August 8, 2026
Palikir, Pohnpei — The resignation of Lucas Cupps as the FSM’s first Independent Prosecutor has triggered a process requiring the judiciary to appoint an Acting Independent Prosecutor within 180 days, even as questions have arisen over whether two pending Supreme Court cases involving Cupps and the newly created office should continue.
Cupps resigned effective July 31, the same day FSM Supreme Court Associate Justice Chang B. William issued a ruling finding that Cupps was constitutionally required to take an oath of office, that the oath he took while in the United States was invalid, and that the “de facto officer” doctrine could not be used under the circumstances to validate his exercise of the office.
The ruling followed a July 29 consolidated hearing involving two cases: Cupps v. Nakanaga et al., Civil Action 2026-004, and Mori v. Cupps, Civil Action 2026-005. The court said separate declaratory judgments would be issued in the cases and ordered additional briefing on whether further proceedings were necessary.
Cupps’ resignation has now added another issue for the court to consider.
An FSM Department of Justice official told The Kaselehlie Press that under the constitutional amendment establishing the Independent Prosecutor, Cupps’ resignation requires the judiciary to appoint an Acting Independent Prosecutor.
The official said the continuing vacancy in the position of FSM Supreme Court Chief Justice does not prevent that process from occurring. Associate Justices serving in an acting capacity as Chief Justice have the authority to carry out that responsibility, he said.
That interpretation is also reflected in two notices Cupps’ attorney, Salomon Saimon, filed with the Supreme Court following the resignation.
In Cupps v. Nakanaga et al., Saimon notified the court that Cupps resigned July 31 but argued that the concerns raised in the complaint remain unresolved regardless of who serves as Independent Prosecutor. His filing says the Acting Chief Justice has 180 days to appoint an Acting Independent Prosecutor and asks the court for guidance on further scheduling, including the possibility of proceeding with discovery.
In Mori v. Cupps, Saimon similarly informed the court of the resignation and said he would remain counsel of record without payment until an Acting Independent Prosecutor is appointed. He wrote that the new officeholder could then decide whether to retain him and how to proceed. Saimon expressed his own opinion that the legal questions raised in the complaint still need to be decided by the court.
The filings therefore do not establish that the litigation will continue. Once appointed, an Acting Independent Prosecutor could decide whether to pursue the case Cupps brought against Secretary of Finance and Administration Rose Nakanaga and other national government officials.
The Department of Justice official told The Kaselehlie Press that Cupps’ resignation has also renewed questions of mootness—whether an actual controversy remains for the court to decide now that Cupps no longer occupies the office.
The court has not yet ruled on that question.
The uncertainty is the latest development in a series of disputes surrounding the FSM’s first attempt to put into operation the Office of the Independent Prosecutor, an office created through amendment of the FSM Constitution.
The amendment, originating with the Fourth FSM Constitutional Convention and subsequently approved by voters, established an Independent Prosecutor and created procedures for filling the office. President Wesley Simina nominated Cupps, and FSM Congress subsequently confirmed him.
The constitutional provisions also establish an alternative appointment process under circumstances in which the President does not make a required nomination. That process assigns a role to the Chief Justice. The FSM has been without a permanent Chief Justice for some time, but according to the Department of Justice official, an Associate Justice acting as Chief Justice possesses the same authority for purposes of appointing an Acting Independent Prosecutor following a vacancy.
Cupps’ nomination and congressional confirmation were not the source of the dispute that eventually reached the Supreme Court.
Instead, difficulties arose over funding for the newly created office and how an Independent Prosecutor could comply with national government financial accountability requirements without compromising the confidentiality and independence of criminal investigations.
FSM Congress appropriated $250,000 for the Office of the Independent Prosecutor. The Department of Finance and Administration, however, required the office to comply with the FSM Financial Accountability Standards before releasing those funds.
Those requirements included submission of Project Control Documents for funding requests.
Cupps argued that applying the normal financial procedures to an independent criminal prosecutor could compromise the very independence the constitutional amendment was intended to establish. He maintained that providing information about expenditures associated with investigations could reveal to officials in other branches of government whom his office was investigating and what it was investigating, potentially providing opportunities to interfere with those investigations.
Cupps instead sought release of the office’s entire $250,000 appropriation into an imprest account under his control. He proposed that a local FSM accounting firm account for the expenditure of those public funds, with reporting sufficiently general that financial accountability could be maintained without disclosing confidential investigative information.
The national government maintained that appropriated public funds could not be released without compliance with established financial accountability requirements.
The disagreement left the new office without access to its appropriated funding and eventually resulted in litigation involving Cupps, Nakanaga, President Simina and other national government officials.
Cupps also remained outside the FSM after his confirmation. He said he feared for his safety if he returned following his appointment as Independent Prosecutor.
As those disputes continued, a separate question emerged concerning whether Cupps had taken the oath constitutionally required before exercising the authority of the office.
The FSM Constitution requires public officials to take an oath to uphold, promote and support the Constitution and laws of the FSM upon assuming office.
Cupps argued that existing statutory oath provisions had not been amended to specifically include the newly created Independent Prosecutor and that legislation establishing the office did not separately prescribe an oath.
The Supreme Court rejected that argument.
William found that although the Independent Prosecutor is not specifically named in the existing oath statute, the prosecutor is nevertheless a public officer and the head of a national government office and therefore subject to the Constitution’s mandatory oath requirement.
The court also found that the oath Cupps did take was invalid.
Cupps took the oath in the presence of a Kansas City notary public. The court found that the notary lacked authority under FSM law to administer an oath of office to an FSM official and that the oath was taken outside the territorial jurisdiction of the FSM. The court concluded that the oath was therefore a nullity.
The court further rejected application of the de facto officer doctrine, a legal principle that can under some circumstances preserve official actions taken by a person exercising the functions of an office despite a defect in that person’s legal qualification to hold it. William found that the doctrine could not overcome the absence of the constitutionally required oath.
Cupps’ resignation on the day of the ruling has now shifted the immediate question from whether he could continue exercising the powers of Independent Prosecutor to what happens to the office—and the litigation—without him.
Saimon’s notices ask the court to continue calendaring the cases while an Acting Independent Prosecutor is selected. In the Nakanaga case, he argues that the underlying concerns do not disappear merely because Cupps resigned.
But that is Saimon’s position, not yet the court’s determination.
The Acting Independent Prosecutor, once appointed, could also take a different view and decide not to continue the litigation Cupps initiated. Meanwhile, the court must determine whether Cupps’ resignation has rendered any of the pending issues moot or whether legal questions concerning the office remain appropriate for judicial determination.
The result is that two questions now hang over an office that has yet to become fully operational: who will be appointed Acting Independent Prosecutor, and which, if any, of the legal battles begun during Cupps’ tenure will survive his departure.
Those answers could play a significant role in determining how the constitutional office envisioned by FSM voters will function in practice.
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