DeNieva v. Reyes

• Citation: 966 F.2d 480
• Decision Date: 05 June 1992
• Docket Number: No. 90-16041,90-16041
• Parties: Yolanda U. DeNIEVA, Plaintiff-Appellee, v. Charles REYES, Acting Chief of Immigration, Office of Immigration and Naturalization in his official and individual capacities; Government of the Commonwealth of the Northern Mariana Islands, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 480

966 F.2d 480

Yolanda U. DeNIEVA, Plaintiff-Appellee, v. Charles REYES, Acting Chief of Immigration, Office of

Immigration and Naturalization in his official and

individual capacities; Government of the Commonwealth of

the Northern Mariana Islands, Defendants-Appellants.

No. 90-16041.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1991.

Decided June 5, 1992.

James B. Parsons, Asst. Atty. Gen., Com. of Northern Mariana Islands, Saipan, MP, for defendants-appellants.

Lecia M. Eason, Wiseman and Eason, Saipan, MP, for plaintiff-appellee.

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

Before: ALARCON, D.W. NELSON and CANBY, Circuit Judges.

CANBY, Circuit Judge.

The Government of the Commonwealth of the Northern Mariana Islands (CNMI) and Charles Reyes, the Acting Chief of its Immigration and Naturalization Office appeal the district court's summary judgment holding them liable to plaintiff Yolanda U.

                DeNieva and a subsequent jury award of $50,000.   We affirm the judgment against Reyes in his individual capacity, and reverse the judgment insofar as it runs against the CNMI
                

FACTS

DeNieva is a Philippine citizen who has a Philippine passport and who resides in the CNMI. In 1988, Reyes began an investigation into allegations that, first, DeNieva might be involved in an international operation to import workers to the CNMI on the basis of falsified or forged documents and, second, that DeNieva's passport might have been falsified. Reyes requested that DeNieva come to his office and, at that meeting (on June 21, 1988), DeNieva gave Reyes her passport and entry papers.

A few days later, DeNieva requested that Reyes return her papers and passport, but Reyes declined to do so. On July 1, 1988, DeNieva filed the complaint initiating this lawsuit and sought a temporary restraining order returning her documents. In the few hours between the filing of the motion for a TRO and the hearing on it, a CNMI officer arrested DeNieva, charging her with possession of a false passport and other offenses. The Commonwealth Trial Court, after a hearing, held that there was probable cause to arrest DeNieva. All of the charges against DeNieva were eventually dismissed.

On October 19, 1988, CNMI officials relinquished possession of DeNieva's passport and entry permit. DeNieva pursued her § 1983 claim and, following discovery, DeNieva and the defendants filed cross-motions for summary judgment. The district court denied the defendants' motion and granted DeNieva's motion in part, holding that her constitutional right to travel was violated during the 11-day period between the date of confiscation of DeNieva's passport and the date of her arrest. The court also found that there could be no liability for the period after the arrest because of the finding of probable cause. The only remaining issue--the amount of damages that DeNieva suffered for the 11-day period--was sent to the jury, which awarded DeNieva $50,000.

The defendants filed a motion for a new trial, which the district court denied. CNMI and Reyes then filed a timely notice of appeal to this court.

DISCUSSION

On appeal, the defendants contend that: (1) the court has no jurisdiction over either the CNMI or Reyes in his official capacity because the CNMI is not a "person" within the meaning of 42 U.S.C. § 1983; (2) the CNMI is protected from suit by the doctrine of sovereign immunity; (3) Reyes is protected from suit against him in his individual capacity by qualified immunity; (4) Reyes did not violate DeNieva's constitutional rights; (5) the district court erred by refusing to admit testimony that DeNieva could have traveled despite the loss of her passport; and (6) the evidence did not support the jury's award of $50,000. We conclude that DeNieva can maintain this suit only against Reyes in his individual capacity but affirm the finding of liability and the award of damages against him.

I. Jurisdiction

The defendants challenge the district court's conclusion that DeNieva can maintain her suit against the CNMI and against Reyes in his official capacity. ¹ The jurisdictional basis for DeNieva's claims against Reyes and the CNMI is 42 U.S.C. § 1983 (1988), which provides in relevant part that

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... 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....

