FSM SUPREME COURT
TRIAL DIVISION
Cite as Samuel vs. Pryor,
5 FSM Intrm. 91 (Pon. 1991)

[5 FSM Intrm. 91]

YOUNER SAMUEL, Individually and
as Personal Representative of the
Estate of SONYA SAMUEL, Deceased,
Plaintiff,

v.

MICKY PRYOR, D. O., POHNPEI STATE GOVERNMENT,
UNITED STATES OF AMERICA, andDOES 1-10, Inclusive,
Defendants,
 
FEDERATED STATES OF MICRONESIA,
Amicus Curiae.

CIVIL ACTION NO. 1990-001

OPINION

Edward C. King
Chief Justice
Decided: June 28, 1991

APPEARANCES:
For the Plaintiff:                            Daniel J. Berman
                                                       RUSH, MOORE, CRAVEN, SUTTON,
                                                       MORRY & BEH
                                                       P.O. Box 1491
                                                       Kolonia, Pohnpei  FM   96941

For Defendants:                          Traylor T. Mercer
MICKI PRYOR and                      MOORE, CHING, BOERTZEL & LAWLOR
UNITED STATES OF                 A Professional Corporation
AMERICA                                    Suite 400, GCIC Building
                                                      414 West Soledad Avenue
                                                      Agana, Guam   96910

[5 FSM Intrm. 92]

For Defendant:                            Joses R. Gallen
POHNPEI STATE                       Pohnpei State Attorney
                                                      Pohnpei State
                                                      Kolonia, Pohnpei FM 96941

For FEDERATED STATES:     Harold White
OF MICRONESIA, Amicus        Assistant Attorney General
Curiae                                          Office of the Attorney General
                                                      Federated States of Micronesia
                                                      Palikir, Pohnpei  FM   96941

*    *    *    *
 
HEADNOTES
 
Torts-Negligence; Torts-Government Liability; Jurisdiction;
Compact of Free Association
     Under the Compact of Free Association and the Federal Programs and Services Agreement, civilian employees of the United States government have immunity from civil and criminal process for wrongful acts and omissions done within the scope and in the performance of official duty, unless expressly waived by the U.S. government.  Samuel v. Pryor, 5 FSM Intrm. 91, 95 (Pon. 1991).

Torts - Negligence
     A United States federal employee does not waive immunity from civil liability under the Compact of Free Association and the Federal Programs and Services Agreement when the civilian employee initiated litigation in the FSM Supreme Court in a separate lawsuit with different claims against different parties and where affirmative misconduct is within the scope and in the performance of the official duty.  Samuel v. Pryor, 5 FSM Intrm. 91, 97 (Pon. 1991).

Sovereign Immunity
     The Federated States of Micronesia, as a sovereign nation, may bestow immunity upon civilian employees of another nation in order to obtain benefits for the citizens of this nation.  Samuel v. Pryor, 5 FSM Intrm. 91, 98 (Pon. 1991).

Constitutional Law - Judicial Powers; Compact of Free Association;
Constitutional Law - Supremacy
     It is the duty of the FSM Supreme Court to review any national law, including a treaty such as the Compact of Free Association, in response to a claim that the law or treaty violates constitutional rights, and if any provision of the Compact is contrary to the Constitution, which is the supreme law of the land, then that provision must be set aside as without effect.  Samuel v. Pryor, 5 FSM Intrm. 91, 98 (Pon. 1991).

Constitutional Law - Due Process
     The Compact of Free Association's immunization provisions, which limit a plaintiff's right to sue a physician for malpractice, do not affect a fundamental right, and therefore, the provisions need not be subjected to strict scrutiny but instead should be tested under the less stringent rational relationship test.  Samuel v. Pryor, 5 FSM Intrm. 91, 104 (Pon. 1991)

[5 FSM Intrm. 93]

Constitutional Law - Due Process
     Because there is a rational basis, linked to legitimate government purposes of increasing the availability of health care services, for providing immunity from patient suits to U.S. Public Health Service physicians, the Federal Programs and Services Agreement's immunity provisions are not in violation of a plaintiff's due process rights.  Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991)

Constitutional Law - Equal Protection
     A patient's equal protection rights were not violated when there was no showing that the patient was treated differently from any other patients on the basis of her sex, race, ancestry, national origin, language, or social status.  Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).

*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This is a wrongful death action brought by the mother of a deceased infant, Sonya Samuel. The plaintiff, Youner Samuel, sues as an individual and as special representative of her daughter's estate.  She alleges that her daughter's death at the Pohnpei State Hospital on January 21, 1988 was caused by negligence for which each of the defendants should be held liable.

