Graham v Federated States of Micronesia [1996] FMSC 24; 7 FSM Intrm. 529 (Chk. 1996) (23 July 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Graham v Federated States of Micronesia, [1996] FMSC 24; 7 FSM Intrm. 529 (Chk. 1996)

CHINEINA GRAHAM, MASAICHY STEPHEN,
KETHER URUNO, ASI AUPUTIW, NAMEUO PILLAS,
SANRES KATUO, TIONINS RECHY, SAIMON
CASIANO and AKEMY JAI, on behalf of themselves
and all others similarly situated,
Plaintiffs,

vs.

FEDERATED STATES OF MICRONESIA
and STATE OF CHUUK,
Defendants.

_________________________________________________

CIVIL ACTION NO. 1995-1034

ORDER

Richard H. Benson
Associate Justice

Decided: July 23, 1996

APPEARANCES:

For the Plaintiffs:
Charles Greenfield, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant (FSM):
Carole Rafferty, Esq.
Chief of Litigation
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (State of Chuuk):
Wesley Simina, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Class Actions
The mandatory notice requirements of Civil Rule 23(c)(2) do not apply to Rule 23(b)(1) and (2) actions even though the discretionary notice provisions of 23(d)(2) are applicable. Graham v. FSM, [1996] FMSC 24; 7 FSM Intrm. 529, 531 (Chk. 1996).

Civil Procedure - Class Actions
Rule 23(b)(2) certification is improper when the case is primarily one for money damages. Rule 23(b)(2) class actions do not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages, but if the predominant purpose of the suit is injunctive the fact that a claim for damages is included does not preclude certification under Rule 23(b)(2). Graham v. FSM, [1996] FMSC 24; 7 FSM Intrm. 529, 531 (Chk. 1996).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

By stipulation of the parties two classes have been certified in this action under FSM Civil Rule 23(b)(2). Class A consists of "all persons who timely filed administrative appeals of FEMA Individual Family Grant (IFG) determinations in Chuuk State, following Typhoon Owen, and who were successful on appeal but to date have not received the IFG award provided for in the appeal decision." Class B consists of "all persons who timely filed administrative appeals of FEMA Individual Family Grant (IFG) determinations in Chuuk State, following Typhoon Owen, and who never had their appeals decided upon."

On June 6, 1996, I ordered the plaintiffs to submit a proposed order, directing that notice, in both Chuukese and English complying with Civil Rule 23(c)(2), be given members of each class. The plaintiffs have asked for my reconsideration of this order on the ground that, by the terms of Rule 23(c)(2), such a notice is mandatory only for classes certified pursuant to Rule 23(b)(3). The plaintiffs are correct on this point. Gonzales v. Cassidy, [1973] USCA5 291; 474 F.2d 67, 74 n.12 (5th Cir. 1973) ("mandatory notice requirements of 23(c)(2) do not apply to (b)(1) and (2) actions even though the discretionary notice provisions of (d)(2) are applicable").

I seriously doubt, however, whether Classes A and B were properly certified under Rule 23(b)(2) instead of 23(b)(3). See, e.g., Sosna v. Iowa, [1975] USSC 4; 419 U.S. 393, 397 n.4[1975] USSC 4; , 95 S. Ct. 553, 566 n.4[1975] USSC 4; , 42 L. Ed. 2d 532, 539 n.4 (1975) ("the absence of a claim for monetary relief . .;. disclose[s] that a Rule Rule 23(b)(2) class action was contemplated"). The real relief sought by members of Class A is wholly monetary - payment of the awards already made by the administrative appeal board - although it was styled as injunctive relief - they seek an injunction ordering payment. The relief sought for Class B is both injunctive - an order that their administrative appeals be heard and determined - and monetary - that any awards be paid. Rule 23(b)(2) certification is improper when substantial damages are claimed in addition to permanent injunctive relief or where the case is primarily one for money damages, In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 762, 790 (E.D.N.Y. 1980) (Rule 23(b)(2) class actions do not "extend to cases in which the appropriate final relief relates exclusively or predominately to money damages"); Robertson v. National Basketball Ass'n, [1977] USCA2 564; 389 F. Supp. 867, 900 (S.D.N.Y. 1975) (class actions not maintainable under 23(b)(2) when money damages a significant if not enormous portion of total relief requested), but if the predominant purpose of the suit is injunctive the fact that a claim for damages is included does not preclude certification under Rule 23(b)(2), Jones v. Diamond, [1975] USCA5 1559; 519 F.2d 1090, 1100 n.17 (5th Cir. 1975), disapproved on other grounds, Gardner v. Westinghouse Broadcasting Co., [1978] USSC 121; 437 U.S. 478, 98 S. Ct. 2451, 57 L. Ed. 2d 364 (1978).

Rather than reopen the issue of class certification I will instead use my discretionary powers under Rule 23(d)(2), which applies to all class actions. Therefore, plaintiffs' counsel shall submit within ten days of entry of this order, a proposed order, approved as to form by the defendants, directing that notice of this action be given members of each class. A proposed notice, or notices, shall accompany the proposed order. The proposed notice(s) shall be in both English and Chuukese. Plaintiffs shall include in the notice the information that would be required by Civil Rule 23(c)(2) if it applied.