CHOICE, INC., Petitioner
SAMOA GOVERNMENT, OFFICE OF PROCUREMENT AND LOLO M. MOLIGA,
PROCUREMENT OFFICER, AND
REID & CO., INC., Respondents.
Court of American Samoa
power in American Samoa, like the United States, is limited review of presently
pending cases or controversies.
 The Court
cannot hear cases that are moot, or where the issues to be determined are no
longer “live” or the parties lack a legally cognizable interest in the
review of administrative action is limited by the requirement that there be an
actual, live controversy to adjudicate.
exception to mootness doctrine lies where the acts at issue are “capable of
repetition, yet evading review.”
 If the
reviewing court can afford prospective relief, the controversy is not moot.
The “capable of repetition, but evading review” exception to the mootness
doctrine is limited to cases where (1) the challenged action was too short to
be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action again.
 Under the “capable
of repetition, but evading review” exception to the mootness doctrine, there
must be a reasonable expectation that harm will again come to the same
plaintiff, not merely a theoretical possibility of future harm.
reviewing federal agency actions under the Administrative Procedures Act are
limited to compelling agency actions or holding actions unlawful. Courts cannot grant monetary relief.
 In American
Samoa, pecuniary relief is not available in judicial review of administrative
 If a
disappointed bidder wishes for monetary relief, the proper course of action is
not through appellate review of administrative proceedings, but rather through
such means as a trial de novo.
Where respondent had not filed an answer in response to petition for review of
order, such omission did not require court to give judgment in petitioner’s
favor, as rule requiring timely filing of answer imposed no sanction for its
KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,*
Acting Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE,
For Petitioner, Roy J.D. Hall, Jr.
American Samoa Government and
Fiti A. Sunia, Assistant Attorney General
For Respondent G.H.C.
Reid & Co. Inc., Jennifer L. Joneson
bidder, Island’s Choice, Inc. (“ICI”), petitions this court to review an order
of the Administrative Law Judge (“ALJ”) affirming an agency decision to award
the contract for the supply and delivery of milk for the School Lunch Program
(“milk contract”) to co-defendant G.H.C. Reid and Co., Inc. (“Reid”).
and ICI were the two primary bidders who responded to an April 2000 annual
invitation for bids published by the Office of Procurement of the American
Samoa Government (“OP-ASG”). The bidders competed according to who scored the
highest points on an agency-established five-point test, including (“Section
I”) carton, 200 points, (“Section II”) product specifications, 300 points,
(“Section III”) experience and ability to perform, 200 points, (“Section IV”)
sample, 200 points, and (“Section V”) cost, 300 points. The Source Evaluation Board (“SEB”) evaluated
the bidders and awarded points in each category.
selected Reid for the milk contract on May 3, 2000. ICI appealed the agency decision in a timely
and proper manner. Specifically, ICI filed
a notice of dispute with the agency almost immediately, on May 16, 2000. OP-ASG denied the notice of dispute on May
30, 2000. ICI then filed a petition for
review of agency action with the ALJ on June 19, 2000. The ALJ heard arguments between August 23 and
August 30, 2000, on which date Reid was to begin supply and delivery of milk
under the milk contract. The ALJ
rendered his opinion affirming OP-ASG’s award of the milk contract to Reid on
September 15, 2000. ICI then submitted a
motion to reconsider or to have a new trial to the ALJ. This was apparently denied in open session,
and the ALJ published a written order denying the motion on October 12,
2000. Petitioner then followed timely
and proper procedure to appeal the ALJ decision. It submitted a petition for this court’s
review of the ALJ opinion on October 3, 2000.
The transcript of ALJ proceedings was filed in court on November 16,
2000; ICI filed its appeal brief on December 22, 2000; and Reid filed its
appeal brief on January 22, 2001. ICI
then moved to set a date for oral argument on February 7, 2001, which we heard
on May 23, 2001. The milk contract term
ended, and supply ceased, on June 1, 2001.
its petition for appellate review of the ALJ decision, ICI has asked for this
Court to (1) set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to
(2) reverse the order and award the milk contract to ICI, or else grant damages
to ICI for OP-ASG’s failure to properly award the contract.
properly arises for Appellate Court review of the ALJ order under A.S.C.A. §§
4.0604(g) and 4.1041.
It is now summer in
the American Samoa school year, if not in meteorological terms, and the milk
contract has, like the school year, expired with Reid as the purveyor of
milk. There is no contract to set aside
for petitioner, nor pertinent order to reverse.
It thus appears that the issue of the appropriateness and legality of
the 2000-2001 contract award is moot.
Judicial power in American Samoa, like the United States, is limited review of
presently pending cases or controversies.
