Short Summary: The doctrine of sovereign immunity bars the award of attorney fees against the Government of Guam except under very limited and specific circumstances.
Analysis: A unanimous Supreme Court of Guam extended its holding from an earlier decision that parties who win cases against Government of Guam agencies are barred from being awarded attorney fees by the doctrine of sovereign immunity. In Gange v. Gov’t of Guam, 2017 Guam 2 (Opinion available here), the court was asked to apply its decision in Bautista v. San Agustin, 2015 Guam 23 (Opinion available here), which held that sovereign immunity barred an award of attorney fees against the Government of Guam Retirement Fund.
In Bautista, the plaintiff asked the court to award him attorney fees in a case that he had won against the Retirement Fund. The Court started with the general rule that the Government of Guam “enjoys broad sovereign immunity” which have only been waived in specific circumstances. The Court then addressed whether (1) there was a statutory basis for an award of attorney fees; and (2) whether equity required an award of attorney fees. The Court found that none of those grounds supported an award of attorney fees.
More directly related to the issue in Gange, the Court addressed two other issues: (3) whether the doctrine of sovereign immunity did not apply because the Retirement Fund was acting in a “proprietary” instead of government function; and (4) whether the Court could award attorney fees because the Retirement Fund held private funds.
The Court rejected the plaintiff’s argument that the Retirement Fund was performing a “proprietary function.” “Proprietary functions are those conducted in the government’s private capacity, for the benefit of only of those within its corporate limits, and not as an arm of the government.” Bautista, 2015 Guam 23 ¶ 34. The Court looked at 3 factors: (1) whether the action taken was expressly authorized by statute; (2) whether the action was necessary for the government entity to perform its duties; and (3) whether the government entity fulfilled a government purpose. Applying those factors, the Court held that the Retirement Fund was performing a governmental function and, therefore, the doctrine of sovereign immunity applied.
Finally, the Court rejected the plaintiff’s argument that the award of attorney fees was appropriate under the “common fund” exception to sovereign immunity. The general theory was that the Retirement Fund held money that belonged to its participants, not public funds. The Court noted that there was a split in authority from a Colorado Supreme Court decision and federal cases. The Court ultimately adopted the federal position that the doctrine of sovereign immunity applied regardless of if the funds were “public funds” as long as the government was in possession of the funds.
In Gange, the Court was asked to decide whether its holding in Bautista also barred an award of attorney fees against the Guam Ancestral Lands Commission. The Court held that there was no express waiver of sovereign immunity against the Ancestral Lands Commission and that none of the other exceptions to sovereign immunity – the common fund doctrine and the performance of a proprietary function – applied in Gange. Based on a fairly straight-forward application of its holding in Bautista, the Court concluded that the plaintiffs could not be awarded attorney fees against the Ancestral Lands Commission.
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