Fleming v. Department of Public Safety, Com. of Northern Mariana Islands

• Citation: 837 F.2d 401
• Decision Date: 08 April 1988
• Docket Number: No. 85-2694,85-2694
• Parties: Lawrence M. FLEMING, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY, COMMONWEALTH of the NORTHERN MARIANA ISLANDS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 401

837 F.2d 401

Lawrence M. FLEMING, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY, COMMONWEALTH of the NORTHERN MARIANA ISLANDS, Defendant-Appellant.

No. 85-2694.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1986.

Decided Jan. 21, 1988.

As Amended April 8, 1988.

Douglas F. Cushnie, Saipan, Com. of the Northern Mariana Islands, for plaintiff-appellee.

Patricia Gunzelman Beatley, Saipan, Com. of the Northern Mariana Islands, for defendant-appellant.

Charles Scott, Saipan, Com. of the Northern Mariana Islands, for amicus curiae Trust Territory of the Pacific Islands.

Appeal from the United States District Court for the District of the Northern Mariana Islands.

Before NELSON, REINHARDT and WIGGINS, Circuit Judges.

REINHARDT, Circuit Judge:

The Department of Public Safety of the Commonwealth of the Northern Mariana Islands ("Commonwealth" or "Northern Marianas") appeals a jury verdict awarding $80,000 to Lawrence Fleming in a civil rights action under 42 U.S.C. Sec. 1983 (1982). We agree with the district court that the Commonwealth does not enjoy eleventh amendment immunity from suits and can therefore be sued under section 1983. However, because we find that Fleming has suffered no cognizable injury, we conclude that appellant's motion for judgment notwithstanding the verdict ("j.n.o.v.") should have been granted.

I. Background

In January 1984, Fleming along with several others applied for the job of Police Officer I with the Department of Public Safety. Because there were approximately 16 vancancies at that time, and at least that many applicants, the Department set up four person Police Boards to interview applicants. These Boards recommended qualified candidates to the Director of the Department, who further reviewed applications. The Personnal Office conducted whatever further review that was warranted.

On January 18, 1984, Fleming interviewed with the Department for employment as a police officer. While his application was being considered, the Police Board received information connecting Fleming to drug dealing. On January 25, a member of the Board telephoned the Drug Enforcement Agency in Guam to determine the accuracy of the allegations. He was advised that the allegations were false and the Board recommended Fleming along with several others to the Director of Public Safety.

On January 26, 1984, a memorandum was issued listing the individuals who were to be hired by the Department. Fleming was not included. The Director had delayed recommending Fleming to the Director of Personnel pending his own further consideration of the matter. One week later, on February 3, 1984, the Director sent Fleming's application to the Personnel Office for approval. On February 7, 1984, the Personnel Office contacted Fleming to offer him a position with the Department. Fleming responded that he did not want the job because his career on the police force would be tarnished by the drug allegations. Also, police academy training had already begun by this time, and, according to Fleming, he did not want to start the academy late.

Later in 1984, Fleming brought suit against the Department in the District Court for the Northern Mariana Islands. He alleged that the Department's handling of his application deprived him of his constitutional rights to due process and equal protection in violation of section 1983. After a trial on the merits, a jury agreed, and awarded him $80,000 in damages.

The Department then moved for a j.n.o.v. on the ground that the sovereign immunity afforded the states under the eleventh amendment and under common law is applicable to the Commonwealth, thereby making the Commonwealth immune from suit under section 1983. The Department also claimed that appellee did not suffer constitutional harm violative of section 1983. The district court denied the motion. The Department timely appeals under 48 U.S.C. Sec. 1694(c) (1982).