     Now before the Court is a motion of one of the defendants, Dr. Micki Pryor, requesting dismissal of the action against her on grounds that as a United States employee providing services in Pohnpei under the Compact of Free Association1 between the governments of the Federated States of Micronesia and the United States, she is outside the jurisdiction of this Court as to claims for liability arising out of those services.2

[5 FSM Intrm. 94]

     The Court has concluded that the Compact and its subsidiary agreement, the Federal Program and Services Agreement (the FPS agreement), do provide immunity to Dr. Pryor for her actions as a United States Public Health Services physician.  Her motion to dismiss has therefore been granted.  This opinion is written to explain the Court's reasoning.

I.  Factual Background
     The claim of Dr. Pryor that at all times relevant to this litigation she was acting in the course and scope of her official duties as a United States Public Health Service physician is supported by her own affidavit and that of Sheridan L. Weinstein, M.D., Regional Health Administrator of the United States Public Health Service.  These representations are in essence supported by allegations in the plaintiff's complaint and are conceded by the plaintiff.

     Dr. Pryor's motion to dismiss requires the Court to interpret the Compact and the FPS agreement to determine whether they provide the immunity from suit which she seeks to invoke.

     No question is raised as to jurisdiction.  Interpretation of national treaties is part of the constitutional responsibility of this Court and the Court does have jurisdiction over this litigation. 3

A.  The Immunity Provisions
     The Federal Programs and Services Agreement is one of several subsidiary agreements entered into between the governments of the Federated States of Micronesia and the United States to supplement and implement the Compact of Free Association between the two nations.  The FPS agreement, adopted pursuant to article III, title 2, particularly sections 232 and 462, of the Compact of Free Association, came into effect simultaneously with the Compact.  See Compact 232.  The agreement spells out the arrangements whereby the United States government is to provide services, including health care, within the Federated States of Micronesia.

     There can be no serious question, and plaintiff does not dispute, that Dr. Pryor is a civilian employee of a United States federal agency within the meaning of the FPS agreement.  Article II, section 7 of the agreement provides immunity for United States civilian employees:

[5 FSM Intrm. 95]

Civilian employees shall have . . . immunity from civil and criminal process and liability relating to or resulting from any wrongful act or omission done within the scope and in the performance of official duty, except insofar as such immunity is expressly waived by the government of the United States.

     The term "civilian employee" is defined as meaning:

all Federal agency personnel, notwithstanding their citizenship or nationality, except local hire personnel, who are in the . . . Federated States of Micronesia, and who are in the employ of or serving with a Federal agency and who are employed in any of the activities of such Federal agency.

FPS agreement art. I, 2(d)

     A "Federal agency" is "each authority of the Government of the United States which provides services and related programs in accordance with article II of Title Two and Section 232 of the Compact, including any successor agency or agencies . . . ."  Id. art. I, 2(a).

B.  The Alternative Procedures
     The Compact and the FPS agreement substitute different procedures to replace the court claims which are thwarted by the article II, section 7 grant of immunity. Section 178(a) of the Compact says:

The federal agencies of the Government of the United States which provide the services and related programs in the . . . Federated States of Micronesia pursuant to Articles II and III of Title Two are authorized to settle and pay tort claims arising in the . . . Federated States of Micronesia from the activities of such agencies or from the act or omissions of the employees of such agencies.

     Article II, section 8(a) of the FPS agreement extends this authorization to an apparent commitment, mandating payments of "meritorious, noncontractual claims":

8(a).  The authorities of the Federal agencies    shall pay just and reasonable compensation in settlement of meritorious . . . claims arising out of the wrongful acts or omissions . . . of the Federal agencies themselves, or of their civilian . . . personnel, if such act or omission occurred within the scope and in the performance of official duty . . . .     

[5 FSM Intrm. 96]

     Section 178(a) of the Compact and article II, section 8(a) of the FPS agreement both specify procedures to be followed by FSM citizens wishing to assert claims against a United States federal agency.  Section 8(a) says:  "All such claims shall be processed and settled by the respective Federal agencies in accordance with the laws and regulations of the United States."  Section 178(a) is more specific, but is to the same effect, referring to the United States' statutory provisions for administrative settlement of claims:  "Except as provided in Section 178(b), the provisions of 28 U.S.C. 2672 and 31 U.S.C. 1304 shall apply exclusively to such administrative settlements and payments."

