Magana v. Com. of the Northern Mariana Islands

Decision Date01 May 1997
Docket NumberNo. 95-16120,95-16120
Citation107 F.3d 1436
Parties133 Lab.Cas. P 33,520, 3 Wage & Hour Cas.2d (BNA) 1413, 97 Cal. Daily Op. Serv. 1686, 97 Cal. Daily Op. