

In that case against private wrongdoers, the district

15

court applied the three-year limitation period for compensatory
damages under the Fair Housing Act to claims brought by the
United States, rather than the two-year limitation period that
would have applied had the aggrieved person brought the claim
directly.

The United States argues that this shows that the

United States may recover damages for individuals who may not
recover damages directly.
sovereign immunity.

A limitation period is not the same as

In the present case, individuals acting on

their own behalf could never have recovered damages against Guam.
This court declines to step into the legislative role
urged upon it by the United States.
IV.

CONCLUSION.
The United States’ motion for reconsideration is

denied.
IT IS SO ORDERED.
DATED: April 25, 2019.

/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 UNITED STATES OF AMERICA'S MOTION TO REVISE ORDER
GRANTING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

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