     If an individual citizen is dissatisfied with the response of the United States, further steps may be taken by the national government of the Federated States of Micronesia on a government to government basis.  Claims that cannot be settled under section 178(a) are to be "disposed of exclusively in accordance with Article II of Title Four."  Compact 178(b).  Section 8(a)  of the FPS agreement also points to article II of title 4 of the Compact for any claim which is "espoused" by the Federated States of Micronesia Government:  "Any such claims which cannot be settled as provided for in this paragraph, and which are espoused by the Government concerned, shall be disposed of pursuant to the provisions of Article II of Title 4 of the Compact."

     Article II of title 4 establishes a procedure whereby the governments of the United States and the Federated States of Micronesia shall "confer promptly," at the request of the other, on matters relating to the "provisions of this Compact or of its related agreements."  Compact 421.  If a dispute cannot be resolved through the good faith efforts of the governments themselves, a procedure for arbitration of the dispute is provided by section 424 of the Compact.

II.  Legal Analysis
     Although effectively conceding that Dr. Pryor is a civilian employee of a federal agency within the meaning of the FPS agreement, the plaintiff presses several arguments in an effort to avoid the effect of the immunity provisions.

A.  Waiver
     First, plaintiff contends that Dr. Pryor has waived her immunity by filing against other defendants a separate lawsuit for defamation, the resolution of which would require the Court to consider some of the matters, including the quality of medical care provided by Dr. Pryor for Sonya Samuel, which plaintiff seeks to place in issue in this case.

     The parties disagree as to whether an individual United States federal employee may waive immunity, or whether only waiver by the United States government, as authorized by article II, section 7, supra, of the FPS agreement is permitted.

[5 FSM Intrm. 97]

     Even assuming that Dr. Pryor, as an individual United States Federal employee, has power to waive her immunity, the parties disagree as to whether the waiver must be expressed unequivocally, or whether a waiver may be implied from other actions of the person holding immunity.

     The Court need not here resolve those questions.  Even giving the benefit of the doubt to plaintiff's arguments that an employee may waive her own immunity by implication, Dr. Pryor has not waived immunity as to the claims which the plaintiff asserts in this case.  Although Dr. Pryor has initiated litigation in this Court, that is a separate case.  Her claims in that case are against entirely different parties and are based upon theories of liability, particularly defamation and libel, and forms of misconduct, which are not at issue here.  She has made no claims against Ms. Samuel and has not indicated willingness to submit any dispute she may have with Ms. Samuel to this Court.  The contention that she has waived her article II, section 7 immunity against plaintiff's claims in this lawsuit is therefore rejected.

B.  Scope of Official Duty
     Plaintiff also asserts that Dr. Pryor failed to disclose to plaintiff that Sonya Samuel's death was caused by negligence.  This failure, plaintiff contends, could amount to fraud and is a departure from the performance of her official duties as a physician.4  Thus, the plaintiff concludes, the FPS agreement furnishes Dr. Pryor no immunity against these claims.

     Perhaps certain kinds of affirmative misconduct of a United States civilian employee may be so far outside the scope of the employee's work as to fall outside the immunity provided by the FPS agreement.  However, this is not true of a claim that a physician has failed to disclose to the family of a deceased patient that the negligence of the physician contributed to the death.  If there is a duty to disclose, it arises out of the physician-patient relationship.  Failure to fulfill that duty to disclose would be an "omission done within the scope and in the performance of official duty" of the physician.  Such a failure therefore would fall squarely within the immunity provided by article II, section 7 of the FPS agreement.

C.  Sovereign Immunity
     Plaintiff also questions whether the grant of immunity is a violation of the Constitution's grant of jurisdiction over cases where there is diversity of citizenship among the parties.

     It is by no means novel to international law for a host nation to provide immunity from domestic liability within the host nation for selected employees and officials of another nation which carries on activities within, and at the  invitation of, the host nation.  Indeed, throughout the eighteenth and

[5 FSM Intrm. 98]

nineteenth centuries, and even well into the twentieth, immunity of a sovereign nation from the jurisdiction of courts of another nation was considered a basic principle of international law.  However, as this Court has previously recognized, courts and scholars throughout the world in this century began to question, then to abjure, the notion of absolute sovereign immunity.  Panuelo v. Pohnpei, 2 FSM Intrm. 150, 161 n.10 (Pon. 1986).  Now practically all nations as a matter of both domestic and international law recognize major exceptions to their own sovereign immunity and to that of other nations.

