Sovereign Immunity for Public Airport Operations (2015)

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ACRP LRD 24 Sovereign Immunity for Public Airport Operators 160 III. PART B: TERRITORIES AMERICAN SAMOA Summary: The Territory of American Samoa has partially abrogated sovereign immunity for airports, which are treated similarly to other governmental entities. When performing discretionary functions, such as making policy decisions, airports are granted immunity. When performing proprietary functions, such as business-related leases or commercial activities, airports do not have immunity. Even if subject to liability, there is a cap of $5,000 for property damage and $20,000 for personal injury. Punitive damages are available for claims involving death. There is a strict notice requirement to the Attorney General prior to making a claim, and there is a 2-year statute of limitations. o Statutory Authority: AM. SAMOA CODE ANN. § 43.1201 to 43.1235 (2011). Governmental Tort Liability. AM. SAMOA CODE ANN. § 43.1205 (2011). The America Samoa Government is liable in the same manner and to the same extent as a private person would be under the circumstances. But it is not liable for punitive damages in most cases. AM. SAMOA CODE ANN. § 43.1203 (2011). Claims may not be brought for: • Acts or omissions of employees pursuant to any law. • Exercise of discretionary functions. • Intentional torts. o Relevant Case Law: K.MJ.D.C. v. Marine Railway, ASR (Am. Samoa 1979). • Discretionary function exemption designed for policy decisions. Tauiliili v. Am. Sam. Gov’t, 13 A.S.R. 2d 61 (Am. Samoa 1989). • In a civil action for personal injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his office or employment, the government is liable in the same manner and to the same extent as a private individual under like circumstances, subject to a number of specific exceptions. AM. SAMOA CODE ANN. § 43.1203(a) (2011). Randall v. Am. Sam. Gov't, 19 A.S.R. 2d 111 (Am. Samoa 1991). • Tort Liability Act provides that no tort action may be instituted against the America Samoa Government unless the claimant has first presented the claim in writing to the Attorney General, and the claim has been finally denied by the Attorney General. • A prospective plaintiff's "claim" under the Government Tort Liability Act does not accrue, and therefore the 2-year limitation period does not begin to run, until after the claim has been finally denied by the Attorney General. • Because an injured person cannot sue until he has exhausted his administrative remedy, the right to sue under the Government Tort Liability Act is absolutely barred by failure to bring an administrative

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 161 claim within a 2-year period from the date of injury, and the Attorney General has a reasonable time in which to review such claim. AM. SAMOA CODE ANN. §§ 43.1204-43.1205 (2011). • The America Samoa Government waived the statute of limitations applicable to the Government Tort Liability Act when it [filed an answer admitting jurisdiction, proceeded with pre-trial matters and full discovery, and obtained limited relief from the court]. AM. SAMOA CODE ANN. § 43.1204 (2011). Utu v. Nat’l Pac. Ins. Co., 9 A.S.R. 2d 88 (Am. Samoa 1988). • Under statute providing that minors shall have 1 year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within 1 year after attainment of majority or appointment of a guardian ad litem, notwithstanding the 2-year statute of limitations otherwise applicable to actions against the government. AM. SAMOA CODE ANN. § § 43.0126, 43.1204 (2011). In re Faoato v. Gov’t of Am. Sam., ASR (Am. Samoa 1979). • Prerequisite to tort liability action against the government of American 5amoa is presentation of claim to Attorney General. Mataipule v. Tifaimoana P’ship, Ltd. (Mem), 14 A.S.R. 2d 100 (Am. Samoa 1990). • For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for 3 months. AM. SAMOA CODE ANN. § 43.1205(a) (2011). Bryant v. Sw. Marine of Sam., Inc., 23 A.S.R. 2d 55 (Am. Samoa 1992). • Although the Attorney General's decision on an administrative claim is final and conclusively binding on all America Samoa Government officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing the America Samoa Government from raising a jurisdictional issue at any stage of future litigation. Lutu v. Am. Sam. Gov’t, 7 A.S.R. 2d 61 (Am. Samoa 1988). • Statute immunizing government employees from personal liability for wrongful acts committed within the scope of their employment bars suit against employee only after it has been established that the wrongful conduct underlying the claim was committed within the scope of employment. o Monetary Limits and Caps: There are caps on damages at $5,000 for property damage and $20,000 for personal injury. AM. SAMOA CODE ANN. § 43.1203 (2011). Moreover, punitive damages are allowed only when there is a death and the law specifically provides for punitive damages. o State-Specific Aspects: Samoa actually has a rather strict and rigid method for bringing suits against the government. Claims must first be presented to the Attorney General for review. If he decides to settle or otherwise dispose of the claim, it can be handled out of court. However, if the Attorney General denies or ignores the claim, then and only then can a claimant proceed to court against the government.

