Sablan v. Department of Finance of Com. of Northern Mariana Islands

Decision Date06 April 1988
Docket NumberNo. 87-2500,87-2500
Citation856 F.2d 1317
PartiesJohn R. SABLAN; Angeline F. Sablan, Plaintiffs-Appellees, v. DEPARTMENT OF FINANCE OF the COMMONWEALTH OF the NORTHERN MARIANA ISLANDS; Rex Palacios, Director of Department of Finance of the Commonwealth of the Northern Mariana Islands in his official capacity; Rex Palacios, in his individual capacity; Norbert Torres, in his official capacity as Manager, Collection Remittance of Department of Finance of the Commonwealth of the Northern Mariana Islands; Norbert Torres, in his individual capacity; Department of Public Works of Commonwealth of the Northern Mariana Islands; John Pangelinan, Director of Department of Public Works, in his official capacity; John Pangelinan, in his individual capacity, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

R. Keith Partlow, Asst. Atty. Gen., Com. of the Northern Mariana Islands, Saipan, CM, for defendants-appellants.

David A. Wiseman, Saipan, CM, for plaintiffs-appellees.

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

Before WALLACE, REINHARDT and NOONAN, Circuit Judges.

WALLACE, Circuit Judge:

The owner and operator of an office building (Sablan) located on Saipan brought this action under 42 U.S.C. Sec. 1983 against the Department of Finance and Department of Public Works of the Commonwealth of the Northern Mariana Islands (Commonwealth) and various officials of these two agencies in their individual and official capacities (collectively government) for terminating his electric utility service without prior notice and a hearing. Although the parties eventually stipulated to the dismissal of the lawsuit, upon a motion by Sablan for attorney's fees, the district court concluded that Sablan was a "prevailing party" within the meaning of 42 U.S.C. Sec. 1988 and, accordingly, awarded attorney's fees under that provision. On appeal, the government challenges not only the merits of the district court's "prevailing party" determination, but also the district court's jurisdiction over this action and its discretion to award attorney's fees without first allowing discovery and conducting an evidentiary hearing. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, as made applicable to the Commonwealth through 48 U.S.C. Sec. 1694c(a), and we affirm.

I

Sablan's office building received its electricity from a public utility owned and operated by the Commonwealth. After a billing dispute arose, in which Sablan protested the reasonableness and consistency of his utility bills, the electricity to the office building was disconnected. Subsequently, Sablan filed a complaint under 42 U.S.C. Sec. 1983 seeking temporary and permanent injunctive relief, money damages, and attorney's fees pursuant to 42 U.S.C. Sec. 1988. Among other things, Sablan alleged that the government, in violation of the due process clause, terminated the electrical power to Sablan's place of business without prior notice or an opportunity to be heard.

Sablan also moved ex parte for a temporary restraining order requiring the government to restore and maintain his electricity pending a hearing on his motion for a preliminary injunction. The district court entered the temporary restraining order and set a hearing date for the preliminary injunction. No hearing was necessary because the parties entered into a court-approved stipulation that the electrical power supply to Sablan's office building "will not be individually and intentionally curtailed pending further order of this court."

Shortly thereafter, the government filed an answer to Sablan's complaint, asserting a defense of sovereign immunity, denying the significant factual allegations in the complaint, and counterclaiming for allegedly past due utility bills. Discovery proceeded for approximately two months before the parties decided to settle the case by stipulating to the dismissal, with prejudice, of all claims and counterclaims. The stipulated dismissal expressly left open the question of Sablan's entitlement to attorney's fees pursuant to 42 U.S.C. Sec. 1988 and provided that Sablan reserves "the right to move for an award on [sic] fees with in [sic] reasonable time fom [sic] the date of filing of this stipulation."