II. The Commonwealth's Relationship with the United States

At the time of the filing of Fleming's suit, two documents defined the Commonwealth's relationship with the United States. The first, the Trusteeship Agreement for the Former Japanese Mandated Islands, entered into force July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189 ("Trusteeship Agreement"), established the United States as the United Nations trustee of the Trust Territory of the Pacific Islands. (The Northern Mariana Islands were part of the Trust Territory.) The Trusteeship Agreement granted the United States "full powers of administration, legislation, and jurisdiction over the territory subject to the provisions of this agreement," and allowed it to "apply to the trust territory ... such of the laws of the United States as it may deem appropriate to local conditions and requirements." Trusteeship Agreement art. 3. The Trusteeship Agreement also obligated the United States to "promote the development of the inhabitants of the trust territory toward self-government or independence," id. art. 6, Sec. 1, and to "protect the rights and fundamental freedoms of all elements of the population without discrimination," id. art. 6, Sec. 3. See generally Gale v. Andrus, 643 F.2d 826, 828-30 (D.C.Cir.1980) (further describing the Trusteeship Agreement).

The people of the Northern Mariana Islands in recent years have elected to enter into a closer relationship with the United States. On February 15, 1975, the United States and the Marianas Political Status Commission for the people of the Northern Mariana Islands signed the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, reprinted as amended in 48 U.S.C.A. Sec. 1681 (West 1987) ("Covenant"), and Congress thereafter approved the Covenant. Act of Mar. 24, 1976, Pub.L. No. 94-241, 90 Stat. 263. The Covenant establishes the Commonwealth and defines its political relationship with the United States. See generally Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d 682, 685 (9th Cir.) (describing terms of Covenant), cert. denied, 467 U.S. 1244, 104 S.Ct. 3518, 82 L.Ed.2d 826 (1984). In 1984, most of the provisions of the Covenant were in effect. Id.; see Covenant Sec. 1003. It is the terms of that document that are dispositive here.

Trust Territories are sui generis. Each one must be viewed independently to determine the rights granted to its citizenry, the rights reserved to itself, and those possessed by the federal government. See, e.g., Com. of Northern Marianas v. Atalig, 723 F.2D 682, 684-85 (9th Cir. 1984). Accordingly, we must examine the Covenant carefully to determine the precise nature of the Commonwealth's governance. ¹

III. Applicability of Section 1983 to the Commonwealth

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. Sec. 1983 (1982). In its appellate briefs, the Department did not dispute that section 1983 applies in the Commonwealth. ² Section 502(a)(2) of the Covenant expressly makes those laws applicable to Guam and "of general application to the several States" applicable to the Commonwealth. ³ Because section 1983 is applicable by its terms and because it is applicable to Guam, see, e.g., Bunyan v. Camacho, 770 F.2d 773 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986), and also to the states, we find that section 1983 applies to the Commonwealth. See also Proclamation No. 5207, Sec. 5(m), 49 Fed.Reg. 24,365, 24,368 (1984) (U.S. citizenship not required for citizens of the Northern Mariana Islands to bring suit under section 1983).

IV. Application of the Eleventh Amendment to the Commonwealth ⁴

Suits against states under section 1983 are severely limited by the eleventh amendment. When, under section 1983, a citizen sues a state in its own name in federal court, the suit cannot proceed unless the state has waived its sovereign immunity and thereby consented to the suit. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98-99, 104 S.Ct. 900, 906-907, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057, 57 L.Ed.2d 1114 (1978) (per curiam). Thus, we must consider whether the Commonwealth, like the states, enjoys sovereign immunity under the eleventh amendment. A close examination of the Covenant convinces us that its drafters intended that the Commonwealth not enjoy such immunity.

Section 501(a) of the Covenant expressly enumerates those provisions of the United States Constitution that "will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States." The eleventh amendment is conspicuously absent. Section 501(a) provides in full:

To the extent that they are not applicable of their own force, the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States: Article I, Section 9, Clauses 2, 3, and 8; Article I, Section 10, Clauses 1 and 3; Article IV, Section 1 and Section 2, Clauses 1 and 2; Amendments 1 through 9, inclusive; Amendment 13; Amendment 14, Section 1; Amendment 15; Amendment 19; and Amendment 26; provided, however, that neither trial by jury nor indictment by grand jury shall be required in any civil action or criminal prosecution based on local law, except where required by local law. Other provisions of or amendments to the Constitution of the United States, which do not apply of their own...