American Samoa
Issues Associated with Some Federal Court Options Gao ID: GAO-08-1124T September 18, 2008American Samoa is the only populated U.S. insular area that does not have a federal court. Congress has granted the local High Court federal jurisdiction for certain federal matters, such as specific areas of maritime law. GAO was asked to conduct a study of American Samoa's system for addressing matters of federal law. This testimony discusses: (1) the current system for adjudicating matters of federal law in American Samoa and how it compares to those in the Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the U.S. Virgin Islands (USVI); (2) the reasons offered for or against changing the current system for adjudicating matters of federal law in American Samoa; (3) potential scenarios and issues associated with establishing a federal court in American Samoa or expanding the federal jurisdiction of the local court; and (4) the potential cost elements and funding sources associated with implementing those different scenarios. This testimony is based on GAO work performed from April 2007 to June 2008.
Because American Samoa does not have a federal court like the CNMI, Guam, or USVI, matters of federal law arising in American Samoa have generally been adjudicated in U.S. district courts in Hawaii or the District of Columbia. Reasons offered for changing the existing system focus primarily on the difficulties of adjudicating matters of federal law arising in American Samoa, principally based on American Samoa's remote location, and the desire to provide American Samoans more direct access to justice. Reasons offered against any changes focus primarily on concerns about the effects of an increased federal presence on Samoan culture and traditions and concerns about juries' impartiality given close family ties. During the mid-1990s, several proposals were studied and many of the issues discussed then, such as the protection of local culture, were also raised during the GAO study. Based on previous studies and information gathered for its June 2008 report, GAO identified three potential scenarios, if changes were to be made: (1) establish a federal court in American Samoa under Article IV of the U.S. Constitution, (2) establish a district court in American Samoa as a division of the District of Hawaii, or (3) expand the federal jurisdiction of the High Court of American Samoa. Each scenario would present unique issues to be addressed, such as what jurisdiction to grant the court. The potential cost elements for establishing a federal court in American Samoa include agency rental costs, personnel costs, and operational costs, most of which would be funded by congressional appropriations. Exact details of the costs to be incurred would have to be determined when, and if, any of the scenarios were adopted. The controversy surrounding whether and how to create a venue for adjudicating matters of federal law in American Samoa is not principally focused on an analysis of cost effectiveness, but other policy considerations, such as equity, justice, and cultural preservation.
GAO-08-1124T, American Samoa: Issues Associated with Some Federal Court Options
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Testimony:
Before the Committee on Natural Resources, Subcommittee on Insular
Affairs, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 2:00 p.m. EST:
Thursday, September 18, 2008:
American Samoa:
Issues Associated with Some Federal Court Options:
Statement of William O. Jenkins, Jr., Director: Homeland Security and
Justice Team:
GAO-08-1124T:
GAO Highlights:
Highlights of GAO-08-1124T, a testimony before the Subcommittee on
Insular Affairs, Committee on Natural Resources, House of
Representatives.
Why GAO Did This Study:
American Samoa is the only populated U.S. insular area that does not
have a federal court. Congress has granted the local High Court federal
jurisdiction for certain federal matters, such as specific areas of
maritime law. GAO was asked to conduct a study of American Samoa‘s
system for addressing matters of federal law. This testimony discusses:
(1) the current system for adjudicating matters of federal law in
American Samoa and how it compares to those in the Commonwealth of the
Northern Mariana Islands (CNMI), Guam, and the U.S. Virgin Islands
(USVI); (2) the reasons offered for or against changing the current
system for adjudicating matters of federal law in American Samoa; (3)
potential scenarios and issues associated with establishing a federal
court in American Samoa or expanding the federal jurisdiction of the
local court; and (4) the potential cost elements and funding sources
associated with implementing those different scenarios. This testimony
is based on GAO work performed from April 2007 to June 2008.
What GAO Found:
Because American Samoa does not have a federal court like the CNMI,
Guam, or USVI, matters of federal law arising in American Samoa have
generally been adjudicated in U.S. district courts in Hawaii or the
District of Columbia.
Reasons offered for changing the existing system focus primarily on the
difficulties of adjudicating matters of federal law arising in American
Samoa, principally based on American Samoa‘s remote location, and the
desire to provide American Samoans more direct access to justice.
Reasons offered against any changes focus primarily on concerns about
the effects of an increased federal presence on Samoan culture and
traditions and concerns about juries‘ impartiality given close family
ties. During the mid-1990s, several proposals were studied and many of
the issues discussed then, such as the protection of local culture,
were also raised during the GAO study.
Based on previous studies and information gathered for its June 2008
report, GAO identified three potential scenarios, if changes were to be
made: (1) establish a federal court in American Samoa under Article IV
of the U.S. Constitution, (2) establish a district court in American
Samoa as a division of the District of Hawaii, or (3) expand the
federal jurisdiction of the High Court of American Samoa. Each scenario
would present unique issues to be addressed, such as what jurisdiction
to grant the court.
The potential cost elements for establishing a federal court in
American Samoa include agency rental costs, personnel costs, and
operational costs, most of which would be funded by congressional
appropriations. Exact details of the costs to be incurred would have to
be determined when, and if, any of the scenarios were adopted. The
controversy surrounding whether and how to create a venue for
adjudicating matters of federal law in American Samoa is not
principally focused on an analysis of cost effectiveness, but other
policy considerations, such as equity, justice, and cultural
preservation.
Figure: Map Showing the Locations of American Samoa, CNMI, Guam, and
USVI:
[Refer to PDF for image]
Source: GAO, Map Resources (map art).
[End of figure]
What GAO Recommends:
This testimony contains no recommendations, but rather is focused on
providing decision makers with further details on various scenarios for
potentially changing the current system of adjudicating matters of
federal law in American Samoa.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-1124T]. For more
information, contact William Jenkins at (202) 512-8777 or
jenkinswo@gao.gov.
[End of section]
Madame Chairwoman and Members of the Subcommittee:
I am pleased to be here today to discuss Federal Court Options for
American Samoa. American Samoa is unique among U.S. insular areas in
that it does not have a federal court.[Footnote 1] A U.S. territory
since the early 1900s, American Samoa has internal self-government
under a locally adopted Constitution, and the High Court of American
Samoa is not part of the U.S. federal judicial structure. American
Samoa's local judiciary was initially created and administered by the
U.S. Navy, but since 1951 has operated under the authority of the
Secretary of the Interior, who appoints the High Court Chief Justice
and Associate Justice.
The issue of establishing a federal court in American Samoa is not new.
In the mid-1990s, legislative proposals were developed that would have
included the establishment of a federal court in American Samoa.
However, these initiatives were not enacted by Congress and were
controversial among American Samoans. Then, again, in February 2006,
the Delegate from American Samoa introduced legislation in the U.S.
Congress to establish a federal court in American Samoa[Footnote 2] and
later that month, the American Samoa legislature held a public hearing
to solicit public comments.[Footnote 3] No congressional actions were
taken on the bill and the Delegate from American Samoa withdrew the
legislation after he and others requested a GAO report, which was
issued on June 27, 2008.[Footnote 4]
My statement is based on our June 2008 report, which examined the
unique judicial structure of American Samoa and identified the issues
associated with establishing a federal court in American Samoa.
Specifically, we discussed (1) the current system and structure for
adjudicating matters of federal law arising in American Samoa and how
it compares to those in the Commonwealth of the Northern Mariana
Islands (CNMI), Guam, and the U.S. Virgin Islands (USVI); (2) the
reasons that have been offered for or against changing the current
system and structure for adjudicating matters of federal law in
American Samoa; (3) different scenarios for establishing a federal
court in American Samoa or expanding the federal jurisdiction of the
High Court of American Samoa if a change to the current system were
made, and the identification of issues associated with each scenario;
and, (4) the potential cost elements and funding sources associated
with implementing the different scenarios for establishing a federal
court in American Samoa.
We conducted our prior performance audit from April 2007 to June 2008
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Summary:
In contrast to other insular areas of the United States, such as CNMI,
Guam, and USVI, which have their own federal courts, American Samoa
does not have a federal court; rather, the High Court of American Samoa
has been granted limited federal jurisdiction for certain issues, such
as food safety, protection of animals, conservation, and shipping
issues. Because of the limits to the High Court's federal jurisdiction,
other matters of federal law arising in American Samoa--principally
criminal cases--have been adjudicated in U.S. district courts, mainly
in Hawaii or the District of Columbia. Since a 2001 precedent-setting
case involving human trafficking, federal prosecutors have initiated
criminal proceedings in the U.S. District Court of Hawaii, in addition
to past practices of handling matters only in the U.S. District Court
for the District of Columbia. With regard to federal civil cases, in
certain circumstances, such as when both the plaintiff and the
defendant reside in American Samoa and the events giving rise to the
civil action occurred in American Samoa, there is no federal court with
jurisdiction to handle such matters.
Reasons offered for changing the existing system focus primarily on the
difficulties of adjudicating matters of federal law arising in American
Samoa, such as logistical challenges related to American Samoa's remote
location, along with the goal of providing residents with more direct
access to justice in their place of residence, while reasons offered
against changing the current system of adjudicating matters of federal
law focus largely on concerns about the impact of an increased federal
presence on Samoan culture and traditions, as well as concerns
regarding the impartiality of local juries given close family ties.
During the mid-1990s, several proposals for changing the current system
for adjudicating matters of federal law were studied and many of the
issues discussed at that time, such as protecting local culture and
traditions, were also raised during our study.
Based on these prior studies and information gathered for our June 2008
report, we identified three principal scenarios for change, if a change
to the current system were made: (1) establishing a district court in
American Samoa pursuant to Article IV of the U.S. Constitution,
[Footnote 5] (2) establishing a district court in American Samoa that
would be a division of the District of Hawaii, or (3) expanding the
federal jurisdiction of the High Court of American Samoa. Key issues
associated with implementing any of these scenarios include the need
for enacting a statutory change and overcoming operational challenges,
such as what jurisdiction to grant the court and what type of
courthouse and detention facility would need to be built under each
scenario.
The potential cost elements for establishing a federal court in
American Samoa under the first two scenarios include court construction
and agency rental costs, as well as personnel and operational costs for
judicial and executive branch staff, most of which would be funded by
direct appropriations to each federal agency. However, the estimated
cost elements for these two scenarios are based on assumptions that
could change in actual implementation and the exact details of the
jurisdiction, staffing, and physical facilities would have to be
determined if, and when, any of the scenarios were adopted. Therefore,
the cost elements presented cannot be used for budget purposes and an
analysis of cost effectiveness for individual scenarios would be of
limited value given the data limitations. Regarding the third scenario,
we did not collect cost data because the granting of federal criminal
jurisdiction and expanded federal civil jurisdiction to the local High
Court would be a unique judicial arrangement, and there is no existing
federal structure upon which federal agencies could base cost
estimates.
Background:
American Samoa, the only U.S. insular area in the southern hemisphere,
is located about 2,600 miles southwest of Hawaii. American Samoa
consists of five volcanic islands and two coral atolls, covering a land
area of 76 square miles, slightly larger than Washington, D.C.
According to American Samoa Department of Commerce data, in 2005, the
population of American Samoa was about 65,500.[Footnote 6] Unlike
residents born in CNMI, Guam, and USVI, residents born in American
Samoa are nationals of the United States, but many become naturalized
U.S. citizens.[Footnote 7] Like residents of the other insular areas,
residents of American Samoa have many of the rights of citizens of the
50 states, but cannot vote in U.S. national elections and do not have
voting representation in the final approval of legislation by the full
Congress. According to Census Bureau data for 2000, the median
household income in American Samoa was $18,200, less than half of the
U.S. median household income of almost $41,000.
American Samoa does not have an organic act that formally establishes
its relationship with the United States. Two deeds of cession were
initially completed between Samoan chiefs, or matai, and the United
States in 1900 and 1904[Footnote 8] and ratified by the federal
government in 1929.[Footnote 9] In these deeds, the United States
pledged to promote peace and welfare, to establish a good and sound
government, and to preserve the rights and property of the people. The
U.S. Navy was initially responsible for federal governance of the
territory. Then, in 1951, federal governance was transferred to the
Secretary of the Interior, which continues today. The Secretary
exercises broad powers with regard to American Samoa, including "all
civil, judicial, and military powers" of government in American Samoa.
[Footnote 10] American Samoa has had its own constitution since 1960,
and since 1983, the local American Samoa constitution may only be
amended by an act of Congress.[Footnote 11]
The American Samoa Constitution provides for three separate branches of
government--the executive, the legislative, and the judicial. Since
1977, a popularly elected Governor heads the American Samoa executive
branch for 4-year terms.[Footnote 12] Nearly 40 American Samoa
departments, offices, and other entities within the executive branch of
the American Samoa government provide public safety, public works,
education, health, commerce, and other services. The Governor has
responsibility for appointing the Attorney General, Director of Public
Safety, and other executive branch agency leaders. The legislature, or
Fono, is comprised of 18 senators and 20 representatives. Each of the
senators is elected in accordance with Samoan custom by the city
councils of the counties that the senator represents. Each of the
representatives is popularly elected from the representative districts.