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 162 All airports in Samoa are owned by the ASG. o Waiver of Immunity: The America Samoa Government is liable both directly and vicariously for tortious conduct. Since, all the airports in American Samoa are owned by the America Samoa Government, then the government becomes liable for tortious activity at airports, whether the result of a dangerous condition or an employee’s actions. o Other: There is a noticeable lack of case law on the issue of airports. This most likely results from the strict notice requirements—the Attorney General likely decides to settle most of these claims against the government. Insurance settlements may also be a contributing factor. o Process: AM. SAMOA CODE ANN. § 43.1205 (2011). Claims must first be presented to the Atty. General for review. If the Attorney General so decides, the case may be settled. If denied, then the cause may proceed to court. AM. SAMOA CODE ANN. § 43.1204 (2011). There is a 2-year statute of limitations on claims against the government AM. SAMOA CODE ANN. § 43.1212 (2011). There are caps on damages at $5,000 for property damage and $20,000 for personal injury. DISTRICT OF COLUMBIA Summary: The District of Columbia has partially abrogated sovereign immunity for airports ,which are treated similarly to other governmental entities. When performing discretionary functions, such as making policy decisions, airports are granted immunity. There are no statutory caps on damage awards. There is a 3-year statute of limitations. o Statutory Authority D.C. CODE §§ 2-401 to 2-431 (2014). Claims Against the District. D.C. CODE § 2-402 (2014). Settlement of Claims Against District. Empowers the Mayor to settle claims up to the statutory limits. D.C. CODE § 9-801 (2014). Construction and Operation of Airport Authorized. ”The Administrator of the Federal Aviation Agency (hereinafter referred to as the ’Administrator’) is hereby authorized and directed to construct, protect, operate, improve, and maintain within or in the vicinity of the District of Columbia, a public airport (including all buildings and other structures necessary or desirable therefor).” D.C. CODE § 1-206.01 (2014). Retention of Constitutional Authority. “Notwithstanding any other provision of this chapter, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 163 to the Council by this chapter, including legislation to amend or repeal any law in force in the District prior to or after enactment of this chapter and any act passed by the Council. o Relevant Case Law: LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996). • The District of Columbia is not a state for the purposes of the 11th Amendment. Id. at 1394 n.4. McKethean v. Wash. Metro. Area Transit Auth., 588 A.2d 708 (D.C. 1991). • “Whether an activity is proprietary or governmental is a question of federal law because the WMATA Compact is an Act of Congress.” Id. at 712. • “[T]he issue of WMATA's immunity comes down to a question of whether its alleged acts of negligence are characterized as discretionary decisions or ministerial execution of those decisions.” Id. at 713. • “[T]he design and planning of a transportation system are governmental activities because they involve quasi-legislative policy decisions which are discretionary in nature and should not be second- guessed by a jury.” Id. at 714. • There is a difference when the function was discretionary versus ministerial. Negligent operation of transportation system and implementation of system design are proprietary functions for which the Washington Metropolitan Area Transit Authority (WMATA) is not immune. Id. at 715. o Monetary Limits and Caps: There are no statutory limits. o Waiver of Immunity: D.C. CODE § 1-109(d) (2014). Limitations. “Nothing in this section shall be construed as a waiver of sovereign immunity, or as limiting any other defense or immunity that would otherwise be available to the United States, the District of Columbia, their agencies, officers, employees, or agents.” Wade v. D.C., 310 A.2d 857, 860 (1973). District of Columbia is “immune from suit [for torts of agents under doctrine of municipal immunity] only if act complained of was committed in exercise of discretionary function, if committed in the exercise of a ministerial function.” o Process: D.C. CODE ANN. § 2-401 (2014). Service of Process. In suits commenced after June 20, 1874, against the District of Columbia, process may be served on the Mayor of the District of Columbia, until otherwise provided by law. D.C. CODE ANN. § 2-402 (2014). Settlement of Claims and Suits Against District. (a) The Mayor of the District of Columbia is empowered to settle, in his discretion, claims and suits, either at law or in equity, against the District of Columbia. D.C. CODE ANN. § 12-301 (2014). Limitation of time for bringing actions.

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 164 Generally, statutes of limitations are 3 years from the time that the right to maintain the action accrues. There is no limitation on actions brought by the District. D.C. CODE ANN. § 12-309 (2014). Actions Against District of Columbia for Unliquidated Damages; Time for Notice. “An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.” GUAM Summary: The Territory of Guam has partially abrogated sovereign immunity for airports, which are treated similarly to other governmental entities. When performing discretionary functions, such as making policy decisions, airports are granted immunity. Immunity does not apply to contracts or tort actions. Even if subject to liability, there is a cap of $100,000 in an action for wrongful death and not more than $300,000 in any other tort action. There is no liability for tort damages that exceed insurance coverage. All claims must be filed with the Claims Officer, and action may be made after claimant is notified of rejection of claim and 30 days has elapsed since claim was filed. o Statutory Authority: 1 GUAM CODE. ANN. § 405, Immunity to Suit. “The authority and power to waive the immunity to suit of the government of Guam, or any of its authorities, departments, agencies, or instrumentalities is vested solely in the Guam Legislature.” 5 GUAM CODE ANN. §§ 6101 to 6404 (2014). Governmental Claims Act. • 5 GUAM CODE ANN. § 6102 (2014). Coverage of Chapter. Applies to Airport. • 5 GUAM CODE ANN. § 6105(c) (2014). Waiver of Immunity. “The Government of Guam shall not be liable for claims arising from an exercise of discretion in making policy.” 12 GUAM CODE ANN. §§ 1105(a), (c) (2014). The Guam Airport Authority operates and maintains the airports. o Relevant Case Law: Sumitomo Constr., Inc. v. Gov’t of Guam, 2001 Guam 23 (Guam 2001). • “The government of Guam enjoys broad sovereign immunity.” Id. at *8. Pac. Rock Corp. v. Perez, 2005 Guam 15 (Guam 2005). • Sovereign immunity is an unwaivable jurisdictional issue. o Monetary Limits and Caps:

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 165 5 GUAM CODE ANN. § 6301 (2014). Maximum Limits of Governmental Liability. “The government of Guam, in the case of line agencies, shall be liable in tort for not more than $100,000 in an action for wrongful death, nor for more than $300,000 in any other tort action.” 5 GUAM CODE ANN. § 6401 (2014). Claims Fund Created. “The Government Claims Fund is hereby created and established…for the purpose of paying tort claims.” 12 GUAM CODE ANN. § 1113(a) (2014). Government is not liable for tort damages that exceed insurance coverage. o Waiver of Immunity: 5 GUAM CODE ANN. § 6105(a), (b) (2014). Waiver of Immunity. “The Government of Guam hereby waives immunity from suit” except for contracts and torts. o Process: 5 GUAM CODE ANN. § 6201 (2014). Procedure for Filing Claims. • All claims shall be filed in duplicate with the Claims Officers responsible for the department or agency against which the claim is made. 5 GUAM CODE ANN. § 6206 (2014). Settlement of Claim Before Action. May be settled by Attorney General, up to claims limits. 