     Even while the notion of inherent sovereign immunity has been eroded considerably through the years, there remains no doubt of the power of a sovereign to establish its own immunity, and that of its employees, for purposes of its own domestic legal system.  Panuelo v. Pohnpei, 2 FSM Intrm. at 162 and 164. Similarly, there is no serious question as to the power of one sovereign nation, in order to obtain benefits for its own citizens, to grant immunity from jurisdiction of its own courts for the purpose of encouraging another sovereign nation's presence or activities within the first sovereign's territory.

     Thus, the Court concludes that the Federated States of Micronesia, as a sovereign nation, may bestow immunity upon civilian employees of another nation. Plaintiff does not dispute that the grant of immunity at issue here was bestowed by appropriate officials of the Federated States of Micronesia in a manner permitted by the Constitution.

III.  Constitutional Issues
     Nonetheless, plaintiff contends that the FPS agreement's grant of immunity is unconstitutional and void as a violation of individual rights guaranteed to the citizens of this nation by the Constitution's declaration of rights.  FSM Const. art. IV.

A.  The Judicial Power of Review
     The Constitution is the "supreme law" of the Federated States of Micronesia. FSM Const. art. II, 1.  It is the duty of this Court to review any national law, including a treaty or other governmental agreement, in response to a claim that the law or treaty violates the constitutional rights of a citizen who has properly invoked the Court's jurisdiction.  See Constitutional Convention 1990 v. President of the Federated States of Micronesia, 4 FSM Intrm. 320, 324 (App. 1990); Suldan v. FSM (II), 1 FSM Intrm. 339 (Pon. 1983).  If any provision of the Compact or its subsidiary agreements is contrary to the Constitution, then that provision must be set aside as without effect.5

[5 FSM Intrm. 99]

B.  The Right Affected
     Ms. Samuel argues that the grant of immunity to United States agency physicians singles out the patients of those physicians arbitrarily and irrationally, in violation of the patients' rights to due process and equal protection.  In addressing these claims, it is necessary to identify, and keep in mind, the specific interests of the plaintiff which are at stake.  She asserts that the immunity will "create chaos in the state hospitals of the FSM" by placing upon each patient the "preliminary duty" of identifying the nationality and agency affiliation of his or her physician.  Yet, there is no direct assertion, and it does not appear, that the existence of immunity will in any way affect health care itself.  It is therefore the plaintiff's access to courts to sue for damages, not her right to health care, which is affected by the immunity provisions.

     Plaintiff's claim, then, is that the immunization provisions, by barring her cause of action against Dr. Pryor, deprive her of a property right in violation of her rights to due process and equal protection under law.  That contention is grounded upon the premise that a patient in the Federated States of Micronesia who suffers as a result of her physician's negligence or wrongdoing has a cause of action against the physician.  As the following analysis explains, that premise requires examination, but is correct.

     Examination of the premise is necessary because court decisions of this nation are not simply to be based upon "decisions of past Trust Territory cases or various foreign decisions which have dealt with similar interpretation or legal questions." SCREP No. 34, II J. of Micro. Con. Con. 821.6  Instead, the crucial requirement is that our holding be "consistent with . . . Micronesian customs and traditions and the social and geographical configuration of Micronesia," as well as with the Constitution of the Federated States of Micronesia.  FSM Const. art. XI, 11.  This mandate "instructs us that we may not merely assume away, or ignore, fundamental issues on the grounds that these basic issues have previously been decided in a particular way by other courts in other circumstances and under different governmental systems."  Alaphonso v. FSM, 1 FSM Intrm. 209, 212 (App. 1982).

[5 FSM Intrm. 100]

     As a threshold to due process and equal protection analysis, it is necessary first, therefore, to confirm whether the common law cause of action of which plaintiff claims she is deprived by the immunization provisions, would indeed exist under the jurisprudence of the Federated States of Micronesia in absence of those provisions.

     Since the actions complained of here are alleged to have occurred in Pohnpei, Pohnpei law should apply.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988). The Pohnpei Supreme Court Trial Division has held that it is consistent with "the Pohnpeian concept of civil wrong" to impose civil liability upon persons who fail to exercise reasonable care in carrying out their work.  Koike v. Ponape Rock Products, Inc. (I), 3 FSM Intrm. 57, 64 (Pon. S. Ct. Tr. 1988).  Based upon this reading, this Court has held that liability may arise out of the failure of persons working in the Pohnpei health care system to "do what reasonable persons in their positions would do" when that failure is alleged to have caused the "suffering or death of others."  Amor v. Pohnpei, 3 FSM Intrm. 519, 529 (Pon. 1988).