American Samoa exercises authority over its immigration system through
its own locally adopted laws. In fiscal year 2007, a total of almost
$105 million in federal funds were provided from a variety of federal
agencies, including the Departments of the Interior, Education,
Agriculture, Transportation, and Health and Human Services.
Specifically, DOI provided funds that same year in the amount of $22.9
million for American Samoa government operations, including the High
Court of American Samoa. In addition to these federal funds, a portion
of the funding for American Samoa government operations comes from
local revenues.
American Samoa Judiciary:
The American Samoa judiciary, as provided in the American Samoa
Constitution and American Samoa Code, consists of a High Court and a
local district court under the administration and supervision of the
Chief Justice.[Footnote 13] The High Court consists of four divisions-
-the trial division; the family, drug, and alcohol division; the land
and titles division; and the appellate division.[Footnote 14] The trial
division, which consists of the Chief Justice, the Associate Justice,
and associate judges, is a court of general jurisdiction, empowered to
hear, among other things, felony cases and civil cases in which the
amount in controversy exceeds $5,000. The Chief Justice and the
Associate Justice are appointed by the U.S. Secretary of the Interior
and are required to be trained in the law. There are six associate
judges, who are appointed by the Governor and are not required to have
formal legal training. The associate judges are matai, or chiefs, and
they preside over cases in the High Court, playing a more significant
role in deciding issues of matai titles and land. There is one local
district court judge, who is appointed by the Governor and must also
have formal legal training, who hears matters, such as misdemeanor
criminal offenses and civil cases in which the matter in controversy
does not exceed $5,000.[Footnote 15] The Chief and Associate Justices,
and the local district and associate judges hold office for life with
good behavior.[Footnote 16] The American Samoa judiciary has a public
defender, probation officers, translators, and marshals. Since the
1970s the Secretary of the Interior has appointed federal judges,
usually from the Ninth Circuit, to serve temporarily as Acting
Associate Justices in the appellate division of the High Court of
American Samoa.[Footnote 17]
American Samoan Customs and Traditions:
American Samoan customs and traditions have an influence over the local
legal system. The distinctive Samoan way of life, or fa'a Samoa, is
deeply imbedded in traditional American Samoa history and culture. Fa'a
Samoa is organized around the concept of extended family groups--people
related by blood, marriage, or adoption--or aiga. Family members
acknowledge allegiance to the island leader hierarchy comprised of
family leaders, or matai (chiefs). Matai are responsible for the
welfare of their respective aiga and play a central role in protecting
and allocating family lands. About 90 percent of land in American Samoa
is communally owned and controlled by matai, and there are limits in
American Samoa law regarding the transfer of property.[Footnote 18] The
concept of fa'a Samoa extends to the governance structures in American
Samoa and, thus, most high-ranking government officials, including
judges, are matai. Further, Samoan law allows for a custom of ifoga, or
ceremonial apology, whereby if a member of one family commits an
offense against a member of another family, the family of the offender
proceeds to the headquarters of the family of the offended person and
asks for forgiveness. After appropriate confession of guilt and
ceremonial contrition by the offending family, the family offended
against can forgive the offense. If the offender is convicted in court,
the court may reduce the sentence of the offender if it finds that an
ifoga was performed.
Past Proposals to Establish a Federal Court in American Samoa:
The issue of establishing a federal court in American Samoa is not new.
This issue has arisen within the larger question of defining the
political status of American Samoa and its relationship with the United
States. For example, in the 1930s, Congress considered legislation that
would provide an avenue of appeal from the High Court of American Samoa
to the U.S. District Court of Hawaii, during its deliberation of an
organic act for American Samoa. However, this initiative was not
enacted by Congress. Further, since 1969, there have been three
American Samoa commissions convened to study the future political
status of American Samoa. These commissions have studied, among other
things, the necessity of an organic act.[Footnote 19] The most recent
commission's report, published in January 2007, did not recommend any
changes in American Samoa's political status as an unorganized and
unincorporated territory of the United States, with the intent that
American Samoa could continue to be a part of the United States and
also have the freedom to preserve Samoan culture.[Footnote 20] In
addition, in the mid-1990s, the Department of Justice (DOJ) proposed
legislative options for changing the judicial structure of American
Samoa, including establishing a federal court within the territory.
These proposals were developed in response to growing concerns
involving white-collar crime in American Samoa, which were detailed in
a December 1994 DOJ crime assessment report.[Footnote 21] However,
while the House Committee on Resources held hearings on the DOJ report
in August 1995, and judicial committees studied various legislative
options, Congress did not take any actions on the proposals. Then, in
February 2006, the Delegate from American Samoa introduced legislation
in the U.S. Congress to establish a federal court in American Samoa and
later that month, the American Samoa Fono held a joint legislative
public hearing to solicit public comments on the bill.[Footnote 22] No
congressional actions were taken on the bill and the Delegate from
American Samoa withdrew the legislation after he and others requested
the June 2008 GAO report.
Differences between Article IV Courts in Insular Areas and Article III
Courts:
The federal courts in the insular areas of CNMI, Guam, and USVI were
established under Article IV of the Constitution, whereas U.S. district
courts elsewhere in the United States were established under Article
III of the Constitution.[Footnote 23] Article IV courts are similar to
Article III courts, but differ in terms of specific jurisdiction and
tenure of the judges. Article IV courts generally exercise the same
jurisdiction as Article III courts and may also exercise jurisdiction
over local matters. Article IV judges are appointed by the President,
with the advice and consent of the Senate, serve terms of 10 years, and
can be removed by the President for cause. Article III judges are
appointed by the President, with the advice and consent of the Senate,
and serve with Article III protections of life tenure for good behavior
and immunity from reductions in salary. Article IV judges hear both
federal and bankruptcy cases, whereas Article III courts generally have
a separate unit to hear bankruptcy cases. An Article III judge can be
designated by the Chief Judge of the Circuit Court of Appeals or the
Chief Justice of the United States to sit on an Article IV court.
However, an Article IV judge can be designated to sit only as a
magistrate judge on an Article III court.[Footnote 24]
The Federal Courts in CNMI, Guam, and USVI:
The federal courts in CNMI, Guam, and USVI were established at
different times, but developed in similar ways. The District Court for
the Northern Mariana Islands was established in 1977 as specified in
the 1975 agreement, or covenant, between the Northern Mariana Islands
and the United States.[Footnote 25] The District Court of Guam was
established when the federal government passed an Organic Act for Guam
in 1950.[Footnote 26] The District Court of the Virgin Islands, as it
currently exists, was established by an Organic Act in 1936.[Footnote
27] Each of these federal courts initially had jurisdiction over
federal, as well as local, issues. Over time, however, the federal
courts were divested of jurisdiction over local issues, with the
exception of the District Court of the Virgin Islands, which maintains
jurisdiction over cases involving local offenses that have the same
underlying facts as federal offenses.[Footnote 28] Similarly, each of
the federal courts had appellate jurisdiction over the local trial
courts until the local government established a local appellate court.
CNMI, Guam, and USVI have all established local Supreme Courts, so that
the federal courts no longer have appellate jurisdiction over local
cases. As such, the jurisdiction of each of the three federal courts
currently resembles that of district courts of the United States, which
include federal question jurisdiction, diversity jurisdiction, and the
jurisdiction of a bankruptcy court.[Footnote 29] Decisions of the
District Court for the Northern Mariana Islands and the District Court
of Guam may be appealed to the U.S. Court of Appeals for the Ninth
Circuit, and decisions of the District Court of the Virgin Islands may
be appealed to the U.S. Court of Appeals for the Third Circuit. An
Article IV judge--two Article IV judges in the case of the Virgin
Islands--sits on each of the federal courts and is appointed by the
President with the advice and consent of the Senate, for a term of 10
years, but may be removed by the President for cause.
Unlike Other Insular Areas, Matters of Federal Law in American Samoa
Are Adjudicated in U.S. District Courts in Hawaii or the District of
Columbia:
Unlike other insular areas, such as CNMI, Guam, and USVI, American
Samoa does not have a federal court. As a result, federal law
enforcement officials have pursued violations of federal criminal law
arising in American Samoa in the U.S. district courts in Hawaii or the
District of Columbia. In the absence of a federal court in American
Samoa, federal law has provided federal jurisdiction to the High Court
of American Samoa in areas such as food safety and shipping issues,
which is quite narrow compared to the comprehensive federal
jurisdiction granted to federal courts in other insular areas.
American Samoa's Local Judicial Structure Differs from Local Judicial
Structures in CNMI, Guam, and USVI:
With regard to its local judicial structure, American Samoa is
different from other U.S. insular areas. The judicial system in
American Samoa consists only of local courts that handle limited
federal matters, whereas the judicial system in CNMI, Guam, and USVI
are composed of local courts and federal courts that operate
independently from each other. Also, whereas the justices of the High
Court in American Samoa are appointed by the Secretary of the Interior,
the judges of the local courts in CNMI, Guam, and USVI are appointed by
the Governors of each insular area. Further, although decisions of the
appellate division of the High Court of American Samoa have been
appealed to the Secretary of the Interior, federal law provides that,
15 years after the establishment of a local appellate court, decisions
of the local appellate courts in CNMI, Guam, and USVI may be appealed
to the U.S. Supreme Court.[Footnote 30] As stated earlier, because
there is no federal court in American Samoa, matters of federal law
arising in American Samoa have generally been adjudicated in either the
District of Hawaii (Honolulu, Hawaii) or the District of Columbia
(Washington, D.C.).
Federal Criminal Cases Arising in American Samoa Are Generally Heard in
Hawaii and the District of Columbia:
With regard to criminal matters, although federal criminal law extends
to American Samoa, questions surrounding the proper jurisdiction and
venue of cases have posed complex legal issues when violations of
federal law occurred solely in American Samoa.[Footnote 31] However,
since a 2001 precedent-setting case involving human
trafficking,[Footnote 32] DOJ prosecutors told us that some of the
legal issues regarding jurisdiction and venue that had been unsettled
in the past have been resolved. For example, federal law provides that
the proper venue for a criminal case involving a federal crime
committed outside of a judicial district is: (1) the district in which
the defendant is arrested or first brought; or (2) if the defendant is
not yet arrested or first brought to a district, in the judicial
district of the defendant's last known residence; or (3) if no such
residence is known, in the U.S. District Court for the District of
Columbia.[Footnote 33]
Prior to this 2001 case, most cases arising in American Samoa were
brought in the U.S. District Court for the District of Columbia. In
this 2001 case, prosecutors used the "first brought" statute to
establish venue in the District of Hawaii, since the defendant was
arrested and "first brought" to Hawaii and then indicted in the
District of Hawaii. Based on the facts and arguments presented, the
Ninth Circuit upheld this application of the "first brought" statute.
[Footnote 34] Following this case, most defendants who have been
charged with committing federal offenses in American Samoa have been
charged in one of two venues--the U.S. district courts in Hawaii or the
District of Columbia, because there is no federal court in American
Samoa.[Footnote 35] In 2006 and 2007, DOJ attorneys prosecuted
defendants in the U.S. district courts in both Hawaii and the District
of Columbia for civil rights violations and public corruption cases
arising in American Samoa.[Footnote 36] DOJ prosecutors told us that
their approach is adjusted depending on the facts of each case, legal
challenges presented, and prosecutorial resources available.
Proper Federal Venue May Not Exist for the Adjudication of Certain
Federal Civil and Bankruptcy Matters:
With regard to certain federal civil matters, when both the plaintiff
and the defendant reside in American Samoa, and the events giving rise
to the civil action occurred in American Samoa, there may be no proper
federal venue, meaning there may be no federal court that may hear the
case.[Footnote 37] However, some civil cases have been brought against
the Secretary of the Department of the Interior (DOI) alleging that the
Secretary's administration of the government of American Samoa violated
the U.S. Constitution.[Footnote 38] In such cases, the U.S. District
Court for the District of Columbia has been the appropriate forum,
given that DOI is headquartered in Washington, D.C.
Bankruptcy relief is not available in American Samoa since federal law
has not explicitly extended the U.S. Bankruptcy Code to American Samoa,
and there is not a federal court in American Samoa in which bankruptcy
claims may be adjudicated.[Footnote 39] However, U.S. bankruptcy courts
may exercise jurisdiction over petitions for relief filed by American
Samoan entities under certain circumstances, such as if the entities
reside or do business in a judicial district of the United States and
the court finds that exercising jurisdiction would be in the best
interest of the creditors and the debtors.
