Dyack v. Commonwealth of Northern Mariana Islands

• Decision Date: 23 January 2003
• Docket Number: No. 02-15393.,02-15393.
• Citation: 317 F.3d 1030
• Parties: Colin DYACK, Plaintiff-Appellant, v. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; Joseph K.P. Villagomez, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

317 F.3d 1030

Colin DYACK, Plaintiff-Appellant, v. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; Joseph K.P. Villagomez, Defendants-Appellees.

No. 02-15393.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2002.

Filed January 23, 2003.

Jay H. Sorensen, Saipan, MP, for the plaintiff-appellant.

Andrew Clayton, Assistant Attorney General for the Commonwealth of the Northern Mariana Islands, Saipan, MP, for the defendants-appellees.

Appeal from the United States District Court for the Northern Mariana Islands; Alex R. Munson, Chief Judge, Presiding. D.C. No. CV-01-00033.

Before: SCHROEDER, Chief Judge, ALARCÓN and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Appellant Colin Dyack ("Dyack") filed this action under 42 U.S.C. § 1983 against the Commonwealth of the Northern Mariana Islands ("CNMI") and its Secretary of Public Health, alleging that the defendants violated his due process rights when they fired him from his position as a physician with the Department of Public Health without notice or an opportunity to be heard. The District Court granted summary judgment to the defendants, finding as a matter of law that Dyack was not a member of the CNMI civil service and therefore not entitled to notice of termination or an opportunity to respond. We agree and affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Dyack is a physician and a citizen of Canada.¹ In October 1999, he entered into a two-year employment contract with the CNMI to work for the Department of Public Health at the Commonwealth Health Center ("CHC") as an obstetrician/ gynecologist, for an annual salary of $101,500. The contract was entitled an "Excepted Service Employment Contract," indicating that Dyack was considered to be excepted from the CNMI's civil service system. The contract included a certification from the Director of Personnel for the CNMI's Office of Personnel Management, Mathilda Rosario, that the contract qualified Dyack "as Excepted Service under 1 CMC Section 8131 of the Commonwealth Code/Executive Order 94-3, Section 509(c)."²

Dyack's employment contract incorporated the Conditions of Employment set forth in a separate document. The Conditions of Employment provided that "[t]he Employer may terminate the Employee without cause upon notice sixty days in advance of termination of employment." Dyack signed the Conditions of Employment, as did Rosario.

Dyack's employment at the CHC began on October 22, 1999. On July 17, 2000, Dr. Martin Rohringer, CHC's Director of Medical Affairs, handed Dyack a letter of termination from the CNMI Secretary of Public Health, Joseph K.P. Villagomez. The letter stated simply that the Department of Public Health "has elected not to continue your employment" and that, pursuant to the Conditions of Employment and the CNMI's Excepted Service Personnel Regulations, Dyack's employment would be terminated sixty days from receipt of the letter. The letter stated that the termination "is not considered to be for reason of cause," and it expressed the government's desire "to ensure that you receive timely notification and have an opportunity to respond to this action." The letter informed Dyack that he had the right to further discuss the termination with the Director of Personnel, and it invited him to arrange an appointment with Secretary Villagomez if Dyack wished to discuss his termination. Dyack did not contact Villagomez or Rosario regarding his termination.

Dyack subsequently brought an action under 42 U.S.C. § 1983 against Villagomez and the CNMI in the District Court of the District of the Northern Mariana Islands. Dyack claimed that his termination without notice or a hearing deprived him of his due process rights under the Fourteenth Amendment because he was a member of the CNMI civil service and therefore protected from termination without notice. He also brought state-law claims for premium pay and wrongful termination. Dyack moved for partial summary judgment on the § 1983 claim, and the defendants cross-moved for summary judgment on the issue of qualified immunity.