     The claims of the plaintiff in this case, then, do state a cause of action which normally would be recognized by courts within the Federated States of Micronesia. Hence, the Compact of Free Association and the FPS agreement do affect plaintiff's property interests by depriving her of the opportunity to assert in this Court a cause of action which otherwise would be cognizable.  We must therefore consider whether such a deprivation is a violation of her constitutional rights of equal protection or due process.

C.  Due Process
     This is the first time the Court has been asked to determine whether a governmental regulation is violative of substantive rights of due process.7

     The Constitution simply says, "A person may not be deprived of life, liberty or property without due process of law . . . ."  FSM Const. art. IV, 3.  Those words were proposed by the Micronesian Constitutional Convention's Committee on Civil Liberties.  The Committee's report provides useful guidance as to the intended meaning of the words.  SCREP No. 23 says:

While procedural due process requires governmental decision-making to conform with the concept of what is fair and just, substantive due process, on the other hand, addresses the rationality of the legislature.  With substantive due process, the

[5 FSM Intrm. 101]

court basically looks at the rationale or legitimacy  of the governmental interest.  In subjecting a  statute to the requirement of substantive due  process, the court asks: (1) Does the government  have power to regulate the subject matter?  If the statute is not within the power of the government,  such statute will be struck down.  For example, inasmuch as public monies cannot be expended for other than public purposes, a fortiori, an exercise  of the taxing power for merely private purposes is  beyond the authority of the legislature.Loan  Association v. Topeka, 20 Wall. 655 (1875);Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937).  (2)  If the government has the power to regulate, the court next asks if what the statute  proposes to do bears a rational relationship to the implementation of the legislative goal.  Another way of asking the same question is, "Can any reasonable legislature choose this particular statute to achieve its goal?"  In subjecting a statute to this second test, it must be pointed out that the statute is presumed to be valid.  The challengers of the statute must bear the burden of proving that the statute is devoid of any rational basis.  Additionally, with respect to economic measures, the courts do not substitute their social and economic beliefs for the judgment of legislative bodies. Munn v. Illinois, 94 U.S. 113 (1877); Ferguson v. Skrupa, 372 U.S. 726, 730, 733 (1963).  (3) Finally, where the statute involved arguably  infringes upon individuals' fundamental rights, the court must ask how important is the legislative objective.  In other words, where fundamental rights are involved, the court resorts to balancing the legislative goals against the fundamental rights  which would arguably be infringed if the statute were to stand.  The court must ask if there is a compelling governmental interest to justify holding the statute valid, even though the statute might limit fundamental rights.  The burden of proving compelling governmental interest shifts to the government.  The presumption is in favor of protecting fundamental rights, until the government proves a compelling justification to so curb these rights.  Such presumption also protects against irrational application of valid statutes.

     This explanation reveals that the framers anticipated that, depending on the nature of the rights involved, one of two different kinds of tests would be applied to determine whether a particular governmental regulation or

[5 FSM Intrm. 102]

statute which affects life, liberty or property is consistent with the constitutional demand for "due process of law."

     If the regulation does not infringe on fundamental rights, then it will be upheld if it is rationally related to a legitimate governmental goal.  Governmental regulations which do not affect fundamental rights are presumed to be valid.  The burden of proving that such a regulation is devoid of any rational basis is on the challenger of the classification.

     On the other hand, if the statute does affect fundamental rights, the prescribed mode of analysis is dramatically different.  To justify that kind of regulation, the government must overcome a strong presumption in favor of protecting fundamental rights.  To meet that burden the government must show that the infringement upon fundamental rights is necessary to a compelling governmental interest.

     1.  Fundamental rights - Unfortunately, neither the Constitution nor SCREP No. 23 defines the term, fundamental rights.  It is left then for the Court to deduce whether the FPS agreement's grant of immunity affects "fundamental rights" of Ms. Samuel.

     Giving the word, fundamental, its normal meaning, it would seem that a fundamental right would be one that is regarded as basic or essential to people or to society.  Presumably, the rights identified in the declaration of rights, FSM Const. art. IV, must be seen as fundamental within the Federated States of Micronesia. However, the rights identified in article IV are already fully protected by virtue of their inclusion in article IV.  Hence, it appears quite likely that the framers anticipated that other rights, not specifically referred to in the declaration of rights, would be protected as fundamental rights under the due process clause.

     We must then consider whether plaintiff's claim of a right to sue her physician for alleged malpractice is one of those which should be regarded as fundamental, and therefore entitled to special protection, within the Federated States of Micronesia.