The Federal Jurisdiction of American Samoa's High Court is Very Limited
Compared to Federal Courts in Other Insular Areas:
Despite the absence of a federal court in American Samoa, federal law
provides that the local court--the High Court of American Samoa--has
limited federal civil jurisdiction. However, the federal jurisdiction
of the High Court of American Samoa is very limited compared to
comprehensive federal jurisdiction in federal courts located in CNMI,
Guam, and USVI. In particular, federal law has explicitly granted the
High Court of American Samoa federal jurisdiction for certain issues,
such as food safety, protection of animals, conservation, and shipping
issues.
Although the High Court does not keep data on the number of federal
cases it handles, the Chief Justice of the High Court told us that, on
occasion, these federal matters, particularly maritime cases,[Footnote
40] have taken a significant amount of the court's time. The Chief
Justice noted that the piecemeal nature of the High Court's federal
jurisdiction sometimes creates challenges. For example, although the
High Court has jurisdiction to hear certain maritime cases, the High
Court does not have the authority under certain federal statutes to
enjoin federal court proceedings or to transfer a case to a federal
court. Such a situation may lead to parallel litigation in the High
Court and a federal court.[Footnote 41]
In addition to the limits of federal jurisdiction, there are
differences in the way federal matters are heard in the High Court
compared to the federal courts in other insular areas. For example,
whereas the Secretary of the Interior asserts authority to review High
Court decisions under federal law, the U.S. Courts of Appeals have
appellate review of decisions of the federal courts in CNMI, Guam, and
USVI. Also, as stated earlier, whereas the Justices of the High Court
of American Samoa are appointed by the Secretary of the Interior, the
judges of the federal courts in CNMI, Guam, and USVI are appointed by
the President, with the advice and consent of the U.S. Senate.
Proposals for Changing the Current System of Adjudicating Matters of
Federal Law in American Samoa Remain Controversial:
While various proposals to change the current system of adjudicating
matters of federal law in American Samoa have been periodically
discussed and studied, controversy remains regarding whether any
changes are necessary and, if so, what options should be pursued. In
the mid-1990s, various proposals to change the current system were
studied by judicial committees and federal officials. Issues that were
raised at that time, such as protecting American Samoan culture and
traditions, resurfaced during our interviews with federal and American
Samoa government officials, legal experts, and in group discussions and
public comments we received. Reasons offered for changing the existing
system focus primarily on the difficulties of adjudicating matters of
federal law arising in American Samoa, along with the goal of providing
American Samoans with more direct access to justice in their place of
residence. Reasons offered against changing the current system of
adjudicating matters of federal law focus largely on concerns about the
impact of an increased federal presence on Samoan culture and
traditions, as well as concerns regarding the impartiality of local
juries.
Concerns with White-Collar Crime Led to Discussions in the Mid-1990s on
Changing the System for Adjudicating Matters of Federal Law in American
Samoa:
The issue of changing the system for adjudicating matters of federal
law in American Samoa has been raised in the past in response to a
government audit and subsequent reports, which cite problems dating
back to the 1980s. These reports cited problems with deteriorating
financial conditions, poor financial management practices, and
vulnerability to fraudulent activities in American Samoa.[Footnote 42]
In March 1993, the newly elected Governor of American Samoa requested
assistance from the Secretary of the Interior to help investigate white-
collar crime in American Samoa in response to a projected $60 million
deficit uncovered by a DOI Inspector General audit.[Footnote 43] As a
result of this request, a team from DOJ spent 3 months assessing the
problem of white-collar crime in American Samoa and completed its
report in December 1994.[Footnote 44] The report concluded that white-
collar crime--in particular, public corruption-- was prevalent in
American Samoa and provided details on the difficulties with enforcing
federal law in American Samoa. The report discussed three possible
solutions: (1) establishing a district court in American Samoa, (2)
providing the U.S. District Court of Hawaii with jurisdiction over
certain matters of federal law arising in American Samoa, or (3)
providing the High Court of American Samoa with federal criminal
jurisdiction.
By August 1995, the U.S. Congress held hearings on the 1994 DOJ report
and possible alternatives to provide for the prosecution of federal
crimes arising in American Samoa. At the hearing, some American Samoa
government officials opposed suggestions for changing the judicial
system in the territory and views were expressed regarding increased
federal presence, the desire to retain self-determination over the
judicial structure, and the need to protect and maintain the matai
title and land tenure system in American Samoa. The American Samoa
Attorney General at that time testified that his office and the
Department of Public Safety had created a Joint Task Force on Public
Corruption that investigated and prosecuted several white-collar
offenses, including embezzlement, bribery, fraud, public corruption,
forgery, and tax violations.[Footnote 45]
For several months following the 1995 congressional hearings, different
legislative options were studied by judicial committees within Congress
and federal officials. One bill was drafted that would have given the
U.S. District Court of Hawaii limited jurisdiction over federal cases
arising in American Samoa. The bill proposed that one or more
magistrate judges may sit in American Samoa, but district judges of the
U.S. District Court of Hawaii would presumably preside over trials in
Hawaii. The bill was opposed by some federal judicial officials citing
an unfair burden that would be placed on the District of Hawaii, as
well as on defendants, witnesses, and juries due, in part, to the
logistical difficulties in transporting them between American Samoa and
Hawaii.[Footnote 46] By 1996, the proposed legislation was revised to
establish an Article IV court in American Samoa with full staff
accompaniments and limited federal jurisdiction that would exclude
cases that would put into issue the office or title of matai and land
tenure.[Footnote 47] While DOJ sent the legislation to the President of
the Senate and Speaker of the House in October 1996, it was never
introduced into the 104th Congress or in subsequent congressional
sessions.
Concerns about Human Trafficking and Federal Grant-Related Corruption
Have Heightened Law Enforcement Focus on American Samoa:
While the mid-1990's legislative proposals were primarily concerned
with white-collar crime in American Samoa, different types of criminal
activities have more recently emerged. Prior to 1999, FBI officials
told us that allegations of criminal activity in American Samoa were
investigated by agents based in its Washington, D.C. field office and,
due to the distance and costs involved, very few investigations were
initiated. Around mid-1999, FBI began to assign Hawaii-based agents to
investigations in American Samoa in response to increasing reports of
criminal activity. Then, due to growing caseload and a crime
assessment, in December 2005, FBI opened a resident agency in American
Samoa. According to an FBI official, other than a National Park Service
fish and wildlife investigator affiliated with the National Park of
American Samoa, the FBI agents were the first federal law enforcement
agents to be stationed in American Samoa. FBI's increased activities
over the past 8 years, and establishment of a resident agency, have
targeted a growing number of crimes in American Samoa, including public
corruption of high-ranking government officials, fraud against the
government, civil rights violations, and human trafficking. Among the
most notable was U.S. v. Lee, which was the largest human trafficking
case ever prosecuted by DOJ, as reported in 2007.[Footnote 48] This
2001 case involved about 200 Chinese and Vietnamese victims who were
held in a garment factory. In 2003, Lee was convicted in the U.S.
District Court of Hawaii of involuntary servitude, conspiring to
violate civil rights, extortion, and money laundering. Another federal
case in 2006 resulted in guilty pleas from the prison warden and his
associate for conspiring to deprive an inmate of rights, by assaulting
him and causing him bodily injury.[Footnote 49]
In December 2004, we found that American Samoa's failure to complete
single audits,[Footnote 50] federal agencies' slow reactions to this
failure, and instances of theft and fraud limited accountability for 12
key federal grants supporting essential services in American Samoa.
[Footnote 51] We recommended, among other things, that the Secretary of
the Interior coordinate with other federal agencies to designate the
American Samoa government as a high-risk grantee until it completed all
delinquent single audits. In June 2005, DOI designated the American
Samoa government as a high-risk grantee. The American Samoa government
subsequently completed all overdue audits and made efforts to comply
with single audit act requirements. Later, in December 2006, we
reported that insular area governments, including American Samoa, face
serious economic, fiscal, and financial accountability challenges and
that their abilities to strengthen their economies were constrained by
their lack of diversification in industries, scarce natural resources,
small domestic markets, limited infrastructure, and shortages of
skilled labor.[Footnote 52] Again, we cited the long-standing financial
accountability problems in American Samoa, including the late
submission of the reports required by the Single Audit Act, the
inability to achieve unqualified ("clean") audit opinions on financial
statements, and numerous material weaknesses in internal controls over
financial reporting and compliance with laws and regulations governing
federal grant awards.[Footnote 53] We made several recommendations to
the Secretary of the Interior, including increasing coordination
activities with officials from other federal grant-making agencies on
issues such as late single audit reports, high-risk designations, and
deficiencies in financial management systems and practices. DOI agreed
with our recommendations, but we have not yet assessed its progress
toward implementing them.
In addition to these GAO reviews, FBI and various inspector general
agents have conducted a broad investigation into federal grant-related
corruption in American Samoa, which yielded guilty pleas in October
2005 from four former American Samoa government officials, including
the Director of Procurement, the Director of the Department of
Education, the Director of the Department of Health and Social
Services, and the Director of the School Lunch Program. Additionally,
recent audits and investigations by the Inspector General offices of
the Departments of Homeland Security, Education, and the Interior
indicate that the American Samoa government has inadequate controls and
oversight over federal funds, that federal competitive bidding
practices have been circumvented, and that American Samoan officials
have abused federal funds for personal benefit. For example, in
September 2007, officials from the U.S. Department of Education
designated the American Samoa government as a high-risk grantee due to
serious internal control issues raised in previous single audits, and
cited a number of underlying fiscal and management problems. Due to the
department's concerns about the American Samoa government's ability to
properly administer and provide services with its funds, the department
imposed several special conditions, including restrictions on the
drawdown of grant funds. Also, the American Samoa legislature, or Fono,
has been assisting federal agencies in their efforts to investigate
public corruption and other crimes. Specifically, in early 2007, the
Fono established a Senate Select Investigative Committee to review and
investigate any unlawful, improper, wasteful, or fraudulent operations
involving local and federal funds or any other misconduct involving
government operations within all departments, boards, commissions,
committees, and agencies of the American Samoa government. An official
stated the committee reviews and investigates complaints, holds senate
hearings with relevant witnesses, and can refer cases to either the
American Samoa Attorney General or FBI for investigation and
prosecution.
Reasons Offered for Changing the Current System Focus Principally on
the Difficulties of Adjudicating Matters of Federal Law and Greater
Access to Justice:
As was the case in the 1990s, and was repeated in the interviews we
conducted and e-mail comments we received, the reasons offered for
changing the American Samoa judicial system principally stem from
challenges associated with adjudicating matters of federal law arising
in American Samoa and the desire to provide American Samoans with
greater access to justice. Federal law enforcement officials have
identified a number of issues that limit their ability to pursue
matters of federal law arising in American Samoa. These include
logistical challenges related to American Samoa's remote location.
Proponents of changing the judicial system of American Samoa also cite
reasons, such as providing American Samoans more direct access to
justice as in other insular areas, serving as a possible deterrent to
crime, and providing a means to alleviate the shame, embarrassment, and
costs associated with being taken away to be tried more than 2,000
miles from American Samoa. While the main areas of concern in the mid-
1990s and in our discussions were related to criminal matters arising
in American Samoa, there were also concerns regarding civil matters,
such as federal debt collection, although these were not addressed in
much detail.
Logistical Challenges Related to American Samoa's Remote Location:
Without a federal court in American Samoa, investigators and federal
prosecutors whom we interviewed said they were limited in their ability
to conduct investigations and prosecute cases due to logistical
obstacles related to working in such a remote location. In addition to
high travel costs, and infrequent flights into and out of American
Samoa, DOJ officials said they face difficulties involving effective
witness preparation and difficulties communicating with agents during a
small window of time each day (due to the 7-hour time difference
between Washington, D.C. and American Samoa). In some cases, search
warrants or wiretaps were not used by the prosecutors to the extent
that they would have been if American Samoa were in closer proximity to
Washington, D.C. or Honolulu, Hawaii.[Footnote 54] Federal prosecutors
told us that far fewer witnesses have been called to testify in front
of the grand jury, given the burden of high travel costs from American
Samoa. Federal prosecutors also told us that they must rely on witness
observations and summaries from federal agents stationed in American
Samoa rather than meet key witnesses face to face before bringing
charges or issuing subpoenas, as they would typically do. Further,
according to DOJ officials, the cost related to managing these cases
has limited the number of cases they are able to pursue. Federal law
enforcement agents told us that a federal court located in American
Samoa could bring additional investigative and prosecutorial resources
so that they would be able to pursue more cases. Although some have
suggested that judicial and prosecutorial resources from the judicial
districts of CNMI and Guam be deployed to American Samoa, the high
travel costs and logistical obstacles would not be any less, given that
there are no direct flights between American Samoa and Guam or between
American Samoa and CNMI.