5 GUAM CODE ANN. § 6208 (2014). Action Against the Government. Action may be made after claimant is notified of rejection of claim, and 30 days has elapsed since claim was filed. NORTHERN MARIANA ISLANDS Summary: The Commonwealth of the Northern Mariana Islands has partially abrogated sovereign immunity for airports, which are treated similarly to other governmental entities. When performing discretionary functions, such as making policy decisions, airports are granted immunity. When performing proprietary functions, such as business-related leases or commercial activities, airports do not have immunity. Even if subject to liability, there is a cap of $50,000 in an action for wrongful death, and in other torts, the cap is $100,000 per person, or $200,000 per occurrence. There is a 2-year statute of limitations. o Statutory Authority: 7 N. MAR. I. CODE § 2201 (2013). Government Liability Act. 7 N. MAR. I. CODE § 2204 (2013). Exceptions. No liability for discretionary functions. 7 N. MAR. I. CODE § 2208(a) (2013). Exclusiveness of Remedy. “The authority of any Commonwealth agency to sue or be sued in its own name shall not be construed to authorize suits against such agency or its employees on claims which are cognizable under this Title and the remedies provided by this Title in

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 166 such cases shall be exclusive for claims against all branches of the Commonwealth government.” 7 N. MAR. I. CODE § 2211(a) (2013). Extension of Limitation on Tort Liability. “7 CMC §§ 2202, 2203, 2204, 2206, 2207, 2251, 2252, and 2253 shall apply to public corporations, boards, and commissions organized and existing under and pursuant to the laws of the Commonwealth, to the same extent as the sections apply to the Commonwealth itself. (b) 7 CMC § 2202(a) shall apply to government employees acting within the scope of their office or employment, to the same extent that the subsection applies to the Commonwealth government, regardless of whether the employee is sued in his official capacity or as an individual.” o Relevant Case Law: Marine Revitalization Corp. v. Dep’t. of Land and Nat’l Res., No. 2009-SCC- 0016-CIV (N. Mar. I. 2011). • “[T]he government cannot waive its sovereign immunity and become liable for interest.” Fleming v. Dep’t. of Public Safety, 837 F.2d 401, 402 (9th Cir. 1988). • “[T]he Commonwealth does not enjoy eleventh amendment immunity from suits.” Norita v. Commonwealth of the N. Mar. Islands, 331 F.3d 690 (9th Cir. 2003). • Court provides an extended discussion of the Fleming case and the inapplicability of the 11th Amendment to N. Mariana Islands. Sablan Constr. Co. v. Gov’t. of the Trust Territory of the Pac. Islands, 526 F. Supp. 135 (D. N. Mar. I. 1981). • Foreign Sovereign Immunities Act does not apply to Territories. Oden v. N. Marianas College, 6 N. Mar. I 601 (N. Mar. I. 2003). • Limitations period runs from the date the district court dismisses the supplemental claims and not the date of final disposition of the entire action. Bank of Saipan v. Carlsmith Ball Wichman Case and Ichiki, No. 98-0973 (N. Mar. I. Commw. Super. Ct. 1999). • Plane crash case established that 2-year statute of limitations applies to attorney malpractice. o Monetary Limits and Caps: 7 N. MAR. I. CODE § 2202(a) (2013). Limitation of Tort Liability. The Commonwealth government shall be liable in tort for damages arising from the negligent acts of employees of the Commonwealth acting within the scope of their office or employment; provided that: • (1) The Commonwealth and any employees engaged in the performance of services on behalf of the Commonwealth shall not be liable in tort for more than $50,000 in an action for wrongful death. Liability in other tortious occurrences shall be limited to $100,000 per person, or $200,000 per occurrence. • (2) The Commonwealth shall not be liable for interest prior to judgment, court fees, witness fees, or for punitive damages.

