FSM SUPREME COURT
TRIAL DIVISION
Cite as Samuel vs. Pryor,
5 FSM Intrm. 108 (Pon. 1991)

[5 FSM Intrm. 108]

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

vs.

UNITED STATES OF AMERICA, et al.
Defendants.

FSM CIV. 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

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

[5 FSM Intrm. 109]
*    *    *    *

HEADNOTES
Sovereign Immunity; Jurisdiction; Compact of Free Association
      The Compact of Free Association provides to the United States immunity from the jurisdiction of the FSM Supreme Court for claims arising from the activities of United States agencies or from the acts or omissions of the employees of such agencies.  Samuel v. Pryor, 5 FSM Intrm. 108, 111 (Pon. 1991).
*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This action arises out of the claimed malpractice of a United States Public Health Services physician in Pohnpei.  Plaintiff's complaint names the United States of America as a defendant on grounds that all of the acts of the physician complained of in the complaint were performed by her in the course and scope of her employment by a United States federal agency, the United States Public Health Service.  The case is now before the Court on the motion of the United States for judgment on the pleadings.

     The United States Public Health Service furnishes physicians and other professional personnel who provide health-care services within the Federated States of Micronesia.  This is done pursuant to the Compact of Free Association between the Federated States of Micronesia and the United States, and especially a subsidiary agreement to the Compact, the Federal Programs and Services Agreement.

     In another opinion issued today in this case, the Court granted Defendant Pryor's motion to dismiss.  That decision was based upon the Court's conclusion that the Compact and FPS agreement do provide for United States Public Health Service physicians immunity from civil actions against them for their acts or omissions in the scope of their work.  In that opinion concerning Dr. Pryor, the Court also concluded that it is within the power of the national government to give such immunity to the United States and its employees.  Finally, the Court held that provision of immunity to Dr. Pryor against the malpractice claim asserted by plaintiff is not violative of plaintiff's rights of due process or equal protection under the Constitution of the Federated States of Micronesia.

     Those same considerations apply to plaintiff's claim against the United States. Thus, the only issue which must be addressed here is whether the Compact and FPS agreement do provide immunity for the United States from plaintiff's claims in this case.
 
     As explained in the Pryor opinion, the Compact of Free Association contemplates that claims against the United States and its employees providing

[5 FSM Intrm. 110]

services within the Federated States of Micronesia pursuant to the Compact will be settled through conciliation and arbitration rather than adjudicated in courts.  Section 178(a) authorizes "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 [of the Compact] . . . to settle and pay tort claims arising in . . . the Federated States of Micronesia from the activities of such agencies or from the acts or omissions of the employees of such agencies."

     Section 178(b) says, "Claims under Section 178(a) which cannot be settled under Section 178(a) shall be disposed of exclusively in accordance with Article II of Title Four.  Arbitration awards rendered pursuant to this subsection shall be paid out of funds under 31 U.S.C. 1304."  Section 178(c)(1) provides for the administrative settlement procedures and section 178(c)(2) provides for "arbitration, referred to in Section 178(b), in a timely manner, at a site convenient to the claimant, in the event a claim is not otherwise settled pursuant to Section 178(a)."

     As to court actions, the starting point of the Compact is that the governments of the United States and of the Federated States of Micronesia each will be immune from the jurisdiction of the courts of the other:

The Governments of the Marshall Islands and the Federated States of Micronesia shall be immune from the jurisdiction of the courts of the United States, and the Government of the United States shall be immune from the jurisdiction of the courts of the Marshall Islands and the Federated States of Micronesia.

Compact, 174(a).  There is however an exception to this apparently absolute reciprocal immunity:

The Governments of the Marshall Islands and the Federated States of Micronesia shall not be immune from the jurisdiction of the courts of the United States and the Government of United States shall not be immune from the jurisdiction of the courts of the Marshall Islands and the Federated States of Micronesia in any case in which the action is based on a commercial activity of the defendant Government where the action is brought, or in a case in which damages are sought for personal injury or death or damage to or loss of property occurring where the action is brought.

Id. 174(d).

     Since in this case the plaintiff seeks "damages . . . for death . . . occurring where the action is brought," section 174(d) seems on its face to permit this lawsuit.

[5 FSM Intrm. 111]

     However, section 178(d) takes away what section 174(d) seems to give.  Section 178(d) says that "[t]he provisions of Section 174(d) shall not apply to claims covered by this Section."  As already explained, section 178 covers all "tort claims arising in the . . . Federated States of Micronesia from the activities of [United States] agencies or from the acts or omissions of the employees of such agencies."

     The Court concludes therefore that the Compact of Free Association does provide to the United States immunity from the jurisdiction of this Court for purposes of the claims which plaintiff seeks to assert in this case.  Therefore the motion of the United States for judgment on the pleadings is granted and plaintiff's claims against the United States are dismissed.