More Direct Access to Federal Court and Parity with Other Insular
Areas:
Another key reason offered for changing the system for adjudicating
matters of federal law in American Samoa is that a federal court would
provide residents with more direct access to justice and the ability to
more easily pursue cases in the federal court system. Currently, the
ability to adjudicate federal cases exists only in very limited cases
through the High Court, at a significant cost of time and money to
travel to U.S. District Courts in Hawaii or Washington, D.C.; or not at
all, in the case of some civil matters and bankruptcy. Proponents state
that the establishment of a federal court would provide American Samoa
parity with other insular areas, such as CNMI, Guam, and USVI, which
have federal courts. Further, a legal expert said that a federal court
in American Samoa would provide the community with an opportunity to
see first hand how parties can come together to resolve their
differences with regard to federal matters. For example, some have
asserted that if public corruption trials were held in American Samoa,
they would act as a deterrent to others contemplating fraudulent
behavior; increase accountability with regard to government spending;
and provide satisfaction in witnessing wrong doers brought to justice.
Some stated in the February 2006 public hearing held by the Fono
[Footnote 55] and in e-mail comments we received that they have felt
shame and embarrassment when defendants are taken to distant courts and
in our group discussions, it was stated that American Samoa is
perceived by others as unable to render justice to its own residents.
Further, some officials have noted the significant costs that
defendants' families must bear in traveling great distances to provide
support during trials. This burden is exacerbated by the comparatively
low family incomes in American Samoa, which, as stated earlier, are
less than half of the U.S. median household income, according to 2000
Census Bureau data.
Finally, some people we met with stated that the current system of
holding federal criminal trials outside of American Samoa subjects
defendants to possible prejudices by jurors in other locations. They
cited the relative unfamiliarity of the judges and jurors in
Washington, D.C. or Honolulu, Hawaii regarding American Samoan cultural
and political issues and suggested that American Samoans would receive
a fairer trial in American Samoa than in these locations. This issue
had also been discussed in the mid-1990s. For example, in his testimony
during August 1995 congressional hearings, the then-Governor of
American Samoa stated that the people of American Samoa have the
ability to deliver just verdicts based on the evidence presented. He
noted that for almost 20 years prior, the trial division of the High
Court had successfully conducted six-person jury trials as evidence
that American Samoan customs and family loyalties had not prevented
effective law enforcement.[Footnote 56]
Comments from Group Discussions and E-mail Responses Reflect Some of
the Same Reasons Offered for Changing the Current System:
Views in support of changing the current system were also reflected in
some comments made during the group discussions we held in American
Samoa and in some of the e-mail responses we received. Some members of
the public expressed discontent over the significant costs associated
with American Samoan defendants and their families having to travel to
Hawaii or Washington, D.C. for court matters and they expressed the
importance of having a jury of their peers deciding their cases. Other
members of the public and a local community group expressed their
belief that a federal court in American Samoa may act as a deterrent
for the abuse of federal funds and public corruption, and provide
opportunities for American Samoans to pursue federal legal matters,
such as bankruptcy. While there was no consensus opinion, certain
members of the local bar association mentioned that having a federal
court could be beneficial for economic development, by attracting
qualified attorneys and court staff to American Samoa. Additionally,
one member stated that a federal court may lighten the workload and
reduce the backlog of the High Court by taking over its federal
maritime and admiralty matters.
Reasons Offered Against Changing the Current Judicial System Focus
Principally on Preserving the Culture and Traditions of American Samoa
and Concerns about Juries:
One of the key reasons offered against changing the current judicial
system is the concern that a federal court would impinge upon Samoan
culture and traditions. The most frequent concerns raised were related
issues--that the system of matai chiefs and the land tenure system
could be jeopardized. In raising these issues, some cited the deeds of
cession which specify that the United States would preserve the rights
and property of the Samoan people. Further, some law enforcement
officials we met with also opposed a change to the current system for
prosecuting federal cases arising in American Samoa because they were
concerned that, given the close familial ties in American Samoa, it
would be difficult to obtain convictions from local jurors.
Preservation of Local Culture and Traditions:
During the February 2006 Fono hearings,[Footnote 57] in e-mail comments
we received, and in statements by American Samoa government officials
we interviewed, concerns were voiced that the establishment of a
federal court in American Samoa could jeopardize the matai and land
tenure system of American Samoa. As noted above, matai hold positions
of authority in the community; for example, only matai may serve as
senators in the American Samoa legislature, and matai control the use
and development of the communal lands and allocate housing to their
extended family members. The land tenure system of American Samoa is
such that the majority of the land in American Samoa is communally
owned, and the sale or exchange of communally owned land is prohibited
without the consent of the Governor. Also prohibited is the sale or
exchange of communally owned and individually owned property to people
with less than one-half Samoan blood.[Footnote 58] American Samoa
government officials assert that the land tenure system fosters the
strong familial and community ties that are the backbone of Samoan
culture and that limits on the transfer of land are important to
preserve the lands of American Samoa for Samoans and protect the Samoan
culture.
Currently, cases regarding matai titles and land issues, such as
disputes over the rightful successor to a matai or land use or
improvements, are heard by the land and titles division of the High
Court of American Samoa. This division is composed of the Chief Justice
and Associate Justice, as well as associate judges, who are appointed
based on their knowledge of Samoan culture and tradition. Pursuant to
the federalist structure of the U.S. judiciary, if a federal court were
established in American Samoa, most cases arising under local law, such
as matai and land disputes, would likely continue to be heard by the
local court. However, some American Samoa officials stated that they
are concerned that if a federal court was established in American
Samoa, a federal judge, without the requisite knowledge of Samoan
culture and tradition, would hear land and title cases. They stated
that they would like to keep matai title and land tenure issues within
the jurisdiction of the High Court.
Another concern that was raised by government officials and residents
of American Samoa is that the presence of a federal court in American
Samoa may generate constitutional challenges to the matai and land
tenure system. Though such challenges may currently be brought in
existing venues, some voiced concerns that the establishment of a
federal court in American Samoa may make such challenges less costly
and, perhaps, more likely.
In general, many residents of American Samoa said they value their
culture and traditions and think that the matai and land tenure systems
in American Samoa are critical components of the fa'a Samoa. The
following quote from the Secretary of Samoan Affairs summarizes the
position we heard from many during our visit to American Samoa:
To this day, our native land tenure system remains at the very core of
our existence: our culture, our heritage and our way of life. Without
our native land tenure system, our matai or chieftain system will fade
over time--along with our language, our customs and our culture—.we, as
a people, have an overriding desire to keep the fabric of our society
(i.e., our Samoan culture) intact. No other U.S. state or territory
enjoys the total and complete preservation of its people's culture as
American Samoa. I fear that the imposition of a federal court system in
American Samoa may have a destructive impact on our culture.[Footnote
59]
Concerns about Juries:
Some have raised concerns regarding the establishment of a federal jury
system, given the potentially small pool of U.S. citizens in American
Samoa and the extended family ties among American Samoans. Federal law
provides that federal jurors must be U.S. citizens. [Footnote 60] As
discussed earlier, American Samoans are U.S. nationals, not U.S.
citizens, although they may apply and become U.S. citizens. Neither the
U.S. Census Bureau nor the American Samoa Department of Commerce
provides data on the number of U.S. citizens in American Samoa. Thus,
the proportion of the American Samoa adult population who are U.S.
citizens is unknown. If the number of U.S. citizens is fairly small,
then the pool from which to select federal jurors would be fairly small
without a statutory change. In addition, law enforcement officials have
speculated that extended family ties in American Samoa may limit the
government's ability to successfully prosecute cases. Specifically,
they raised the issue of jury nullification--the rendering of a not
guilty verdict even though the jury believes that the defendant
committed the offense--as a potential problem that may occur if jury
trials were held in American Samoa, due to the influence of familial
ties or other societal pressures on jurors. Federal law enforcement
officials we met with added that some witnesses involved in testifying
against others in previous federal criminal cases have relocated
outside of American Samoa and have lost their jobs and housing as a
result of their participation in cases. These officials stated that
they believe that similar societal pressures will be imposed on jurors
if trials were held in American Samoa. These officials concluded that
the current system of federal criminal trials taking place away from
American Samoa is the best way to get unbiased juries.[Footnote 61]
Comments from Group Discussions and E-mail Responses Reflect Some of
the Same Reasons Offered Against Changing the Current System:
Views expressing opposition to changing the current system were also
reflected in some comments we received from the group discussions we
held in American Samoa and from e-mail responses. Some members of the
public expressed concerns over an increased federal presence in
American Samoa and the potential legal challenges which could be
brought regarding the land tenure system and matai title traditions.
Further, some expressed concerns about non-Samoans filing
discrimination lawsuits over their inability to own land. Some stated
that the current system operates well and they did not see a need for
change. Others expressed opposition to a federal court in American
Samoa due to their concerns about impartial jurors. They stated that if
a federal court were established in American Samoa, jurors may not be
able to be impartial because of the close relations through family,
culture, church, government, or business. Finally, others expressed
concerns about the U.S. government pushing and imposing its will on
American Samoa, and their belief that changes to the current system
should come not from the federal government but from American Samoans
themselves.
Scenarios for Establishing a Federal Court in American Samoa or
Expanding the Federal Jurisdiction of the High Court of American Samoa
Have Varied Support and Unresolved Issues:
Based on our review of legislative proposals considered during the mid-
1990s, testimonies and reports, and through discussions with legal
experts and American Samoa and federal government officials, we
identified three potential proposals, or scenarios, if a change to the
judicial system of American Samoa were to be made. These scenarios are
(1) establishing an Article IV district court in American Samoa, (2)
establishing a district court in American Samoa that would be a
division of the District of Hawaii, or (3) expanding the federal
jurisdiction of the High Court of American Samoa. Each scenario would
require a statutory change and present unique operational issues to be
addressed. To the extent possible, we cited written documents and
knowledgeable sources in the discussion of these issues. See appendix I
for detailed information on our scope and methodology.
Three Scenarios Present Different Structures and Operational Issues to
Be Resolved:
Based on our review of past legislative proposals, testimonies, and
reports, and through discussions with legal experts and American Samoa
and federal government officials, we identified three potential
scenarios for establishing a federal court in American Samoa or
expanding the federal jurisdiction of the High Court of American Samoa:
1. establishing an Article IV district court in American Samoa,
2. establishing a district court in American Samoa that would be a
division of the District of Hawaii, or:
3. expanding the federal jurisdiction of the High Court of American
Samoa.
These scenarios are similar to those discussed in the 1990s, and are
described in more detail in attachment I. Each scenario would require a
statutory change and each presents unique operational issues that would
need to be resolved prior to implementation. Some issues to be resolved
include determining:
* what jurisdiction would be granted to the court;
* what type of courthouse facility and detention arrangements would be
needed and to what standards, including security standards; and:
* what jury eligibility requirements would apply.
Scenario 1: Establishing an Article IV District Court in American
Samoa:
The original structure of this scenario came from draft legislation
submitted by DOJ to the Speaker of the U.S. House of Representatives
and the President of the U.S. Senate in October 1996, which proposed
the creation of a new federal court in American Samoa.[Footnote 62] The
legislation specified that the court would have limited jurisdiction
that would exclude matters pertaining to matai title and land tenure
issues. Under this scenario, federal law would authorize a federal
court structure that most closely resembled federal courts in CNMI,
Guam, and USVI. It would include an Article IV district court with a
district judge, court clerk, and support staff. Below is a description
of the key issues under this scenario.
Jurisdiction: The statute creating the Article IV district court would
specify the court's jurisdiction. It could be limited to criminal cases
only, or may or may not include bankruptcy, federal question, and
diversity jurisdiction. American Samoa officials and others whom we
interviewed were divided on whether the law establishing a district
court in American Samoa should explicitly exclude matai and land tenure
issues from the court's jurisdiction. Another possibility is that, as
in other insular area federal courts, the federal jurisdiction of the
court could grow over time. For example, while the District Court of
Guam began with jurisdiction over cases arising under federal law in
1950, subsequent federal laws expanded its jurisdiction to include that
of a district court of the United States, including diversity
jurisdiction, and that of a bankruptcy court.
Appeals process: The process for appealing decisions would be the same
as in other Article IV district courts. Appeals would first go to the
U.S. Court of Appeals for the Ninth Circuit and then to the U.S.
Supreme Court.
Judges: The judge would be appointed in the same manner as federal
judges for the other insular areas, who are appointed by the President,
with the advice and consent of the Senate, for 10-year terms.