U.S. Const. art. III; Rev. Const. Am. Samoa art. III, § 1;
A.S.C.A. § 3.0103; Burke v. Barnes, 479 U.S. 361, 363 (1987); Meredith
v. Mola, 4 A.S.R. 773, 776 (Trial Div. 1973) (citing Baker v.
Carr, 397 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486
(1969)). Simply put, we cannot hear
cases that are moot, or where the issues to be determined are no longer “live”
or the parties lack a legally cognizable interest in the outcome. Senate of the Legislature of Am. Samoa v.
Lutali, 26 A.S.R.2d 125, 129 (Trial Div. 1994); Murphy v. Hunt, 455
U.S. 478, 481 (1982) (per curiam); Powell, 395 U.S. at 496.
Judicial review of administrative action is limited by the requirement that
there be an actual, live controversy to adjudicate. Campesinos Unidos v. U.S. Dept. of Labor,
803 F.2d 1063, 1067 (9th Cir. 1986) (citing Iron Arrow Honor Soc’y v.
Heckler, 464 U.S. 67, 72-73 (1983)).
However, courts confronting expired official acts frequently find
exception to mootness where the acts at issue are “capable of repetition, yet
evading review.” S. Pac. Terminal Co.
v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911); see also Charles Alan Wright et al., Federal Practice
and Procedure § 3533.8 (2d ed. 1990).
Moreover, if the reviewing court can afford prospective relief, the
controversy is not moot. Campesinos,
803 F.2d at 1068; Associacao Dos Industriais de Cordoaria v. United
States, 828 F.Supp. 978, 984 (Ct. Int’l Trade 1993).
the issue of to whom to award the milk contract is moot because the school year
has ended, the contract has been fully performed, and the contract term of
August 30, 2000 to June 1, 2001 has expired.
The issue is thus whether or not the procurement acts at issue by OP-ASG
in awarding the milk contract to Reid are “capable of repetition, yet evading
review,” and if they are, whether or not this court can provide prospective
relief to ICI.
of Repetition, Yet Evading Review
Lutali, the only American Samoa case on record to have dealt with the
mootness issue, the Trial Division evaluated the “capable of repetition, yet
evading review” doctrine based on a two-part standard employed by the U.S.
Supreme Court in Murphy, 455 U.S. at 357, which was cited in Weinstein
v. Bradford, 423 U.S. 147 (1975), and which first originated after a
thorough review of the history of the mootness doctrine by that Court in Sosna
v. Iowa, 419 U.S. 393 (1975). The Lutali
Trial Court, however, cited a narrower version of the standard used by the
U.S. Supreme Court. Specifically, in Lutali,
the Court stated that in non-class actions, the “capable of repetition, but
evading review” doctrine is limited to cases where “(1) a defendant
terminates the challenged action before the issue is fully litigated, and
(2) there is a reasonable expectation the plaintiff would be subject to the
same actions in the future.” Lutali,
26 A.S.R.2d at 129-30 (emphasis added).
The exact language used in U.S. Supreme Court cases, however, is: “(1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same complaining party would be
subjected to the same action again.” Murphy,
455 U.S. at 357 (emphasis added); Weinstein, 423 U.S. at 353 (emphasis
Lutali Court thus states a more specific version of the U.S. Supreme
Court language. Where the Supreme Court
requires that, to overcome a finding of mootness, the challenged action be “too
short to be fully litigated,” the Lutali Trial Court stated the first
element as being when “a defendant terminates the challenged action” before it
is fully litigated. The language used by
the Trial Court in Lutali seems a logical, valid and acceptable
interpretive application of the Supreme Court’s language where a defendant
perpetrator terminates a controverted action.
This was appropriate in the Lutali case, where the Fono
sued ASG for implementing ASG employee pay increments without prior authorization.
Once the suit was initiated, however, the Governor decided not to implement the
pay increases, and argued that the case was therefore moot. The Trial Court held that the Governor’s
conduct fell within its articulated exception for mootness.
language used by the Trial Division to state the “capable of repetition, yet
evading review” doctrine, though appropriate for adjudicating specific fact
instances akin to Lutali, is unduly restrictive. The Trial Division did not state how or why
it deviated from the U.S. Supreme Court language, nor did it indicate that it
was doing so. The circumstances where
the Trial Division’s language apply are simply too specific to be generalized.
