Emerenciana Peter-Palican v. Government of the Commonwealth ( 2012 )

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
9607
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