Associated Executive and Judicial Branch staff: Probation and Pretrial
services staff, U.S. Attorney and staff, and U.S. Marshals staff would
establish stand-alone offices. Defender services could be provided, at
least initially, through the Federal Public Defender Organization
personnel based in the District of Hawaii and/or Criminal Justice Act
(CJA) panel attorneys.[Footnote 63] CJA panel attorneys are designated
or approved by the court to furnish legal representation for those
defendants who are financially unable to obtain counsel.[Footnote 64]
Physical facilities: Under this scenario, a new courthouse facility
would need to be built to provide the courtroom, judge's chambers,
office space for federal court staff, and a holding area for detaining
defendants during trials. It is not clear if a detention facility for
detaining defendants pretrial and presentencing would need to be built
or if a portion of the existing local prison could be upgraded to meet
federal standards. According to the U.S. Marshals Service, the current
local prison in American Samoa does not meet federal detention
standards.
Operational issues: Several judicial officials and experts we met with
stated that this scenario is the most straightforward option because it
would be modeled after the federal courts in other insular areas, which
would place residents of American Samoa in a position that is equitable
with residents of the other insular areas. Other judicial officials we
met with stated, however, that this is potentially the most costly
scenario of the three, given the relatively small caseload expected.
However, the Pacific Islands Committee[Footnote 65] stated in its 1995
Supplemental Report that new federal courts historically have drawn
business as soon as they open their doors, and it is likely that growth
in the court caseload would result.[Footnote 66]
Scenario 2: Establishing a District Court in American Samoa That Would
Be a Division of the District of Hawaii:
This scenario would create a new division of American Samoa within the
District of Hawaii.[Footnote 67] There are potentially several
arrangements which could be devised to handle court matters. Since the
U.S. District Court of Hawaii is an Article III court, a judge assigned
to a Division of American Samoa would also presumably be an Article III
judge, which would differ from the Article IV courts in CNMI, Guam, and
USVI. Another possibility would be to assign an Article IV judge to
American Samoa. Regardless of the arrangement, a clerk of the court and
support staff would be needed in American Samoa to handle the work of
the court.
Jurisdiction: As with scenario 1, the statute creating the division in
the District of Hawaii would specify the court's jurisdiction. It could
be limited to criminal cases only, or may or may not include
bankruptcy, federal question, and diversity jurisdiction.
Appeals process: The process for appealing decisions would be the same
as the District of Hawaii, to the U.S. Court of Appeals for the Ninth
Circuit and then to the U.S. Supreme Court.
Judges: An Article III or Article IV judge would be appointed by the
President, with the advice and consent of the Senate, and serve either
a life term with good behavior (Article III) or a 10-year term (Article
IV) as is true in Guam, CNMI, and USVI.
Associated Executive and Judicial Branch staff: Probation and Pretrial
services, U.S. Attorney, and U.S. Marshals could provide the minimum
staff required in American Samoa and share support functions with their
offices in the District of Hawaii. Defender services could be provided,
at least initially, through Federal Public Defender Organization
personnel based in the U.S. District Court of Hawaii and/or CJA panel
attorneys.
Physical facilities: As with scenario 1, a new courthouse facility
would need to be built to provide the courtroom, judge's chambers,
office space for federal court staff, and a holding area for detaining
defendants during trials. Also, similar to scenario 1, it is unclear
whether a new detention facility would need to be built or if a portion
of the existing local prison could be upgraded to meet federal
standards.
Operational issues: Some federal and judicial officials we interviewed
told us that this scenario may be less costly than scenario 1 because
as a division of the District of Hawaii, some administrative functions
and resources may be able to be shared with Hawaii. Other federal and
judicial officials told us that costs for staff to travel between
American Samoa and Hawaii and additional supervisory staff which may be
needed in Hawaii may make scenario 2 just as costly, or possibly more
costly than scenario 1. Although this scenario would allow for trials
to be held in American Samoa, there may be issues to be resolved
concerning the status of any judges that would serve in the court and
the degree to which resources could or would be shared with the U.S.
District Court of Hawaii. For example, some judicial officials have
raised questions of equity about the possibility of Article IV judges
being assigned to federal courts in CNMI, Guam, and USVI while an
Article III judge was assigned to the federal court in American Samoa.
Scenario 3: Expanding the Federal Jurisdiction of the High Court of
American Samoa:
This scenario would expand the federal jurisdiction of the High Court
of American Samoa rather than establish a new federal court. This would
be a unique structure, as local courts typically do not exercise
federal criminal jurisdiction. As a result, a number of unresolved
issues associated with this scenario would have to be resolved should
this scenario be pursued.
Jurisdiction: The jurisdiction of the High Court would be expanded to
include additional federal matters, such as federal criminal
jurisdiction. This would be a unique structure, as local courts
generally do not exercise federal criminal jurisdiction. While there is
a history of federal courts in insular areas with jurisdiction over
local offenses, there has never been the reverse--a local court with
jurisdiction over both local and federal offenses.
Appeals process: The appellate process for federal matters under such a
scenario is unclear. The current process for the limited federal cases
handled by the High Court has five levels of appellate review: (1) to
the Appellate Division of the High Court, (2) to the Secretary of the
Interior, (3) to the U.S. District Court for the District of Columbia,
(4) to the U.S. Court of Appeals for the District of Columbia Circuit,
and (5) to the U.S. Supreme Court. Whether the appeals process would be
amended to match that of the federal courts in CNMI, Guam, and USVI
would have to be determined.
Judges: The Chief Justice of the High Court stated that the High Court
may need an additional judge to handle the increased caseload.
Alternatively, in our discussions, Pacific Island Committee members
with whom we met suggested that the Secretary of the Interior or the
Chief Judge of the Ninth Circuit could designate active and senior
district judges within the Ninth Circuit to handle any court workload
in American Samoa. They point out that they designated judges from the
Ninth Circuit to the District of Guam for over 2 years, when there was
an extended judge vacancy. Further, the Ninth Circuit has designated
local judges to handle federal matters, when necessary. For example,
the judges from the Districts of CNMI and Guam routinely use local
Superior Court or Supreme Court judges to handle federal court matters
and trials, in cases when they must recuse themselves from a court
matter or in the case of a planned or emergency absence. However,
Pacific Island Committee members with whom we met stated that
presumably federal judges would only handle federal court matters. It
was unclear whether High Court justices would handle federal and local
court matters and what implications might arise from such a structure.
Associated Executive and Judicial Branch staff: It is unclear whether
Probation and Pretrial services, U.S. Attorneys, and U.S. Marshals
would be established, since these staff are only provided to a district
court. Similarly, the authority under the CJA to authorize a federal
defender organization to provide representation or to compensate panel
attorneys is vested in the district court. The Department of Justice
would need to determine whether it would establish a federal prosecutor
position in American Samoa to prosecute certain federal cases in the
High Court. There are local Public Defender and Attorney General
Offices in American Samoa and the extent to which they could assist
with cases is unknown. According to the Chief Justice of the High
Court, it is unlikely that the existing probation and pretrial or court
security staff would be able to handle an increased workload. Currently
the High Court has three probation officers who work part-time as
translators for the court, and two marshals, one for each of the High
Court's two courtrooms.
Physical facilities: The extent to which federal detention and
courtroom security requirements would apply is uncertain. Until this
issue is resolved, activities could possibly continue in existing
courthouse and detention facilities. However, the High Court justices
and clerk said that current courtroom facilities are already used to
capacity without the added caseload that federal jurisdiction could
bring.
Operational issues: This scenario may be the lowest-cost scenario and
may alleviate concerns about the threat to the matai and land tenure
systems. It is potentially the lowest-cost scenario because some of the
existing court facilities and staff may be used. Some leaders within
the American Samoa government believe this is the best option and
supporters of this scenario note that the High Court has a history of
respecting American Samoa traditions and so they have fewer concerns
that issues of matai titles and land tenure would be in jeopardy. At
the same time, as it is unprecedented to give federal criminal
jurisdiction to a local court, this scenario could face the most
challenges of the three, according to federal judges and other judicial
officials. Legal experts with whom we met told us that, because this is
a unique arrangement, the High Court and U.S. judiciary may be faced
with having to constantly solve unique problems and develop solutions
on a regular basis. For example, judicial officials stated that the
High Court Justices would have to be cognizant of their roles and
responsibilities when shifting from the duties of a local High Court
Justice to the duties of a federal judge. A judicial official also
noted that the High Court justices may have to become familiar with
federal sentencing guidelines, which require a considerable amount of
training. In the August 1995 hearing, the DOJ Deputy Assistant Attorney
General stated that vesting federal jurisdiction in the High Court runs
counter to well-established legislative policy that district courts
should have exclusive jurisdiction over certain types of proceedings to
which the United States is a party. For example, federal law states
that U.S. district courts have exclusive jurisdiction over all offenses
against the criminal laws of the United States[Footnote 68] and with
respect to the collection of debts owed to the United States, provides
for an exclusive debt collection procedure in the courts created by
Congress.[Footnote 69] Similarly, federal regulatory statutes often
provide for enforcement and judicial review in the federal courts.
Another issue to be resolved is the appointment process for justices of
the High Court. While none of the judicial officials with whom we met
had concerns about the independence of the current justices, some
expressed concerns about the differences in the way judges are
appointed--while federal judges are generally appointed by the
President, the justices in American Samoa are appointed by the
Secretary of the Interior. As such, they suggested that the justices in
American Samoa may not be subject to the same vetting process and
protected by the same constitutional and statutory provisions--such as
salary guarantees--as are district judges.
Potential Cost Elements Subject to Considerable Uncertainties:
The potential cost elements for establishing a federal court in
American Samoa include agency rental costs, personnel costs, and
operational costs; most of which would be funded by congressional
appropriations. We collected likely cost elements, to the extent
possible, for scenario 1 and 2 from the various federal agencies that
would be involved in establishing a federal court in American Samoa. We
did not collect cost data for scenario 3 because of its unique judicial
arrangement and because there was no comparable existing federal court
structure upon which to estimate costs. For scenario 1 and 2, AOUSC
officials told us that a new courthouse would need to be built. GSA
officials told us that court construction and agency rental costs would
be comparatively high--about $80 to $90 per square foot for a new
courthouse, compared to typical federal government rental charges for
office space in American Samoa of around $45 to $50 per square foot in
2007. Funding sources for the judiciary and DOJ derive primarily from
direct congressional appropriations and funding for a federal
courthouse in American Samoa would likely be funded similarly. We found
the data for scenarios 1 and 2 sufficiently reliable to provide rough
estimates of the possible future costs for these scenarios for
establishing a federal court in American Samoa, with limitations as
noted.
Data Limitations and Assumptions:
Because the three court scenarios presented are hypothetical, and the
exact details of the jurisdiction, staffing, and physical facilities
would have to be determined when, and if, a specific scenario were
adopted, the estimated costs cannot be aggregated to obtain a precise
estimate of the total costs for the scenarios. Rather, the cost data
should be viewed as general approximations of the types and magnitude
of costs that could be incurred. Recognizing this uncertainty, we
collected likely cost elements for each scenario, to the extent
possible, from federal agencies that would be involved in establishing
a federal court in American Samoa--GSA for construction and rental
costs, AOUSC for judicial branch costs, and EOUSA and USMS for
executive branch costs.
We collected cost data for scenarios 1 and 2. According to AOUSC, under
each of these scenarios a new courthouse would need to be built. We did
not estimate costs for bankruptcy courts for either scenario, since, if
the district court were to hear bankruptcy cases, it is likely that the
district court judge would hear both federal matters and bankruptcy
cases, similar to other district judges in CNMI, Guam, and USVI. We did
not collect cost data for scenario 3 because, as stated earlier, it
would be a unique judicial arrangement and there is no comparable
existing federal court structure upon which to estimate costs. The cost
data presented cannot be used for budget purposes and an analysis of
cost effectiveness would be of limited value given that the data are
fragmented. The controversy surrounding whether and how to create a
venue for adjudicating matters of federal law in American Samoa is not
principally focused on an analysis of cost effectiveness, but other
policy considerations, such as equity, justice, and cultural
preservation. Thus, policy considerations, other than cost
effectiveness, are more likely to be the basis for deciding whether and
how to establish a court with federal jurisdiction in American Samoa.
Court Construction and Agency Rental Costs Would be Comparatively High:
Due to limitations on existing buildings and potential land
restrictions--about 90 percent of American Samoan land is communally
owned--GSA officials told us that a new courthouse in American Samoa
would likely use a build-to-suit lease construction arrangement rather
than government-owned construction and that construction and consequent
rental costs would be comparatively high. GSA provided initial
construction and rental costs for the hypothetical courthouse in
American Samoa, based on a floor plan submitted for a proposed new one-
judge courthouse in CNMI. According to GSA officials, there are no
buildings in American Samoa suitable for use as a federal courthouse.