We expand upon Lutali and adopt the more generally applicable language
employed by the U.S. Supreme Court in Sosna, Murphy, and Weinstein
in evaluating whether or not an action is capable of repetition, yet evading
review. For the mootness inquiry, the
questions before the court are thus: was the challenged action too short to be
fully litigated prior to its cessation or expiration, and is there a reasonable
expectation that the same complaining party will be subject to the same action
was the challenged action in its duration too short to be fully litigated prior
to its cessation or expiration? That is,
was the agency award of the milk contract too short to be fully litigated prior
to its expiration? We find that it was. OP-ASG announced its choice for the milk
contract on May 3, 2000. ICI complied
with the appeals process and was denied at each level, first applying for
review by the OP-ASG, then with the ALJ, and finally filing with the Appellate
Court. The most efficient of appeals
would not have brought the case to this court until late winter or early
spring, at which point the contract would already have been substantially
completed. We thus find that the
agency’s decision on the milk contract is one that may, even under the most
proper or timely of circumstances, evade review.
The second element of the mootness exception analysis regards whether there is
a reasonable expectation that the same complaining party would be subjected to
the same action again. As stated in Lutali,
“‘[r]easonable expectation’ must go beyond a theoretical possibility of
repetition to the same plaintiff.” Lutali,
26 A.S.R.2d at 129 (citing Delta Air Lines, Inc. v. Civil Aeronautics
Bd., 674 F.2d 1 (D.C. Cir. 1982)); Murphy, 455 U.S. at
357. ICI is one of the consistent annual
bidders to the milk contract, and thus is a plaintiff that would again be
subject to the bidding, evaluation and selection process for future milk
contracts. Our inquiry, however, is more
specific, and regards whether ICI would reasonably be expected to be subject to
the specifically challenged actions again, not merely the general process of
procurement. We do not judge the merit
of the actions, but simply their repeatability.
ICI’s general allegation against OP-ASG for its wrongful assessment of points,
ICI refers to roughly five specific acts or omissions of OP-ASG in assessing
points to bidders. First, with regards
to Section I of the five-point test, ICI argues that SEB only subtracted 25
points out of 200 instead of subtracting all 200 points for Reid’s alleged
misbranding of its product in violation of applicable federal standards for
procurement. We need not reach the issue
of whether Reid’s product was misbranded, whether Reid’s labeling violated
federal standards, or whether a 25-point subtraction is enough. For the mootness inquiry, we need only ask
whether there is a reasonable expectation that the circumstance of an
opponent’s mislabeling and the SEB’s subtraction of points would occur again. ICI’s arguments do not indicate that this
problem has occurred before or will occur again; no pattern of repetition has
been shown, nor does it seem that the mislabeling and point assessment are due
to a potentially repeatable, procedural event rather than a one-time event and
number assignation. Finding no evidence
that this situation has occurred before, and no indication that it will occur
again, we find ICI’s arguments regarding Reid’s misbranding moot.
ICI argues that the SEB wrongfully deducted 33 points out of 300 from Section
II of its evaluation, regarding product specifications. It appears that ICI did not place the words
“Grade A” on its carton, where Reid did, and ICI was penalized for this
failure. ICI, however, itself indicates
that this deduction was a fluke rather than a recurring mistake, since in
previous years, no deduction was made for not including the “Grade A”
label. We thus fail to find a reasonable
expectation of ICI’s again being penalized for failure to place “Grade A” on
3. Failure to Perform
ICI argues that the SEB did not accurately assess Part III of the evaluation,
since it did not subtract points from Reid despite Reid’s failure to perform or
deliver during fifteen days of the 1999-2000 contract. According to ICI, the SEB was not even
informed of Reid’s failure to perform or deliver. The question is thus whether the SEB can be
reasonably expected to again misassess points for failure to perform due to
missing information. ICI does not argue
that such a lapse of information in the selection process has happened before,
or is likely to happen again. As to
whether such a point assessment is endemic to the process and by default,
repeatable, ICI seems to answer this question for us by introducing the
testimony of Tuna Hunkin, an SEB member for the 2000-2001 milk contract. He stated, “we would have deducted points”
had they known of the failure. Thus, the
assessment seems not to have been the result of an unfair process, but rather a
singular occurrence of a forgotten fact.
4. Point Scoring
ICI argues that Part IV of the test, the sample portion, was inappropriately
point-scored for all bidders.
