Emerenciana Peter-Palican v. Government of the Commonwealth

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EMERENCIANA PETER-PALICAN,  Plaintiff-Appellee, v. GOVERNMENT OF THE No. 10-17153 COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; BENIGNO R.  D.C. No. 1:07-cv-00022 FITIAL, Governor of the OPINION Commonwealth of the Northern Mariana Islands, in his official capacity, Defendants-Appellants.  Appeal from the United States District Court for the District of the Northern Mariana Islands John C. Coughenour, District Judge, Presiding

Argued February 16, 2012 Honolulu, Hawaii

Submission Deferred March 12, 2012 Resubmitted August 15, 2012

Filed August 22, 2012

Before: Alfred T. Goodwin, Stephen S. Trott, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Trott

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9609 COUNSEL

Gilbert J. Birnbirch, Office of the Attorney General, Saipan, MP, for the defendants-appellants.

Douglas F. Cushnie, Saipan, MP, for the plaintiff-appellee.

OPINION

TROTT, Circuit Judge:

The Commonwealth of the Northern Mariana Islands and Governor Benigno R. Fitial (collectively, “the Common- wealth”) appeal the district court’s judgment in favor of plain- tiff Emerenciana Peter-Palican. Peter-Palican alleges that she was terminated without cause from her position as Special Assistant to the Governor for Women’s Affairs in violation of Article III, section 22 of the Commonwealth Constitution. The district court agreed, determining that Peter-Palican had a property interest in continued employment as the Special Assistant and was terminated without due process by the incoming governor.

Because the resolution of this case requires an interpreta- tion of the Commonwealth Constitution, we certified ques- tions to the Commonwealth Supreme Court and have now received its answer. Based on the meaning of Article III, sec- tion 22 as determined by the final arbiter of Commonwealth law, we hold that Peter-Palican did not have a protected inter- est in continued employment beyond the term of the governor who appointed her. Therefore, her termination without cause did not violate the Due Process Clause, and the district court’s judgment cannot stand.

I

The relevant facts of this case are set forth in our certifica- tion order, Peter-Palican v. Government of Northern Mariana

9610 PETER-PALICAN v. NORTHERN MARIANA ISLANDS Islands, 673 F.3d 1013 (9th Cir. 2012). In brief, Peter-Palican was appointed as Special Assistant to the Governor for Women’s Affairs in April 2002 by then-Governor Juan Babauta. Id. at 1015. Governor Fitial defeated Babauta in the 2005 gubernatorial race, and shortly thereafter Acting Gover- nor Timothy Villagomez informed Peter-Palican that her employment had ended upon the change in administration and asked her to leave; there was no allegation that Peter-Palican had done anything wrong or had engaged in conduct consti- tuting “cause” for her termination. Id.

II

Article III, section 22 of the Commonwealth Constitution describes the position of the Special Assistant for Women’s Affairs and states, “The special assistant may be removed only for cause.” N. Mar. I. Const., art. III, § 22 (“section 22”). Peter-Palican sued the Commonwealth under 42 U.S.C. § 1983, arguing that section 22 protected her against termina- tion without cause even by a new administration. Peter- Palican also asserted claims of retaliation, breach of contract, and estoppel.

After granting partial summary judgment to Peter-Palican and presiding over a bench trial, the district court entered judgment in favor of Peter-Palican, holding that (1) under sec- tion 22, Peter-Palican had a property interest in continued employment even beyond the term of the governor who appointed her, and (2) her termination without cause therefore violated the Due Process Clause. Peter-Palican, 673 F.3d at 1017. The district court ordered the Commonwealth to rein- state Peter-Palican “to a Commonwealth government position at a salary equal to or greater than that she had as Special Assistant for Women’s Affairs.” Id. Recognizing that Peter- Palican could not recover monetary damages under 42 U.S.C. § 1983,1 the district court also implied a private right of action 1 Only “persons” are subject to suit under § 1983, and the Common- wealth and its officials acting in their official capacity are not considered “persons” when sued for damages. Peter-Palican, 673 F.3d at 1017.

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9611 against the Commonwealth for violation of section 22 — a claim Peter-Palican had not pleaded — and awarded her approximately $216,000 in damages. Id. The district court did not rule on Peter-Palican’s other claims. The Commonwealth appealed.

On March 12, 2012, we certified to the Supreme Court of the Commonwealth of the Northern Mariana Islands the fol- lowing questions:

1. Does Article III, section 22 of the Common- wealth Constitution, which states that “[t]he Special Assistant may be removed only for cause,” mean that the Special Assistant may never be removed from that position without cause—even beyond the term of the appointing governor—or does it mean that the Special Assistant is protected against termination with- out cause only during the term of the appointing governor?

2. If the answer to the above question is that Arti- cle III, section 22 of the Commonwealth Consti- tution means the Special Assistant may never be removed for cause even beyond the term of the appointing governor, does Commonwealth law imply a private right of action for monetary damages against the Commonwealth or its offi- cials for violation of that section?

Id. at 1014. The Supreme Court graciously accepted certifica- tion and, on June 29, 2012, issued its opinion in Peter-Palican v. Government of the Commonwealth of the Northern Mari- ana Islands, 2012 MP 7 (N. Mar. I. 2012).

The Commonwealth Supreme Court answered the first cer- tified question as follows:

9612 PETER-PALICAN v. NORTHERN MARIANA ISLANDS [W]e hold that article III, section 22 of the Common- wealth Constitution . . . which states that “[t]he spe- cial assistant may be removed only for cause,” means that the Special Assistant to the Governor for Women’s Affairs . . . is protected against termination without cause only during the term of the appointing governor.

Id. at ¶ 2. Because the answer to the first question is disposi- tive of the issues in this appeal, the Supreme Court declined to address the second certified question. Id.

III

[1] The Commonwealth Supreme Court’s authoritative interpretation of Commonwealth law conclusively establishes that Peter-Palican did not have a property interest in contin- ued employment once the new governor took office. There- fore, although she was protected from termination without cause during the term of Governor Babauta — the governor who appointed her — incoming Governor Fitial and Acting Governor Villagomez were constitutionally allowed to termi- nate her without cause.

The Commonwealth Supreme Court’s prompt decision is attached to this opinion as the Appendix, and we adopt its rea- soning and its conclusions. Because Peter-Palican no longer possessed a property interest in continued employment once the new governor took office, her due process claims fail. And because the Commonwealth did not violate section 22 or the Due Process Clause by terminating her without cause, any implied constitutional tort claim fails as well.

[2] Therefore, we vacate the district court’s judgment in favor of Peter-Palican, including its award of damages and injunctive relief. Because the district court did not address Peter-Palican’s retaliation, breach of contract, or estoppel claims, we remand for further proceedings consistent with this

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9613 opinion as well as that of the Commonwealth Supreme Court, set forth in the Appendix.

VACATED and REMANDED. 9614 PETER-PALICAN v. NORTHERN MARIANA ISLANDS

APPENDIX

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9615 9616 PETER-PALICAN v. NORTHERN MARIANA ISLANDS PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9617 9618 PETER-PALICAN v. NORTHERN MARIANA ISLANDS PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9619 9620 PETER-PALICAN v. NORTHERN MARIANA ISLANDS PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9621 9622 PETER-PALICAN v. NORTHERN MARIANA ISLANDS PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9623 9624 PETER-PALICAN v. NORTHERN MARIANA ISLANDS PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9625