Further, officials from the High Court of American Samoa told us that
its two-courtroom High Court building and its one-courtroom local
district court building are frequently used to capacity.
Under build-to-lease construction, the government contracts with a
private developer to build the courthouse and, in this case, GSA leases
the completed building based on the amortization of a 20-year
construction loan. GSA would then rent portions of the building to the
tenant federal agencies, such as AOUSC, EOUSA, and USMS. GSA officials
gave very preliminary rent estimates of $80 to $90 per square foot,
[Footnote 70] based on requirements similar to an existing build-to-
suit lease prospectus for a new courthouse in CNMI.[Footnote 71]
Further, GSA officials told us that federal agencies would be
responsible for up-front payments for the particular courthouse
governmental features, such as holding cells, and blast protection for
security.[Footnote 72] GSA officials indicate that the accuracy of the
initial American Samoa court construction may vary by as much as -20 to
+80 percent, thereby influencing rental costs. The GSA Assistant
Regional Administrator for Region IX Pacific Rim stated that there are
many factors that could affect construction costs and, therefore, the
tenant agencies' rental costs. For example, any cost increases
associated with the condition of an unknown site or escalation in
construction costs beyond what has been anticipated will have a direct
and proportional impact on the rental costs, as well as the up-front
costs that agencies may be required to pay.
Preliminary rental costs of $80 to $90 per square foot for a new
courthouse with specialized building requirements would exceed typical
federal government rental charges for offices in American Samoa at the
prevailing market rates of $45 to $50 per rentable square foot in 2007.
Judicial Branch Costs Include Judges, Court Staff, and Federal
Defender:
For scenarios 1 and 2, AOUSC officials provided information related to
three types of costs:
1. district court costs,
2. probation and pretrial services costs, and:
3. federal defender costs.
Scenario 1 Costs:
District court costs: For yearly district court costs under scenario 1,
AOUSC provided us with district court cost estimates of about $1.5
million for personnel costs, including the costs of one district court
judge and the full-time equivalent salaries of 2 law clerks and 1
secretary, 11 district clerk's office staff, 1 pro se law clerk,
[Footnote 73] 1 court reporter, and recruitment and training costs.
[Footnote 74] Operational costs were estimated at $0.1 million, which
includes judge's law books, stationery, forms, new case assignment and
jury management systems, travel, postage and delivery charges, and
consumables for both the first year and recurring years. Information
technology and other equipment costs were estimated at $0.1 million.
Space and facilities costs ranged between $2.6 million to $2.9 million
and include necessary alterations and renovations, signage,
furnishings, furniture, and estimated GSA rental costs.[Footnote 75]
Probation and pretrial services costs: For the yearly cost of probation
and pretrial services, AOUSC provided us with personnel and benefits
costs estimated at $0.3 million, which includes the full-time
equivalent salaries of one Chief Probation Officer, one probation
officer, and one administrative support staff. Operational costs were
estimated at $0.1 million, including travel, training, transportation,
postage, printing, maintenance, drug dependent offender testing and
aftercare, pretrial drug testing, mental health treatment services,
monitoring services, DNA testing, notices/advertising, contractual
services, supplies, awards, firearms, and protective equipment.
Information technology and other equipment costs were estimated at
about $16,000 (i.e., equipment, maintenance, purchase of copy
equipment, computer training, phone communications, supplies,
computers, phones, data communications equipment, printers, scanner,
and computer software).[Footnote 76] Space and facilities costs were
estimated at $0.4 million to $0.5 million, which includes furniture and
fixture purchases, as well as GSA rental costs.[Footnote 77]
Federal Defender costs: AOUSC officials did not estimate costs for a
Federal Defender's office, since it is unlikely that the hypothetical
court in American Samoa would, at least initially, reach the minimum
200 appointments per year required to authorize a Federal Defender
Organization or the number of cases that would warrant the creation of
a Federal Public Defender Organization headquartered in the District of
Hawaii. The court in American Samoa, as an adjacent district, might be
able to share the Federal Public Defender Organization staff based in
Hawaii, or the court could rely solely on a CJA panel of attorneys.
[Footnote 78] The costs to the Federal Public Defender Organization in
Hawaii and the costs of reimbursing CJA attorneys would vary based on
the caseload of the court.
Scenario 2 Costs:
District Court costs: According to AOUSC, the estimated district court
costs for scenario 2 could be similar to the estimated costs for
scenario 1. An AOUSC official indicated that there may not be a need
for a clerk, financial/procurement officer, jury clerk, or information
technology specialist in American Samoa under scenario 2, as those
functions may be handled out of the District of Hawaii office, leading
to some possible reductions in personnel salaries. However, some
judicial officials stated that any decrease in staff costs for this
scenario may be offset by increased costs for travel between Hawaii and
American Samoa. GSA rental costs would be comparable to scenario 1.
Probation and pretrial services costs: Probation and Pretrial Services
officials did not provide any cost differences between scenarios 1 and
2.
Federal Defender costs: Either the Office of the Federal Public
Defender in Hawaii or a CJA panel may provide defender services in
American Samoa under both situations, thereby also not leading to any
significant change in cost estimates between scenarios 1 and 2.
Executive Branch Costs Include Federal Prosecution and Security Costs:
For the Department of Justice, an EOUSA official provided U.S.
Attorney's Office cost estimates and a USMS official provided security
cost estimates for both scenario 1 and scenario 2.
U.S. Attorney's Office Costs:
Scenario 1 costs: EOUSA officials calculated the cost of a U.S.
Attorney's office based on a partial first year and a complete second
year. Modular personnel costs are $0.6 million for the first year and
$1.0 million for the second year, which includes one U.S. Attorney,
three attorneys, and two support staff. Operational costs ranged from
$0.5 million to $0.9 million, including travel and transportation,
utilities, advisory and assistance services, printing and reproduction,
and supplies and materials.[Footnote 79] Information technology costs
were estimated at $0.1 million for equipment and the operation and
maintenance of equipment. Space and facilities costs range between $1.3
million and $1.4 million and include the operation and maintenance of
facilities and rent to GSA[Footnote 80] and others.
Scenario 2 costs: EOUSA officials calculated U.S. Attorney's office
personnel costs for a partial first year and a complete second year.
Modular personnel costs rose from $0.6 million in the first year to
$1.0 million throughout the second year, which includes four attorneys
and two support staff. Operational costs remain consistent at $0.2
million for both the first and second years, reflecting travel and
transportation, litigation costs, supplies, and other miscellaneous
costs. Information technology and equipment costs were estimated to be
approximately $0.1 million for both years. Yearly rental rates may also
be comparable in the initial years. Personnel and operations costs for
scenario 2 were estimated to be less than for scenario 1 because
scenario 2 does not include a separate U.S. Attorney for American
Samoa. Rather, the costs for scenario 2 are based on the estimated
costs and personnel the U.S. Attorney for the District of Hawaii would
need to support cases that arise in American Samoa.
U.S. Marshals Service Costs:
Scenario 1 costs: USMS officials estimated that personnel costs were
$0.8 million, based on fiscal year 2008 salaries, benefits, and law
enforcement availability pay for all supervisory (one U.S. Marshal, one
Chief Deputy, one Judicial Security Inspector) and nonsupervisory (two
Deputy Marshals and one administrative) personnel that would be needed.
[Footnote 81] Operational costs were estimated to be $0.8 million based
on fiscal year 2008 standard, nonpersonnel costs for district
operational and administrative positions (including vehicles, weapons,
protective gear, communications equipment, and operational travel
costs), and $0.7 million for defendant transport (including guard
wages, airfare, per diem meals, and lodging).[Footnote 82] Information
technology and equipment costs were estimated at $0.6 million for the
installation of a computer network and telephone system to all USMS
offices, and $0.2 million for yearly service on the wide-area network
to American Samoa.[Footnote 83] Space and facilities costs were
estimated between $1.1 million and $1.3 million for rent,[Footnote 84]
plus variable defendant detention facility housing costs.[Footnote 85]
Scenario 2 costs: With regard to scenario 2, USMS officials estimated
that yearly personnel costs would be $0.5 million. Since a U.S.
Marshal, Chief Deputy, and Judicial Security Officer would be shared
with the USMS in Hawaii and not be located in American Samoa, personnel
costs for this scenario are estimated to be approximately $0.4 million
less than scenario 1. Operational costs (reflecting the standard,
nonpersonnel costs for operational and administrative positions) under
scenario 2 were estimated to be $0.5 million, or about $0.3 million
less than scenario 1. The operational cost differential between the two
scenarios with respect to prisoner transport is unclear.[Footnote 86]
While the USMS did not specifically address information technology
costs and other equipment costs with respect to scenario 2, the same
types of costs in scenario 1 would be involved if a computer network
and telephone system would need to be established. With respect to
space and facilities, if the USMS were housed in the same court
building as used for scenario 1, rental costs should be comparable
(between $1.1 million and $1.3 million.) If, however, under scenario 2,
the USMS were housed in an office building rather than a courthouse,
then the resulting cost may be lower than scenario 1. Additionally, to
the extent that defendants are detained in the same facilities as in
scenario 1 (e.g., the Bureau of Prisons detention facility in Hawaii),
detention facility costs should be comparable.
Potential Funding Sources Associated with Implementing the Different
Scenarios:
Funding for the federal judiciary and DOJ agencies derives primarily
from direct congressional appropriations to each agency and funding for
a federal court in American Samoa would likely be funded similarly. In
fiscal year 2006, about 94 percent of the total court salary and
expense obligations were obtained through direct judiciary funding. The
remaining 6 percent was obtained through offsetting collections, such
as fees. In that same year, about 95 percent of the total Probation and
Pretrial Services obligations were obtained through direct
congressional appropriations.
With regard to DOJ, in fiscal year 2006, 96 percent of the U.S.
Attorneys' obligations to support district court activities were
obtained through direct congressional appropriations and the remaining
4 percent were obtained through other sources, such as asset
forfeitures. In fiscal year 2008, USMS used direct congressional
appropriations to cover the expenses for staff hiring, payroll,
relocation, personnel infrastructure, rent, and utilities. The Office
of the Federal Detention Trustee funds 100 percent of prisoner
detention, meals, medical care, and transportation. AOUSC funds 100
percent of the court security officers, magnetometers, and security
measures at courthouse entrances.
Concluding Observations:
We are not making recommendations regarding whether the current system
and structure for adjudicating matters of federal law in American Samoa
should be changed. Also, given the multiple limitations on available
cost data, we are not making any determinations as to whether the
current system is more or less costly than the different scenarios for
change presented in this report. Rather, our purpose in reporting the
issues has been to provide decision makers with information regarding
the issues associated with potential scenarios for change. While the
cost data are very limited, in the end, the controversy surrounding
whether and how to create a venue for adjudicating matters of federal
law emanating from American Samoa is not principally focused on costs,
but on other factors, such as equity, justice, and cultural
preservation. Thus, policy considerations, other than an analysis of
cost effectiveness, are more likely to be the basis for deciding
whether and how to establish a court with federal jurisdiction in
American Samoa.
Madame Chairwoman, this completes my prepared statement. I would be
happy to respond to any questions you or other Members of the
Subcommittee may have at this time.
[End of section]
Attachment I:
Table 1: Description of Scenarios for Establishing a Federal Court in
American Samoa or Expanding the Federal Jurisdiction of the High Court
of American Samoa:
Structure:
Scenario 1: Federal court modeled on other federal courts in U.S.
territories;
Scenario 2: District court in American Samoa that is a division of the
District of Hawaii;
Scenario 3: Unique arrangement granting the High Court federal criminal
jurisdiction as well as expanded federal civil jurisdiction.
Judge and court staff:
Scenario 1: Article IV judge in American Samoa with court clerk and
support staff; Judge appointed by President with advice and consent of
the Senate;
Scenario 2: Article IV or Article III judge in American Samoa with
court clerk and support staff; Judge appointed by President with advice
and consent of the Senate;
Scenario 3: High Court Justices would hear additional federal matters;
Additional judge may be required, who may be appointed by the Secretary
of the Interior or, as with other federal judges, by the President,
with advice and consent of the Senate.
U.S. Attorney:
Scenario 1: One resident U.S. Attorney with three staff attorneys and
support staff;
Scenario 2: Share U.S. Attorney with District of Hawaii and staff a
satellite office with one Assistant U.S. Attorney, three staff
attorneys, and support staff;
Scenario 3: May use a federal prosecutor and/or local Attorney General.
Defender Services:
Scenario 1: Shared federal Public defender with District of Hawaii
(using staff based in Hawaii)[A] and/or CJA Panel[B];
Scenario 2: Shared federal Public defender with District of Hawaii
(using staff based in Hawaii)[ A] and/or CJA Panel[B];
Scenario 3: Under current law, federal defender services are not
provided unless within a judicial district. May be able to use a local
public defender.