Pursuant to that stipulation, Sablan moved for attorney's fees pursuant to section 1988 on the ground that he was the "prevailing party" in this action. Along with his motion, he submitted a supporting memorandum of points and authorities, which included as an attached exhibit an itemized bill for legal services performed in connection with the lawsuit. The government moved to continue the scheduled hearing date on Sablan's motion in order to allow the government time "to engage in discovery or analysis regarding the request for fees." On that same day, the government filed a set of interrogatories and a request to produce documents relating to Sablan's fee application. The request for a continuance was denied.

After argument at the originally scheduled hearing, the district court (1) rejected the government's contention that the court did not have jurisdiction to hear a case involving the Commonwealth, or its agencies and officers, (2) ruled that because Sablan had succeeded through his lawsuit in prompting the government to reform its former unconstitutional policy of terminating customers' electricity without prior notice and a hearing, he was a "prevailing party" for purposes of receiving an award of attorney's fees under section 1988, and (3) after reducing the requested amount by one-third, awarded the remainder as attorney's fees under section 1988. The government timely appeals the award of attorney's fees.

The law to be applied to this appeal is that of this circuit. Because the Ninth Circuit has been given jurisdiction over federal actions appealed from the District Court for the Commonwealth, it follows that Ninth Circuit law should govern the disposition of the federal statutory, procedural, and evidentiary issues raised on this appeal. See, e.g., Micronesian Telecommunications Corp. v. NLRB, 820 F.2d 1097, 1101-02 (9th Cir.1987) (applying Ninth Circuit interpretation of the National Labor Relations Act to federal labor law issues arising in the Commonwealth); Smith v. Pangilinan, 651 F.2d 1320, 1323-26 (9th Cir.1981) (applying Fed.R.Civ.P. 24 to motion to intervene in proceeding brought in District Court for the Commonwealth).

II

The government first argues that sovereign immunity divested the district court of jurisdiction to entertain a section 1983 suit against officers and agencies of the Commonwealth. Both eleventh amendment and common law immunity are advanced as a bar to federal jurisdiction.

Our recent decision in Fleming v. Department of Public Safety, CNMI, 837 F.2d 401 (9th Cir.1988), however, conclusively decided this issue against the government. In Fleming, we stated that, while sharing "many attributes of statehood," the Commonwealth is nonetheless a person for purposes of being sued under section 1983 and that, like a local government, it "does not enjoy eleventh amendment immunity." Id. at 406 (footnote omitted). Further, we held that whatever common law sovereign immunity the Commonwealth might have otherwise possessed against suits in federal court arising under federal law was impliedly waived when the Commonwealth entered into the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Id. at 407.

Hence, the Department of Public Works and the Department of Finance, and their officers acting in their official capacities, cannot hide behind the shield of either eleventh amendment or common law sovereign immunity. See id. at 408. On appeal, the various government officials who are named in their individual capacity do not raise any claim of absolute or qualified immunity. We will therefore treat any potential claims of official immunity as waived.

III

The government next assigns error on two procedural grounds. First, the government contends that the district court abused its discretion in denying a continuance to pursue discovery relating to Sablan's request for attorney's fees. Second, the government assails the district court for impermissibly making specific factual findings on the "prevailing party" issue.

A.

The district court's decision to grant or deny a continuance will not be overturned except upon a showing of clear abuse of discretion. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985). Here, a continuance was sought for the purposes of conducting discovery, and hence its denial was effectively a denial of discovery. Discovery requests, however, are similarly committed to the sound discretion of the trial court. Broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed "except 'upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.' " Butcher's Union Local No. 498 v. SDC Investment, Inc., 788 F.2d 535, 540 (9th Cir.1986), quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 n. 1 (9th Cir.1977).

The government's discovery request, however, pertained solely to the amount of fees; it did not raise issues relating to Sablan's entitlement to fees as a "prevailing party." In the motion for a continuance, the government averred that it needed more time "to engage in discovery or analysis regarding the request for fees." The attached supporting affidavit by the Assistant Attorney General clarified that the purpose of the continuance was to permit the government "to engage in discovery as to the amount and reasonableness of Plaintiff's fee request." (Emphasis added.) But no suggestion was made that the government was even contesting Sablan's "prevailing party" status, much less that the...

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