The District Court denied Dyack's summary judgment motion and sua sponte granted summary judgment in favor of the defendants on the merits of the § 1983 claim. The District Court found as a matter of law that Dyack was not a member of the CNMI civil service and thus not entitled to notice or a hearing. Instead, the court found, Dyack fell within the civil service exception of 1 N. Mar. I.Code § 8131(a)(2), which exempts employees where "the service to be performed is special or unique and nonpermanent, is essential to the public interest, and ... it would not be practical to obtain personnel to perform such service through normal public service recruitment procedures." The court did not address the qualified immunity issue, finding it moot in light of its ruling that Dyack was exempt from the civil service. The court dismissed Dyack's state-law claims, declining to exercise its supplemental jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

DISCUSSION

I. Due Process Claim

Dyack alleges that he was terminated without notice or an opportunity to respond, in violation of his Fourteenth Amendment right to due process. In order to determine whether Dyack's termination violated his due process rights, we must first determine whether Dyack had a constitutionally protected property interest in continued employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). This court has held that "a state law which limits the grounds upon which an employee may be discharged, such as conditioning dismissal on a finding of cause," creates a constitutionally protected property interest. Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir.1988) (internal citation omitted). Where, however, a state employee serves at will, he or she has no reasonable expectation of continued employment, and thus no property right. Id.

In the CNMI, the Commonwealth Civil Service Act ("the Act"), codified at 1 N. Mar. I.Code § 8101, et seq., provides that all employees of the CNMI government are included in the civil service system, unless they fall into a statutory exception from the civil service. 1 N. Mar. I.Code § 8131(a). Under Article XX of the Commonwealth Constitution, only the legislature may create exceptions from the civil service. See Manglona v. CNMI Civil Service Comm'n, 3 N. Mar. I. 243, 249, 1992 WL 396825 (1992). The only statutory exceptions the legislature has chosen to create are the exceptions listed in 1 N. Mar. I.Code § 8131. Sonoda v. Cabrera, 1997 N. Mar. I. LEXIS 14, at *6 (1997). Employees who fall within one of these exceptions are referred to as "excepted service" employees.

Civil service employees are subject to the Personnel Service System Rules and Regulations ("PSSRR"), which implement the provisions of the Act. PSSRR § I.A. Under the PSSRR, civil service employees may be terminated only for cause and are entitled to notice and a hearing prior to termination. PSSRR § III.D2(J), (M). In contrast, excepted service employees are governed by the Excepted Service Personnel Regulations ("ESPR"), which confer no such protections. The ESPR provides that excepted service employees may be terminated without cause upon 60 days notice, with no entitlement to a grievance procedure. ESPR § I.9(A). Under this scheme, only civil service employees have a property right to continued employment. The critical question, then, is whether Dyack was excepted from the CNMI civil service pursuant to one of the exceptions listed in § 8131(a).

The defendants contend that Dyack was excepted from the civil service under § 8131(a)(2), which excepts "[p]ersons or organizations retained by contract where the Personnel Officer has certified that the service to be performed is special or unique and nonpermanent, is essential to the public interest, and that, because of the degree of expertise or special knowledge required and the nature of the services to be performed, it would not be practical to obtain personnel to perform such service through normal public service recruitment procedures."³ 1 N. Mar. I.Code § 8131(a)(2). Dyack does not dispute that the services he performed as a physician were special or unique and essential to the public interest, or that it would be impractical for the CNMI to obtain qualified physicians through normal public service recruitment procedures. The only issue is whether Dyack's two-year position was "nonpermanent" within the meaning of § 8131(a)(2).

In construing a state statute, we are bound by the pronouncements of the state's highest court. Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1203 (9th Cir. 2002). If the state's highest court has not addressed the issue, then we must predict how that court would interpret the statute. Id. The CNMI Supreme Court has not yet construed § 8131(a)(2). Accordingly, our task is to predict how it would interpret that statutory provision. Id.

In the CNMI, as in the Ninth Circuit generally, it is a basic principle of statutory construction that language in a statute must be given its plain meaning. Commonwealth Ports Authority v. Hakubotan Saipan Enters., Inc., 2 N. Mar. I. 212, 221, 1991 WL 258324 (1991) (citations omitted); see also United States v. Rashkovski, 301 F.3d 1133, 1136 (9th Cir.2002) ("Under the rules of statutory construction, [t]he plain meaning of the statute controls....") (internal quotation marks and citations omitted). If the statutory language is ambiguous, "[i]t is therefore necessary for us to give it the meaning that the legislature intended." In re Estate of Rofag, 2 N. Mar. I. 18, 29, 1991 WL 70067 (1991); see also United States v. Buckland, 289 F.3d 558, 565 (9th Cir.2002) (en banc) ("Where the language is not dispositive, we look to the [legislative] intent....").

In this case, the dispute centers on the meaning of the term "nonper...