Specifically, ICI argues that the correct method of point-scoring is to
divide the 200 points into three sections of 67 points each, labeled “A,” “B,”
and “C.” Russell Aab (“Aab”), a member
of the SEB in 2000-2001 who tallied the scores, apparently allocated all 200
points to the “C” category, entitled the “Taste Test Panel.” It appears that there is no consensus among
the SEB as to how Section IV is correctly computed. In testimony before the ALJ, Aab claimed that
all 200 points should be allocated to subsection C, while others such as Pat
Tervola and Tuna Hunkin claim that the method of dividing into three subsections
is correct. It is not clear how Section
IV was evaluated in the past.
disparities in SEB members’ accounts tend to reveal inconsistent,
nontransparent, and therefore unpredictable point-scoring for Section IV of the
evaluations for procurement. We thus
find that ICI may reasonably expect itself to be subject to agglomerated
5. Taste Test
ICI wages a number of arguments against the taste test conducted by the
SEB. First, ICI argues that the taste
test was a “preference test” of eight members of a taste panel selected by the
School Lunch Program department, rather than “an objective testing process that
is representative of the students island wide” based on a “comparative study
based on past data or statistics,” which is “scientifically tested for
reliability.” ICI also argues that the
very use of a taste test is inappropriate. The issue confronting the Court for
mootness determination is thus whether ICI is reasonably expected to be subject
to a taste test, evaluated according to the preferences of a taste test panel,
the taste test by a taste test panel is, evidently, part of the annual
procedure adopted by OP-ASG for evaluating bids, we find that ICI has a
reasonable expectation of being subject to it again, in bids for milk
we find ICI’s appeal with respect to point assessments for misbranding, product
specification, and previous noncompliance incapable of repetition, and
therefore moot. We further find that
ICI’s claims with respect to point scoring and the taste test are capable of
repetition, yet evading review. We now
turn to the question of whether we are able to afford prospective relief for
any of these claims.
stated by the Ninth Circuit court in Campesinos, “if prospective relief
can still be afforded, the controversy is not moot.” Id., 803 F.2d at 1068; see
also Associacao Dos Industries de Cordoaria, 828 F.Supp. at 984 (“The test
is whether a present controversy exists as to which effective relief may be
granted.”). In this case, ICI asks for
us to set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to reverse
the order and award the milk contract to ICI, or else grant damages to ICI for
OP-ASG’s failure to properly award the contract. Clearly, we cannot reverse OP-ASG’s choice
for the milk contract and award it to ICI because it has already expired. The remaining question is thus whether we can
grant damages to ICI.
Federal law 5 U.S.C.A. § 706, the Administrative Procedures Act (“APA”),
defines the scope of judicial review for courts reviewing federal agency
action. According to this provision,
courts subject to the APA may compel agency action or hold it unlawful on a
number of grounds. No provision is made,
however, for granting monetary relief.
Damages are thus simply not available under the APA. See, e.g.,
Williams v. Casey, 657 F.Supp. 921, 926 (S.D.N.Y. 1987).
The Legislature of American Samoa has adopted administrative procedures based
on an earlier model of the APA effectuating a similar scope of judicial
State Admin. Procedures Act (1961).
Specifically, A.S.C.A. § 4.1040(a) states:
person who has exhausted all administrative remedies available within an agency
and who is aggrieved by a final decision in a contested case shall be entitled
to judicial review under this section and 4.1041 through 4.1044.
§§ 4.1041 and 4.1044 limit judicial review to actions staying an agency’s
decision, reversing, or modifying the decision.
Therefore, as in the federal case, pecuniary relief is not available in
judicial review of administrative proceedings in American Samoa. We note, moreover, that A.S.C.A. § 4.1040(b)
allows for “the utilization of, or the scope of, judicial review available
under other means of review, redress, relief or trial de novo provided
by law.” If a disappointed bidder wishes
for monetary relief, the proper course of action is not through appellate
review of administrative proceedings, but rather through such means as a trial de
novo. See Kajima/Ray Wilson v.
Los Angeles County Metro. Transp. Auth., 82 Cal.Rptr.2d 348 (Cal.App.4th
of ICI’s claims against OP-ASG and Reid may be capable of repetition, yet
evading review, yet prospective relief is simply not available for any of ICI’s
claimed grievances. We thus must declare
the substance of ICI’s petition, moot.
II. Failure to File a Timely Answer
ICI requested judgment for relief based on Reid’s failure to file a timely
answer to ICI’s initial petition to this Court.
As basis for this claim, ICI mistakenly cited A.C.R. 15(b), which
provides that judgment be awarded where respondent fails to file an answer
within 20 days of petitioner’s application for enforcement of an order. However, the applicable rule is A.C.R. 15(a),
which applies to petitions for review of the orders themselves
rather than enforcement thereof. This
rule sets the standard that “[w]ithin 20 days after the petition is filed, the
respondent shall serve on the petitioner and file with the clerk an answer to
the petition.” However, the rule does
not require the court to give judgment where the time schedule is not followed,
nor does it impose any other sanction.
mistake of law is noted, and its claim based thereupon, dismissed.
is so ordered.
* Honorable John
L. Ward, II, Judge, District Court of American Samoa, serving by designation of
the Secretary of the Interior.