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 167 • (3) If the Commonwealth is insured for a greater amount, the governmental liability shall be the same as the insurance coverage. o Waiver of Immunity: 7 N. MAR. I. CODE § 2201 (2013). Government Liability Act. o Process: 7 N. MAR. I. CODE § 1101 (2013). Application of Chapter. “This chapter applies to service of process in all actions and proceeding properly before or in a court of jurisdiction within the Commonwealth including the Commonwealth Trial Court, a Commonwealth appeals court, and the United States District Court for the Northern Mariana Islands.” 7 N. MAR. I. CODE § 1104(a) (2013). Manner of Service. Service shall be made by leaving a certified copy with the Attorney General, then to the defendant. 7 N. MAR. I. CODE § 2202(e) (2013). “There shall be no jury trials of tort actions against the Commonwealth or its employees unless requested, or assented to, by the Commonwealth.” 7 N. MAR. I. CODE § 2205 (2013). Settlement of Claims and Payment of Judgments. The Attorney General may compromise or settle any claim. 7 N. MAR. I. CODE § 2503 (2013). Establishes a 2-year statute of limitations for actions involving injury or death. PUERTO RICO Summary: The Commonwealth of Puerto Rico has partially abrogated sovereign immunity; however, immunity does not extend to the Puerto Rico Ports Authority. When performing discretionary functions, such as making policy decisions, airports are granted immunity. If subject to liability, there is a cap of $75,000 or $150,000 in the aggregate. Notice must be made to the Secretary of Justice within 90 days following the date in which the claimant became aware of the damages claimed. Otherwise, the same statutes of limitations apply as set forth in the relevant applicable law, which varies from 2 to 12 years depending on specific aspects of the matter. o Statutory Authority: P.R. LAWS ANN. tit. 23, § 336 (2011). Powers. The purposes of the Authority shall be to develop and improve, own, operate, and manage any and all types of air and marine transportation facilities and services…” and include the right “to sue and be sued.” P.R. LAWS ANN. tit. 32, § 3077 (2011). Claims and Suits Against the Commonwealth; Authorization. For actions for damages to real property and civil claims up to $75,000 or $150,000 in the aggregate. [Note: This does not apply to the Ports Authority; see Canadian Transp. Co. case below.] P.R. LAWS ANN. tit. 32, § 3077(a) (2011). Claims and Suits Against the Commonwealth. Notices required within 90 days of accrual, to the Secretary of Justice.

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 168 P.R. LAWS ANN. tit. 32, § 3081 (2011). Claims and Suits Against the Commonwealth—Unauthorized Activities. Exempts actions for discretionary functions from suit. P.R. LAWS ANN. tit. 32, § 3082 (2011) No punitive damages and no interest. P.R. LAWS ANN. tit. 32, § 3085 (2011). Suits against Commonwealth Officers and Employees. “Every official, ex-official, employee or ex-employee of the Commonwealth of Puerto Rico who is sued for damages in his personal capacity, when the cause of action is based on alleged violations of the plaintiff's civil rights, due to acts or omissions committed in good faith, in the course of his employment and within the scope of his functions, may request the Commonwealth of Puerto Rico to provide him with legal representation, and to subsequently assume the payment of any judgment that may be entered against his person.” o Relevant Case Law: Canadian Transp. Co. v. P.R. Ports Auth., 333 F. Supp. 1295 (D. P.R. 1971). • “The Puerto Rico Ports Authority is not the alter ego of the Commonwealth of Puerto Rico and the Commonwealth's sovereign immunity does not extend to it.” Id. at 1299. • In determining if the sovereign immunity of the Commonwealth applies to a government agency, no one factor prevails over all others, but two of the most important are the source of the funds to pay a judgment favorable to the plaintiff and whether the agency has power to sue and be sued. Id. at 1296. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). • “States and state entities that claim to be ‘arms of the State’ may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity.” Id. at 147. P.R. v. Heckler, 745 F.2d 709 (D.C. Cir. 1984). • “The EAJA [Equal Access to Justice Act], as the government acknowledges, Brief for Appellants at 14-15, waived the federal government's sovereign immunity for attorney's fee awards encompassed under common law exceptions to the American rule, including the ’common fund’ exception.” Id. at 711 (citing 28 U.S.C. § 2412(b) (1982)). Attallah v. United States, 758 F. Supp. 81 (D. P.R. 1991). • “[T]he nature and extent of personnel supervision and airport security are discretionary determinations for which the sovereign immunity of the United States has not been waived.” Id. at 88. Orocovis Petroleum Corp. v. P.R. Ports Auth., 2010 U.S. Dist. LEXIS 106318 (D. P.R. 2010). • “[T]he Eleventh Amendment protected both ‘the state's dignitary interest’ in conferring its immunity on certain entities and the state's interest in shielding its purse.” Id. at *2.