     A judicial search for fundamental rights must be undertaken with humility and caution.  For a national court to attempt to scan the various ethnic groups and traditional living arrangements within the Federated States of Micronesia and then to purport to identify fundamental values which qualify for special protection is an ambitious and optimistic, if not indeed arrogant, undertaking.  As a general proposition, the Constitution contemplates that the Congress, not the judiciary, will be the policymaker, and declarer of societal values.  FSM v. Oliver, 3 FSM Intrm. 469, 480 (Pon. 1988); In re Cantero, 3 FSM Intrm. 481, 484 (Pon. 1988).  The judiciary should not lightly arrogate to itself the role of announcing that a particular value, unnamed in the Constitution, is qualified for special constitutional protection.

     Thus, the Court should be wary of requests that it identify as fundamental any rights beyond those specified in the declaration of rights.  For any such additional rights to be treated as fundamental, they must reflect core values and interests, which the Court is confident would be seen as such

[5 FSM Intrm. 103]

by all the peoples of the Federated States of Micronesia.8

     The right to sue one's physician for malpractice surely is not such a fundamental right.  Civil action lawsuits themselves are an introduced, relatively new, concept in Micronesia.  No reason has been suggested by the plaintiff, and none occurs to this Court, why such a nontraditional right should be regarded as basic to FSM society today.

     The idea that a particular form of civil action should be impervious to change except for compelling governmental reasons also is at odds with the nature of the common law itself, which evolves as societies change, events occur, and perspectives alter.  Over the years and through the centuries profound changes have been wrought in the common law through legislative and judicial recognition of new causes of action,9 and abolition of claims

[5 FSM Intrm. 104]

formerly recognized.10 This possibility of change is part of the genius of the common law system, essential to enable a particular court system to grow along with the community or nation it serves.

     The potential for adaptation is especially critical for a new nation such as this, which is just beginning the search for its own jurisprudence.  The judicial guidance clause, and the constitutional admonition of SCREP No. 34, supra, against automatic acceptance of common law principles, hammer down the point that common law causes of action are not to enjoy special protections against change.
 
     For all of these reasons, the Court concludes that the Compact's immunization provisions do not affect a fundamental interest of the plaintiff.  Therefore the classification established by the Compact's immunity provisions need not be subjected to strict scrutiny but instead should be tested under the less stringent rational relationship test.

     2.  Rational Basis - The defendants in this case, as well as the FSM national government, as amicus curiae, contend that the FPS agreement provided for immunity of United States Public Health Service physicians in order to encourage the United States to agree to send the physicians and to encourage willingness of the physician to serve in the Federated States of Micronesia.  The Constitution grants the national government concurrent power with the states to promote health. FSM Const. art. IX, 3.  The national government also has promised constitutionally to "take every step reasonable and necessary" to provide health care services. FSM Const. art. XIII, 1.  Thus, promotion of health care is a legitimate national government objective.

     In assessing the rationality of this governmental action infringing upon plaintiff's access to the courts, it is pertinent also that the rights of claimants against United States Public Health Service physicians are not simply abolished.  Instead, the settlement and arbitration provisions of the FPS agreement and the Compact which have been referred to, represent a commitment of United States federal agencies to "pay just and reasonable compensation in settlement of meritorious claims." Procedures whereby claimants may seek fulfillment of that pledge are provided. These procedures moderate still further the impact of the Compact's immunity provisions upon the rights of persons denied access to courts.

     Plaintiff offers no argument or evidence to detract from the apparent rationality of the relationship between the immunity provisions and increased

[5 FSM Intrm. 105]

availability of health care within the Federated States of Micronesia.  The Court therefore concludes that there is a rational basis, linked to the legitimate governmental purposes of increasing the availability of health care services, for providing immunity, shielding United States Public Health Service physicians from being sued by their patients.  Therefore the FPS agreement immunity provisions are not in violation of the plaintiff's rights of due process. 11

D.  Equal Protection
     1.  Forbidden classifications - The Constitution of the Federated States of Micronesia contains two references to equal protection.  Article IV, section 4 says, "Equal protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status."

     Plaintiff's equal protection claim is based on the fact that she is a member of a group of patients, those who receive care and assistance from United States Public Health Service physicians, which is treated differently from patients who are treated by other physicians.  This classification of patients is not based upon the "sex, race, ancestry, national origin, language, or social status" of the patients, but upon the identity of their physicians. There is no contention by the plaintiff, nor is there any indication in the record, that the patients treated by United States Public Health Service physicians are generally distinguishable from other patients on the basis of any of the characteristics identified in article IV, section 4.

     Accordingly, the patients are not barred access to the courts because of their membership in any of the categories referred to in article IV, section 4 of the Constitution.