U.S. Marshals Service:
Scenario 1: One U.S. Marshal, one chief deputy, one judicial security
inspector, two deputy marshals, and one administrative staff;
Scenario 2: Share U.S. Marshal with Hawaii and staff a satellite office
with supervisory deputy marshal, two deputy marshals, and one
administrative staff;
Scenario 3: Federal detention and security requirements may not apply.
May be able to use a local marshal or law enforcement staff.
Probation and Pretrial Services:
Scenario 1: One chief probation officer, one probation officer and one
administrative staff in American Samoa with shared staff in District of
Hawaii for additional support;
Scenario 2: One chief probation officer, one probation officer and one
administrative staff in American Samoa with shared staff in District of
Hawaii for additional support;
Scenario 3: Under current law, federal Probation and Pretrial services
are not provided unless within a judicial district.
Facilities:
Scenario 1: New courthouse facility would be needed that can house
judge, court staff, U.S. Attorney staff, U.S. Marshal staff, and
holding facility. Unclear whether new federal detention center would be
needed or whether a portion of the existing local prison could be
upgraded;
Scenario 2: New courthouse facility would be needed that can house
judge, court staff, U.S. Attorney staff, U.S. Marshal staff, and
holding facility. Unclear whether new federal detention center would be
needed or whether a portion of the existing local prison could be
upgraded;
Scenario 3: Federal court requirements may not apply. May be able to
use existing High Court or District Court facilities. Unclear whether a
new prison would be needed or whether a portion of the existing prison
could be upgraded.
Jurisdiction:
Scenario 1: May be jurisdiction of district court and bankruptcy court,
or may be more limited;
Scenario 2: May be jurisdiction of district court and bankruptcy court,
or may be more limited;
Scenario 3: Limited jurisdiction, which may grow over time.
Appeals:
Scenario 1: Appeals to U.S. Court of Appeals for the Ninth Circuit;
Scenario 2: Same as District of Hawaii (appeals to U.S. Court of
Appeals for the Ninth Circuit);
Scenario 3: It is unclear whether and to which tribunal High Court
decisions would be appealed.
Source: GAO analysis of relevant federal laws.
[A] According to Federal Public Defender officials, it is unlikely that
a court in American Samoa would reach the minimum 200 appointments per
year required to appoint a Federal Public Defender in American Samoa.
[B] U.S. district courts, with the approval of the judicial council of
the circuit, must have a plan for furnishing representation for any
person financially unable to obtain adequate representation. Under this
plan, a judge can appoint counsel from a federal defender organization
authorized by the court or a panel of attorneys designated or approved
by the court--called a Criminal Justice Act (CJA) panel--to furnish
legal representation for those defendants who are financially unable to
obtain counsel. 18 U.S.C. § 3006A. Where a federal defender
organization is established, the CJA provides that panel attorneys be
appointed in a substantial proportion of the cases (defined by
guidelines as approximately 25 percent of the appointments annually in
a district).
[End of table]
[End of section]
Attachment II: GAO Contacts and Acknowledgments:
GAO Contacts:
For further information about this statement, please contact William O.
Jenkins, Jr. at (202) 512-7777 or jenkinswo@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this statement. Staff making key contributions to
this statement were Christopher Conrad, Assistant Director, Nancy
Kawahara, and Tracey King.
[End of section]
Footnotes:
[1] For purposes of this testimony, we discuss four insular areas--
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam,
and the U.S. Virgin Islands, which are all jurisdictions under U.S.
sovereignty. In this testimony, we sometimes refer to American Samoa as
a U.S. territory, although there has not been enacted an organic act,
which would define its relationship to the United States.
[2] H.R. 4711, 109th Cong. (2006).
[3] Legislature of American Samoa, Report and Record of the Joint
Legislative Public Hearing on the Issues of Federal District Court
Authorization Transfer of Constitution Review Authority (Pago Pago,
American Samoa: Feb. 23-24, 2006). These hearings were conducted in the
Samoan language and translated into English.
[4] GAO, American Samoa: Issues Associated with Potential Changes to
the Current System for Adjudicating Matters of Federal Law, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-08-655] (Washington, D.C.: June
27, 2008).
[5] The district courts in U.S. insular areas are Article IV courts, as
they were established pursuant to Article IV of the U.S. Constitution,
which provides that "the Congress shall have power to dispose of and
make all needful rules and regulations respecting the territory or
other property belonging to the United States—." Because Article I of
the U.S. Constitution provides that Congress has power "to constitute
tribunals inferior to the Supreme Court," and because many tribunals
established by Congress were created pursuant to Article I, district
courts in U.S. insular areas are also sometimes called Article I
courts.
[6] This estimate includes U.S. citizens, U.S. nationals, and
foreigners. Neither the U.S. Census Bureau nor the American Samoa
Department of Commerce provides data on the number of all U.S. citizens
in American Samoa. In 2000, U.S. Census Bureau data indicated that
about 32,470 of the total population of 57,291 were born in American
Samoa, and thus U.S. nationals. However, the Census Bureau data do not
report the number of U.S. nationals who have become U.S. citizens.
[7] A U.S. national is either a citizen or someone who "owes permanent
allegiance to the United States." 8 U.S.C. § 1101(a)(21), (22).
Citizenship is derived either from the Fourteenth Amendment to the
Constitution ("All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States") or from a specific statute that confers citizenship on the
inhabitants of an area that, although not a state, is under the
sovereignty of the United States. No such legislation conferring
citizenship has been enacted for American Samoa.
[8] Samoan matai signed the Cession of Tutuila and Aunu'u in 1900 and
the Cession of Manu'a Islands in 1904. Later, in 1925, the U.S.
acquired Swain's Island. 43 Stat. 1357 (1925).
[9] 45 Stat. 1253 (1929) (codified at 48 U.S.C. § 1661).
[10] 48 U.S.C. § 1661(c); Exec. Order No. 10,264, 16 Fed. Reg. 6419
(1951).
[11] 48 U.S.C. § 1662a.
[12] The Governor may serve two consecutive 4-year terms but is only
eligible for a third term after one full term has intervened. Am. Samoa
Code Ann. § 4.0107.
[13] Am. Samoa Const. art. III; Am. Samoa Code Ann. tit. 3.
[14] In 2006, the High Court of American Samoa had a total of 607 cases
filed, which included 162 criminal cases, 112 civil actions, 15
appellate cases, 11 matai (chief) title cases, and 27 land cases. The
family, drug, and alcohol division had a total of 21 cases.
[15] In 2006, the district court of American Samoa had a total of 7,689
cases filed.
[16] The Chief Justice and Associate Justice may be removed by the
Secretary of the Interior for cause. The district and associate judges
may be removed by the Chief Justice for cause.
[17] See Am. Samoa Const. art. III, § 3; Am. Samoa Code Ann. § 3.0220.
Three justices and two associate judges are needed for an appellate
division session. According to a judicial official, since at least one
of the justices has been involved with the lower court trial that
justice cannot sit on the appeals. Therefore, federal judges travel to
American Samoa to sit on appellate division sessions, which are held
about once a year.
[18] The primary categories of land in American Samoa are freehold
land, individually owned native land, and family-owned communal land.
Freehold land, or lands included in court grants prior to 1900, may be
alienated to a person who has less than one-half native blood. However,
individually owned land and communal land, which is theoretically under
the control of the matai (or chiefs), may be alienated only to persons
with more than one-half native blood, and such land may be alienated to
a person with any nonnative blood only if the person (1) was born in
American Samoa, (2) is a descendant of a Samoan family, (3) lives with
Samoans as a Samoan, (4) has lived in American Samoa for more than 5
years, and (5) has officially declared an intention to remain in
American Samoa for life. The alienation of communal land also requires
the consent of the Governor. Am. Samoa Code Ann. § 37.0204.
[19] There have been three political status study commissions created
in American Samoa to study alternative forms of future political status
open to American Samoa. The first commission report was completed in
1970 and submitted to the American Samoa Legislature; the second report
was published by the Office of the Delegate at Large to Washington D.C.
in 1975; and the third report was published in January 2007 and
presented to the executive, legislative, and judicial branches of
government.
[20] Final Report, The Future Political Status Study Commission of
American Samoa (Jan. 2, 2007). An unorganized territory is one for
which the federal government has not provided self-government by
enacting an organic act or mutual agreement, such as a covenant. An
unincorporated territory is one that has not become fully incorporated
into the United States.
[21] American Samoa White Collar Crime Assessment, a Special Report to
the U.S. Department of the Interior, U.S. Department of Justice and
American Samoa Government (December 1994, redacted version).
[22] H.R. 4711,109th Cong. (2006).
[23] Article III of the U.S. Constitution provides that "the judicial
power of the United States, shall be vested in one supreme court, and
in such inferior courts as the Congress may from time to time ordain
and establish. The judges, both of the supreme and inferior courts,
shall hold their offices during good behavior, and shall, at stated
times receive for their services a compensation which shall not be
diminished during their continuance in office."
[24] A U.S. magistrate judge is a judicial officer of the district
court and is appointed by majority vote of the district judges of the
court to exercise jurisdiction over matters assigned by a statute as
well as those delegated by the district judges. A full-time magistrate
judge serves a term of 8 years. Duties assigned to magistrate judges by
district court judges vary from court to court. Magistrate judges may
handle certain pre-trial and post trial matters, as well as jury or
nonjury civil trials with the consent of the parties and misdemeanor
trials with the consent of the parties. District judges must preside
over cases involving felony charges.
[25] Pub. L. No. 95-157, 91 Stat. 1265 (1977); Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union with
the United States of America, Pub. L. No. 94-241, § 401, 90 Stat. 263
(1976).
[26] Pub. L. No. 630, 64 Stat. 384 (1950).
[27] Pub. L. No. 749, §§ 28, 29, 49 Stat. 1807, 1814 (1936).
[28] Federal law provides that the district court has concurrent
jurisdiction with the local courts over local offenses that are "of the
same or similar character or part of, or based on, the same act or
transaction or two or more acts or transactions connected together or
constituting part of a common scheme or plan, if such act or
transaction or acts or transactions also constitutes or constitute an
offense or offenses against one or more statute over which the District
Court of the Virgin Islands has jurisdiction—." 48 U.S.C. § 1612(c). As
such, if an individual engages in conduct that violates both federal
law and local law, that individual may be charged with both the federal
and local offense in the District Court of the Virgin Islands. For
example, if an individual, while engaged in the trafficking of
firearms, kills another person with premeditation, that individual may
be charged in the District Court of the Virgin Islands with both the
federal offense of firearms trafficking and the local offense of
murder.
[29] The original jurisdiction of U.S. District Courts is provided in
federal law and includes, for example, federal question jurisdiction,
which is jurisdiction over civil cases arising under the U.S.
Constitution, an act of Congress, or a treaty, and diversity
jurisdiction, which is jurisdiction over civil cases filed based on the
"diversity of citizenship" of the litigants, such as between citizens
of different states or between U.S. citizens and those of another
country, in which the matter in controversy has a sum or value that
exceeds $75,000.
[30] In 2004, 7 years before the expiration of the 15 years after the
establishment of the Supreme Court of Guam, Congress repealed the
provision providing the Ninth Circuit with temporary appellate
jurisdiction over decisions of the Supreme Court of Guam. Pub. L. No.
108-378, § 2, 118 Stat. 2206, 2208 (2004).
[31] See U.S. Const. art. III, § 2 ("Trial shall be held in the State
where the said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed").
[32] United States v. Lee, 159 F. Supp. 2d 1241 (D. Haw. 2001).
[33] 18 U.S.C. § 3238. With respect to a federal criminal offense
committed by an American Samoan within one of the federal judicial
districts, rather than within American Samoa, venue is proper in the
judicial district where the crime was committed pursuant to federal
law.
[34] United States v. Lee, 472 F.3d 638 (9th Cir. 2006).
[35] Although venue for most cases arising in American Samoa has been
established pursuant to the "first brought" statute, venue may
otherwise be proper in a district in which part of the offense was
committed. For example, in United States v. Ofoia, eight residents of
American Samoa were charged in the U.S. District Court for the Middle
District of Georgia with defrauding AFLAC, which is headquartered in
Georgia. United States v. Ofoia, No. 4:03-cr-011 (M.D. Ga. filed Feb.
28, 2003).
[36] For example, in the District of Hawaii, the Criminal Section of
DOJ's Civil Rights Division prosecuted several individuals involved in
a sex trafficking operation in American Samoa. United States v. Kuo,
No. 1:06-cr-524 (D. Haw. filed Oct. 4, 2006); United States v. Kuo, No.