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 169 o Monetary Limits and Caps: P.R. LAWS ANN. tit. 32, § 3077 (2011). Claims and Suits Against the Commonwealth; Authorization. Cap of $75,000 for damages to persons or property, or $150,000 if more than one party is injured. o Waiver of Immunity: P.R. LAWS ANN. tit. 26, § 2004 (2011). Liability Insurance on Public Bodies. ”The obtaining of liability insurance by the Commonwealth of Puerto Rico, its agencies or entities, and by municipalities and other political subdivisions, shall not constitute or be deemed to constitute a waiver of governmental immunity.” o Process: P.R. LAWS ANN. tit. 32, § 3077 (2011). Claims and Suits Against the Commonwealth; Authorization. “Authorization is hereby granted to sue the Commonwealth of Puerto Rico before the Court of First Instance of Puerto Rico for”…limited causes. P.R. LAWS ANN. tit. 32, § 3077(a) (2011). Claims and Suits Against the Commonwealth—Notices. • Notice must be made to the Secretary of Justice within 90 days following the date in which the claimant became aware of the damages claimed. • “No judicial action of any kind may be brought against the Commonwealth of Puerto Rico for damages caused by a culpable or negligent act of the Commonwealth, unless the written notice has been served in the form and manner and within the terms prescribed in this section, unless there is just cause therefor. This provision shall not be applicable to those cases in which the liability of the Commonwealth is covered by an insurance policy.” P.R. LAWS ANN. tit. 32, § 3080 (2011). Claims and Suits Against the Commonwealth—Procedure. “The summons and all subsequent proceedings shall be governed by the provisions of the Rules of Civil Procedure.” P.R. LAWS ANN. tit. 32, § 3083 (2011). Claims and Suits against the Commonwealth—Statute of Limitation; Interest; Punitive Damages; Costs; Actions to which Applicable; Compromise; Effect of Judgment. Neither pre- judgment interest nor punitive damages are permitted. P.R. LAWS ANN. tit. 32, § 3083 (2011). Claims and Suits Against the Commonwealth—Statute of Limitation; Interest; Punitive Damages; Costs; Actions to Which Applicable; Compromise; Effect of Judgment. “The statute of limitations fixed in the applicable laws shall prevail for the actions authorized herein.”

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 170 U.S. VIRGIN ISLANDS Summary: The U.S. Virgin Islands has partially abrogated sovereign immunity for airports, which are treated similarly to other governmental entities. When performing discretionary functions, such as making policy decisions, airports are granted immunity. When performing proprietary functions, such as business-related leases or commercial activities, airports do not have immunity. If subject to liability, there is no cap on damages. There is a 2-year statute of limitations; however, a claim must be presented to the Attorney General within 6 months after the accrual of the claim. This time limit for presenting the claim may be extended upon good cause shown. o Statutory Authority: 48 U.S.C. § 1541 (2013). Powers and Legal Status of Government; Capital and Seat of Government. “The government of the Virgin Islands shall have…the right to sue by such name and in cases arising out of contract, to be sued: Provided, That no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by subchapter III of this chapter.” V.I.C. Rev. Org. Act of 1954 § 3, 48 U.S.C. § 1561 (2013). • “The following provisions of and amendments to the Constitution of the United States are hereby extended to the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States: article I, section 9, clauses 2 and 3; article IV, section 1 and section 2, clause 1; article VI, clause 3; the first to ninth amendments inclusive; the thirteenth amendment; the second sentence of section 1 of the fourteenth amendment; and the fifteenth and nineteenth amendments; Provided, That all offenses against the laws of the United States and the laws of the Virgin Islands which are prosecuted in the district court pursuant to sections 22(a) and (c) of this Act may be had by indictment by grand jury or by information, and that all offenses against the laws of the Virgin Islands which are