[5 FSM Intrm. 106]

     2.  Equal protection of the laws - The Constitution's other equal protection provision is the second prong of article IV, section 3, which in its entirety says:  "A person may not be deprived of life, liberty or property without due process of law, or be denied the equal protection of the laws."

     This term, "equal protection of the laws," also was proposed by the Micronesian Constitutional Convention's Committee on Civil Liberties in SCREP No. 23, II J. of Micro. Con. Con. 793.  In explaining the concept of equal protection, the committee said:

Equal protection of the law means the protection of equal laws.  The clause requires that those similarly situated must be similarly treated . . . .  For illustration purposes, equal protection requires  "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons . . . should have like access to the courts of the country for the protection of their persons and property . . . ."  However, equal protection forbids only invidious discrimination. Where relevant differences exist between classes, different treatment by the state is permissible.  Additionally, the state has inherent power to prescribe regulations to promote the health, peace, morals, education and good order of the people and to legislate so as to increase the industries of the state, develop its resources and add to its wealth and prosperity.  Regulations for these purpose are not designed to impose unequal restrictions upon anyone, but to promote the general good with as little individual inconvenience as possible.

However, any statute that classifies and affords different treatment is subject to the same tests as those under substantive due process:  (1) Does the legislature have power to enact the statute that classifies?  (2) Does the classification bear a rational relationship to the legislative goal?   Again, the classification is presumed to be valid and the burden of proving that the statute is without a rational relationship to the legislative objective is on the challenger of the classification.  (3)  Where fundamental rights are involved, the classification constitutes a suspect criteria.  As such, the burden of proving that the classification bears a close rational relationship to some compelling governmental interests shifts to the government.  Fundamental rights are presumed to be absolute until the government proves a compelling governmental interest to curtail or restrain them.

[5 FSM Intrm. 107]

Id.  at 796-97.

     The framers plainly contemplated that equal protection analysis of classifications would be similar to the analysis of governmental regulations under the due process clause.  Classifications that do not involve fundamental rights will be upheld if they are rationally related to a legitimate governmental purpose.

     As already explained in analysis of the plaintiff's due process claim, the Court has concluded that fundamental rights are not affected by the immunity provisions, and that the immunity provided for United States Public Health Service physicians is rationally related to the governmental purpose of increasing the availability of health care in the Federated States of Micronesia.

     The Court therefore finds that the FPS agreement's provisions which bar plaintiff's claim in this Court against Dr. Pryor are not in violation of the plaintiff's rights of equal protection.

IV.  Conclusion
     The motion to dismiss of Dr. Micki Pryor is granted.
 
 
Footnotes:
 
1.  United States P.L. 99-239, 99 Stat. 1771 (1986); see also FSM Cong. Res. 4-60 (4th Cong., 2nd Spec. Sess. 1986).  Having been approved by some 79% of the FSM electorate in a national plebiscite held on June 21, 1983, and by three of the four state legislatures as well as by a unanimous Congress of the Federated States of Micronesia, the Compact and its subsidiary agreements became effective on November 3, 1986, pursuant to presidential proclamations of FSM President Tosiwo Nakayama and United States President Ronald Reagan.  See editor's notes, Vol. II, FSM Code, at 318, 319 (1987 Supp.); see also U.S. Presidential Proclamation No. 5564, Nov. 3, 1986, 3 C.F.R., 1986 Comp. at 146.

2.  As indicated in footnote one, the Compact of Free Association and its subsidiary agreements are the product of actions of the Congress and the Executive Branch, approved directly by the people of this nation and by three of the four state legislatures.  Resolution of the issues here, including challenges to the constitutionality of portions of the Compact of Free Association, could have significant impact on the relationship between this nation and the United States of America. Therefore the Court has invited, and has received and considered, a brief amicus curiae from the FSM national government.

3.  Article XI, section 6(b) of the Constitution says, "The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under . . . national law or treaties . . . ."  See also Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230, 105 S. Ct. 2860, 2866, 92 L. Ed. 2d 166, 178 (1986) ("[T]he courts have the authority to construe treaties and executive agreements . . . ."); People of Saipan v. United States Dep't of Interior, 502 F.2d 90 (9th Cir. 1974).

4.  Plaintiff's allegations concerning what Dr. Pryor has done or has not done that might constitute fraud are quite obscure and appear speculative at best.  Yet, as a procedural matter, the claim is taken as true for purposes of this motion to dismiss.