1:07-cr-225 (D. Haw. filed May 10, 2007). In the District of Columbia,
the Public Integrity Section of the DOJ's Criminal Division initiated
proceedings against two government officials in American Samoa,
charging, among other things, fraud and bribery. United States v.
Sunia, No. 1:07-cr-225 (D.D.C. filed Sept. 6, 2007).
[37] See 28 U.S.C. § 1391.
[38] See, e.g., Corp. of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398 (D.D.C. 1986),
aff'd by 830 F.2d 374 (D.C. Cir. 1987); Majhor v. Kempthorne, 518 F.
Supp. 2d 221 (D.D.C. 2007).
[39] A bankruptcy court is an operating unit of the district court.
[40] Maritime law is the body of law governing maritime commerce and
navigation, the transportation at sea of persons and property, and
marine affairs in general.
[41] See 46 U.S.C. § 30511; 28 U.S.C. § 1404(a). For example, in a 2003
maritime case, a plaintiff filed actions based on the same incident in
both the U.S. District Court for the Southern District of California
and the High Court of American Samoa. 7 Am. Samoa 3d 139 (2003).
[42] GAO, American Samoa: Inadequate Management and Oversight
Contribute to Financial Problems, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/NSIAD-92-64] (Washington, D.C.: Apr. 7, 1992). U.S.
Department of the Interior, Office of Inspector General, American
Samoa: Top Leadership Commitment Needed to Break the Cycle of Fiscal
Crisis, Report No. P-IN-AMS-0117-2003 (Washington, D.C.: September
2005).
[43] In March 1993, Governor Richard Lutali of American Samoa wrote a
letter to the Secretary of the Interior, Bruce Babbitt, to request
that, pursuant to 48 U.S.C. § 1666, Federal Bureau of Investigation
(FBI) agents and a DOJ prosecutor be detailed to the American Samoa
Government to investigate and prosecute public integrity and other
white-collar crimes.
[44] Department of Justice, American Samoa White Collar Crime
Assessment: A Special Report to the U.S. Department of the Interior,
U.S. Department of Justice and American Samoa Government, (December
1994, redacted version).
[45] Statement of A.P. Lutali, Governor of American Samoa, accompanied
by Malaetasi M. Togafau, Attorney General, and R. Wendell Harwell,
Territorial Auditor, before the House Resources Subcommittee on Native
American and Insular Affairs, Hearing on the U.S. Department of Justice
Assessment on White Collar Crime in American Samoa (Washington, D.C.:
Aug. 3, 1995).
[46] Pacific Islands Committee of the Judicial Council of the Ninth
Circuit, Report of the Pacific Islands Committee on Federal
Jurisdiction in American Samoa (Aug. 23, 1995) and Supplemental Report
of the Pacific Islands Committee, American Samoa Legislation (Dec. 15,
1995).
[47] The jurisdiction was limited to civil and criminal proceedings
that were (1) brought by the United States or an officer or an agency
thereof arising under the laws of the United States or seeking to
collect a debt pursuant to the Federal Debt Collection Procedures Act
of 1990, or (2) designated to transmit requests for international
judicial assistance arising from foreign judicial proceedings pursuant
to treaties or other international agreements to which the United
States is a party and which extend to American Samoa.
[48] See United States v. Lee, 159 F. Supp. 2d 1241 (D. Haw. 2001).
[49] United States. v. Kelemete, No. 1:06-cr-116 (D. Haw. filed Mar. 1,
2006).
[50] Recipients that expend $500,000 or more a year in federal awards
under more than one federal program are required by the Single Audit
Act to undergo a single audit. Single audits are audits of the
recipient organization--the government in the case of insular areas--
that focus on the recipient's internal controls and its compliance with
laws and regulations governing federal awards. 31 U.S.C. § 7501-7507;
Office of Management and Budget Circular No. A-133, Audits of States,
Local Governments, and Non-Profit Organizations.
[51] GAO, American Samoa: Accountability for Key Federal Grants Needs
Improvement, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-41]
(Washington, D.C.: Dec. 17, 2004).
[52] GAO, U.S. Insular Areas: Economic, Fiscal, and Financial
Accountability Challenges, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-07-119] (Washington, D.C.: Dec. 12, 2006).
[53] A material weakness is a significant deficiency, or a combination
of significant deficiencies, that result in more than a remote
likelihood that a material misstatement of the financial statements
will not be prevented or detected. A significant deficiency is a
control deficiency, or combination of control deficiencies, that
adversely affects the entity's ability to initiate, authorize, record,
process, or report financial data reliably in accordance with generally
accepted accounting principles such that there is more than a remote
likelihood that a misstatement of the entity's financial statements
that is more than inconsequential will not be prevented or detected.
[54] There is also some legal uncertainty about the current ability of
federal judges to issue search warrants for property in American Samoa
because it is outside of a federal judicial district. A proposed change
to the Federal Rules of Criminal Procedure, to be effective in December
2008, would authorize a magistrate judge in a district in which
activities related to the crime under investigation may have occurred
or in the District of Columbia to issue a search warrant for property
in American Samoa.
[55] Legislature of American Samoa, Report and Record of the Joint
Legislative Public Hearing (Feb. 23-24, 2006).
[56] American Samoa code provides that a person charged with an offense
carrying a maximum punishment of over 6 months of imprisonment shall be
tried by a jury unless he personally waives this right in writing or in
open court. The law also provides that the petit jury shall be
comprised of six persons, the jury verdict must be unanimous, and voir
dire of prospective jurors shall be conducted by the court. Am. Samoa
Code Ann. § 3.0232.
[57] Legislature of American Samoa, Report and Record of the Joint
Legislative Public Hearing (Feb. 23-24, 2006).
[58] The ethnic limitations apply to communal lands and individually
owned native lands, but not freehold lands.
[59] Letter from the Secretary of Samoan Affairs, American Samoa
Government, to GAO, dated October 12, 2007.
[60] 28 U.S.C. §§ 1861-1878.
[61] A federal law enforcement official suggested that rather than
establishing a federal court in American Samoa, one option would be to
designate the U.S. District Court of Hawaii as the proper venue for
federal cases arising in American Samoa and provide the U.S. District
Court of Hawaii with additional resources to handle such cases. As
such, cases arising in American Samoa would be heard by district judges
and juries in Hawaii.
[62] At that same time, the Judicial Conference of the United States'
position was that if Congress determined to establish federal judicial
jurisdiction in American Samoa, and to commit sufficient resources to
create such jurisdiction, the conference would endorse the creation of
an Article I district court in American Samoa.
[63] Federal Public Defender officials we met with said that it is
unlikely that a court in American Samoa would reach the minimum 200
appointments per year required to appoint a Federal Public Defender in
American Samoa. In addition, these officials also indicated that it is
unlikely that, under the CJA provision that adjacent districts may
aggregate their appointments to establish eligibility, there would be a
sufficient CJA caseload to support opening of a staffed branch office
of the Federal Public Defender Organization (headquartered in Honolulu,
Hawaii) in American Samoa. In the past, the Federal Public Defender in
Hawaii has represented defendants from American Samoa when brought to
trial in the U.S. District Court of Hawaii.
[64] U.S. district courts, with the approval of the judicial council of
the circuit, must have a plan for furnishing representation for any
person financially unable to obtain adequate representation. Under this
plan, a judge can appoint counsel from a federal defender organization
authorized by the court or a panel of attorneys designated or approved
by the court--called a Criminal Justice Act (CJA) panel--to furnish
legal representation for those defendants who are financially unable to
obtain counsel. 18 U.S.C. § 3006A. Where a federal defender
organization is established, the CJA provides that panel attorneys be
appointed in a substantial proportion of the cases (defined by
guidelines as approximately 25 percent of the appointments annually in
a district).
[65] The Pacific Islands Committee is a standing committee of the
Judicial Council of the Ninth Circuit with an indefinite liaison
responsibility to the Judicial Conference of the U.S. Committee on
Federal-State Jurisdiction. The Pacific Islands Committee fulfills the
oversight responsibilities of the Ninth Circuit Judicial Council and
the Judicial Conference of the United States with respect to the
judiciaries of the territories and former trust territories in the
Pacific, including American Samoa. The specific responsibilities
include assisting in the development and provision for continuing
judicial education and court professional training, improvement of the
administration of justice in the courts of the northern Pacific, and
oversight responsibility for judicial education grants from the U.S.
Department of the Interior.
[66] Although case filings may grow over time, if the case filings in a
district court for American Samoa were similar to those in Guam and
CNMI, they would be fairly small. For example, according to the
Administrative Office for the U.S. Courts, 2007 Annual Report of the
Director: Judicial Business of the United States Courts, 38 civil and
169 criminal cases were filed in Guam in fiscal year 2007. For the same
period in CNMI, 47 civil and 28 criminal cases were filed. By
comparison, the District of Wyoming had the lowest total case filings
of any district in the 50 states in fiscal year 2007, with 289 civil
and 312 criminal filings.
[67] American Samoa would have to be a separate division within the
U.S. District Court of Hawaii as a means to maintain separate jury
pools between American Samoa and Hawaii.
[68] 18 U.S.C. § 3231.
[69] 28 U.S.C. §§ 3001, 3002(2).
[70] This rental cost was based on an estimated cost of construction of
approximately $56 million, assuming a 20-year amortization of the
investment.
[71] The housing plan, developed for the proposed new CNMI courthouse
for fiscal year 2009, includes about 68,000 rentable square feet for
one courtroom, judge's chambers, and office space for the district
court operations, U.S. Probation and Pretrial Services, the U.S.
Attorney's Office, and USMS.
[72] OMB Circular A-11, Appendix B requires that federal agencies fund,
with up-front payments, the cost of inherently governmental features of
the space they lease.
[73] Pro se law clerks assist judges in the management of cases filed
by litigants representing themselves.
[74] Because reliable estimates of the number of civil and criminal
cases were not known, AOUSC officials based their estimates on the
actual costs obligated in 2007 for the District Court of the Northern
Mariana Islands. Further, AOUSC officials stated that some district
court costs may vary by caseload.
[75] GSA officials estimated that a courthouse in American Samoa would
require about 32,000 rentable square feet, based on GSA's build-to-suit
lease prospectus developed for a new courthouse in CNMI.
[76] Because the number of civil and criminal cases was unknown, AOUSC
officials based their personnel and benefits and operational and
information technology cost estimates on a percentage of the actual
costs obligated in 2007 from the Probation and Pretrial Services Office
in Guam, which is a consolidated operation covering both district
courts located in CNMI and Guam. AOSUC officials determined the
percentage of resources used to support the District Court for the
Northern Mariana Islands as a basis for the estimate of costs for an
office in American Samoa.
[77] GSA estimated that probation and pretrial services would need
about 5,500 rentable square feet for its operations in American Samoa,
based on the CNMI build-to-suit lease prospectus.
[78] See 18 U.S.C. § 3006A.
[79] Because reliable estimates of the number of criminal and civil
cases for American Samoa were not known, the U.S. Attorney's Office
nonpersonnel cost data for scenario 1 were estimated based on fiscal
year 2005 and fiscal year 2006 obligation data for the U.S. Attorney's
Office for the District of Guam. This is a small U.S. Attorney's Office
and is responsible for the federal district courts in CNMI and Guam.
EOUSA officials told us that CNMI district court obligations could not
be separated out from Guam obligation data.
[80] GSA estimated that the U.S. Attorney's Office would need about
15,800 rentable square feet for its operations in American Samoa, based
on the CNMI build-to-suit lease prospectus.
[81] Additionally, USMS indicated that it may be necessary to pay
incentive bonuses to attract personnel to American Samoa, as well as
permanent change of duty station relocation costs.
[82] Cost data are partially based on prisoner transportation costs in
the USMS office in Guam.
[83] If radio towers and supporting radio infrastructure do not already
exist in American Samoa, then USMS officials said this may result in
additional costs.
[84] Based on GSA's proposed CNMI courthouse floor plan, USMS would be
allocated 13,935 rentable square feet. If rent ranged from $80 to $90
per square foot, USMS' rent could range between $1.1 and $1.3 million.
[85] If federal defendants were detained pretrial at the Bureau of
Prisons' detention facility in Hawaii, there is no charge to USMS for
housing. Given the capacity of this facility, USMS officials told us
that it may be able to absorb any American Samoan defendants. If
necessary, other detention facilities have been available for use
(e.g., the San Bernardino County, California jail, the Agana, Guam
detention facility, CNMI Department of Corrections, and Guam
Penitentiary). Assuming up to 50 American Samoan defendants in USMS
custody per year, for an average of 60 days each, the cost of housing
at these facilities may range up to $0.2 million based on fiscal year
2007 costs.
[86] Defendant transportation costs may vary depending upon the number
of court productions required.
[End of section]
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