prosecuted in the district court pursuant to section 22(b) of this Act or in the courts established by local law shall continue to be prosecuted by information, except such as may be required by local law to be prosecuted by indictment by grand jury.” • Noticeably absent from this provision is a reference to the 11th Amendment, which has been interpreted to mean that the sovereign immunity otherwise expressed in that Amendment does not apply to the Virgin Islands. V.I.C. Rev. Org. Act of 1954 § 2(b), 48 U.S.C. § 1541(b). “The government of the Virgin Islands shall have the powers set forth in this Act and shall have the right to sue by such name and in cases arising out of contract, to be sued: Provided, That no tort action shall be brought against the government of the

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 171 Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by this Act.” V.I. CODE ANN. tit. 33, §§ 3401–3417 (2013). Tort Claims. o Relevant Case Law: Commr. of the Dep’t of Planning & Natural Res. v. Century Alumina Co., No. 05-0062 (D. V.I. 2010). • “The Virgin Islands Legislature has waived the Government's immunity for certain torts under the Virgin Islands Tort Claims Act.” Brunn v. Dowdye, S. Ct. Civ. No. 2011-0085 (Super. Ct. of V.I. 2013). • n.1. Although the Virgin Islands is not a sovereign entity in the same manner as a state, Congress has provided that “no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature.” V.I.C. Rev. Org. Act of 1954 § 2(b), 48 U.S.C. § 1541 (2013). The Virgin Islands Legislature later waived this grant of immunity to the extent set forth in the VITCA. V.I. CODE ANN. tit. 33, § 3408 (2011). Cestonaro v. United States, 211 F.3d 749 (3d Cir. 2000). • Applied the Berkovitz test to discretionary functions of V.I. governmental employees. See Berkovitz v. United States, 486 U.S. 531 (3d Cir. 1988). o Monetary Limits and Caps: V.I. CODE ANN. tit. 33, § 3402 (2011). Settlement of Tort Claims of $3,000 or Less. • Power of Governor o (a) The Attorney General, acting on behalf of the Government of the Virgin Islands, considers, ascertains, adjusts, determines, and settles any claim for money damages of $6,000 or less against the Government of the United States Virgin Islands accruing on or after July 1, 1961, for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government while acting within the scope of his office or employment, under circumstances where the Government of the Virgin Islands, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. • Presentation of claims; Time Limit. o (b) Such claim shall be presented to the Attorney General in writing by the claimant or his agent within 6 months after the act or omission constituting the basis of the claim. For reasonable cause shown, the Attorney General may extend such time limit. For property damage claims, the claim or notice of intention must be accompanied by two estimates. o Waiver of Immunity:

ACRP LRD 24 Sovereign Immunity for Public Airport Operators 172 V.I. CODE ANN. tit. 33, § 3408(a) (2011). Waiver of Immunity from Liability. “Subject to the provisions of section 3416 of this chapter, the Government of the United States Virgin Islands hereby waives its immunity from liability and action and hereby assumes liability with respect to injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government of the United States Virgin Islands while acting within the scope of his office or employment, under circumstances where the Government of the United States Virgin Islands, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. The Government consents to have the liability determined in accordance with the same rule of law as applied to actions in the courts of the Virgin Islands against individuals or corporations; Provided, That the claimant complies with the provisions of this chapter.” o Process: V.I. CODE ANN. tit. 33, § 3404 (2011). Creation of Tort Claims Fund; Annual Appropriations. “A special fund to be known as the ‘Tort Claims Fund’ shall be set aside…to pay claims in accordance with the provisions of this chapter.” V.I. CODE ANN. tit. 33, § 3409 (2011). Time of Filing Claims and Notices of Intention to File Claims. Requires claims to be filed within 2 years of time of accrual.