5.  Cf. Resolution No. 36 of the Micronesian Constitutional Convention, adopted on November 7, 1975, instructing Micronesian negotiators of the Compact of Free Association to prevent inclusion within the Compact of any terms inconsistent with the Constitution of the Federated States of Micronesia.  II J. of Micro. Con. Con. 1010.  See also Gibbons v. Salii, 1 ROP Intrm. 333 (App. 1986).

6.  This is not to say that common law principles developed in other nations are anathema.  In Semens v. Continental Airlines, Inc., 2 FSM Intrm. 131, 137-42 (Pon. 1985), the Court noted that the Micronesian Constitutional Convention did anticipate that judges in the new constitutional court system would find it necessary to draw on the experience and thinking of other courts.  2 FSM Intrm. at 139.  Accordingly, the Court held that common law decisions of the United States are a legitimate source of guidance for resolving tort issues.  2 FSM Intrm. at 142.  Since then, the Court has looked to common law decisions of courts within the United States for guidance and has accepted several tort claims which are generally recognized under the common law of various states within the United States.  See, e.g., Mailo v. Twum-Barrimah, 2 FSM Intrm. 265, 268 (Pon. 1986) (abuse of process); Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 12-14 (Pon. 1989) (interference with contractual or economic relations).

7.  The Court has on several occasions been required to determine whether particular governmental procedures affecting private interests are in accord with the Constitution's requirements of procedural due process.  See, for example, Semes v. FSM, 4 FSM Intrm. 66 (App. 1989) and Etscheit v. Santos, 5 FSM Intrm. 35 (App. 1991).

8.  The term "fundamental right" is employed in due process analysis in the United States in the same way the term is used in SCREP No. 23.  The report also makes specific references to United States cases.  These factors suggest that the framers anticipated that the due process clause in the FSM Constitution would be applied in a manner similar to that employed in the United States.
 
     Thus, the meaning of the term, fundamental right, in United States constitutional law can serve as a useful point of reference.  In Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L. Ed. 674 (1934), the court referred to a fundamental right as "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."  In a famous concurring opinion, controversial because of its expansiveness, Justice Goldberg said, "In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions."  Rather, they must look to the "traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental.  The inquiry is whether a right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.  Liberty also gains content from the emanations of specific constitutional guarantees and from experience with the requirements of a free society."  Griswold v. Connecticut, 381 U.S. 479, 493, 85 S. Ct. 1678, 1686-87, 14 L. Ed. 2d 510, 520 (1965).
 
     United States courts have seen freedom of association, the right to vote, the right to travel, fairness in certain aspects of criminal proceedings and the right to privacy, as involving fundamental rights.  J. Nowak, R. Rotunda and J. Young, Constitutional Law 370-72 (3d ed. 1986).

9.  For example, in the famous case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), Judge Cardozo set aside the old rule barring tort immunity of manufacturers of defective goods, holding the Buick Motor Co. liable for damages caused by a defective wheel on the car it had manufactured.  See also W. Keeton, Prosser and Keeton on Torts 12 (5th ed. 1984), discussing evolution of the law concerning liability for infliction of mental distress.

10.  For example, various tort claims involving interference with domestic relations and sexual misbehavior have been radically altered or abolished in the United States during the twentieth century.  W. Keeton, Prosser and Keeton on Torts 124, at 917 n.22, 927 nn.66 and 67 and 929-31 (5th ed. 1984).  It is noteworthy also that statutes abolishing such claims have been held constitutional "in virtually every case."  Id. at 930 n.3.  See also Werner v. Southern California Associated Newspapers, 216 P.2d 825, 828-29 (Cal. 1950) (Traynor, J.).

11.  As mentioned in note 8, supra, SCREP No. 23 reveals that the Micronesian Constitutional Convention's Committee on Civil Liberties anticipated that application of the due process clause in the FSM Constitution would be similar to that of the United States.  It is therefore of interest that the United States courts have consistently held that the due process clause poses little if any impediment to the abolition of a common law right of action.  It has been said that "a person has no property, no vested interest, in any rule of the common law."  Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88 n.32, 98 S. Ct. 2620, 57 L. Ed. 2d 595, 620 n.32 (1978).  Thus, "the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law to attain a permissible legislative object."  Silver v. Silver, 280 U.S. 117, 122, 50 S. Ct. 57, 58, 74 L. Ed. 221 (1929).  See also Carr v. United States, 422 F.2d 1007, 1010-11 (4th Cir. 1970); Durschame v. Merrill-National Laboratories, 574 F.2d 1307, 1309-10 (5th Cir. 1978); Hammon v. United States, 786 F.2d 8, 12 (1st Cir. 1986).[5 FSM Intrm. 108]