DeNieva, relying on Fleming v. Department of Public Safety, Commonwealth of the Northern Mariana Islands, 837 F.2d 401, 406-07 (9th Cir.) (finding that CNMI is a "person" under § 1983), cert. denied, 488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 212 (1988), contends that the CNMI is a "person" within the meaning of § 1983 and, therefore, is subject to suit under § 1983. This argument is unmeritorious in light of Will v. Michigan Department of State Police, 491 U.S. 58, 68-70, 109 S.Ct. 2304, 2310-11, 105 L.Ed.2d 45 (1989), which held that states are not "persons" within the meaning of § 1983, and Ngiraingas v. Sanchez, 495 U.S. 182, 192, 110 S.Ct. 1737, 109 L.Ed.2d 163 (1990), which held that the Territory of Guam is not a "person" under § 1983. Fleming's conclusion was based on, first, the implicit finding in Bunyan v. Camacho, 770 F.2d 773 (9th Cir.1985), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986), that § 1983 applies to Guam; and, second, § 502(a)(2) of 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. § 1681 (1988), which applies to the CNMI "those laws ... which are applicable to Guam and which are of general application to the several States as they are applicable to the several States." (Emphasis added). Will and Ngiraingas establish that neither Guam nor the states are "persons" within the meaning of § 1983. As a result, § 502(a)(2) of the CNMI covenant, which had formed the basis of the Fleming opinion, indicates that the CNMI is not a "person" under § 1983. We conclude that, in light of Will and Ngiraingas, the CNMI is not a "person" within the meaning of § 1983, and Fleming is no longer good law on this issue. Neither the CNMI nor its officers acting in their official capacity can be sued under § 1983. Will, 491 U.S. at 71, 109 S.Ct. at 2311-12 (suit against officer in official capacity "is a suit against the official's office. As such, it is no different from a suit against the State itself.") (citation omitted).

Reyes, however, is a "person" for the purposes of a suit against him in his individual capacity. See Hafer v. Melo, --- U.S. ----, 112 S.Ct. 358, 365, 116 L.Ed.2d 301 (1991) ("[S]tate officials, sued in their individual capacities, are 'persons' within the meaning of § 1983.") We need consider only briefly the remaining jurisdictional requirements for a § 1983 claim against Reyes in his individual capacity: that Reyes acted "under color of" CNMI law, ² and that the law of the CNMI is the law of a "State or Territory," within the meaning of § 1983. With respect to the first requirement, there is no doubt that Reyes, who confiscated DeNieva's passport pursuant to his authority as Acting Chief of Immigration for the CNMI, acted under color of CNMI law. Reyes does not contend otherwise, and there would be no basis for such an assertion. Regarding the second requirement, § 502(a)(2) of the CNMI covenant provides that "those laws ... which are applicable to Guam and which are of general application to the several states" apply to the CNMI. Because § 1983 applies to Guam and to the states, we find that, under § 502(a)(2), § 1983 also applies to the laws of the CNMI. Thus, § 1983 provides jurisdiction for DeNieva's claims against Reyes in his individual capacity.

We conclude, therefore, that the district court erred in ruling that it had jurisdiction over DeNieva's claims against the CNMI and Reyes in his official capacity. ³ DeNieva

can maintain this suit only against Reyes in his individual capacity. ⁴

II. Qualified Immunity ⁵

"When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses." Graham, 473 U.S. at 166, 105 S.Ct. at 3105. In this case, Reyes contends that he is entitled to qualified immunity from DeNieva's claims against him and, therefore, that the district court erred in ruling that he was not immune from suit.

As an initial matter, we must consider DeNieva's argument that Reyes waived his right to appeal the denial of qualified immunity. DeNieva contends that, because Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985), held that a denial of qualified immunity is an appealable "final decision" within the meaning of 28 U.S.C. § 1291 (1988), the time limit for the filing of an appeal began to run as soon as the district court denied Reyes' summary judgment motion, so that the time for appeal elapsed long before entry of the final judgment. We reject this argument because it would transform the permissive rule of Mitchell--that a defendant may appeal a denial of qualified immunity--into a requirement of immediate appeal that Mitchell does not announce (or even intimate) and that would ignore principles of judicial economy by creating delays that waste the time and resources of the courts and the litigants. Other courts considering this issue have come to a similar conclusion. See, e.g., Kurowski v. Krajewski, 848 F.2d 767, 773 (7th Cir.) (holding that "a public official may raise questions of immunity on appeal from a final judgment, even though he bypassed an opportunity to take an interlocutory appeal"), cert. denied, 488 U.S. 926, 109 S.Ct. 309, ...