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Appellate court may not have jurisdiction over ASG- BoH appeal in Marisco case

The federal Appellate Court in San Francisco has consolidated into one case the American Samoa Government’s two appeals of the Honolulu federal court’s decision surrounding its legal battle with Bank of Hawai’i.


However, the appeal appears to be facing a legal issue, which ASG must address, or it will be dismissed.


ASG had appealed the lower court’s decision to garnish more than $800,000 held at BoH to pay the debt owed to Honolulu-based Marisco Ltd. The company had provided mainly shipyard services to the government.


ASG also appealed the lower court’s ruling to have the garnished funds deposited with the federal court registry.


Earlier this month, the Ninth Circuit Court of Appeals consolidated the two cases into one after seeking comments and briefings from all parties, who agreed to the consolidation, with Marisco and BoH, saying that they agree as long as ASG does not provide a lengthy argument in the brief.


The appeals court then ordered ASG to file its opening brief on or before May 28 followed by Marisco and BoH 30-days later.


However, a new order issued by the appeals court on Tuesday this week states that a “review of the record suggests that this court may lack jurisdiction over the appeal because the notice of appeal was not filed within 30 days" after the lower court’s order was entered on Dec 3rd.


The order cited provisions of federal appeal law pertaining to the timely filing of appeals.


“Within 21 days after the date of this order, appellant [ASG] shall move for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction,” the order states.


“Appellant shall specifically address whether the government of American Samoa is an agency of the United States,”  under provisions of the Federal Rule of Appellate Procedure, it says.


However, “If appellant elects to show cause, a response may be filed within 10 days after service of the memorandum. If appellant does not comply with this order, the Clerk shall dismiss this appeal” pursuant to provision of the Ninth Circuit Rule, according to the order which also states that initial schedule of briefs to be filed in the appeal is suspended pending further order of the court.


The appellate court’s order comes at a time when Gov. Lolo Matalasi Moliga has made public his directive to the new attorney general “to cease and desist in all litigation" involving Marisco Ltd, as plaintiff, ASG as defendant and BoH as garnishee of ASG funds that were deposited with BoH. 


Lolo said this refers to both in the federal court and the High Court of American Samoa. At this point, it is possible the appellate court’s order is a moot point, due to the governor’s directive.


Last week, Gov. Lolo Matalasi Moliga wrote to the BoH chief operating officer David W. Thomas seeking a 12-month delay. In his letter, he notes his directive to the new attorney general, writing, “My administration took this step because we do not believe the actions of our predecessors reflect the way we should be doing business.” He then apologized to the bank, on behalf of the people of American Samoa and his administration for the past administration’s actions. (See story about BoH letter in Tuesday, Feb. 12, 2013 issue of Samoa News)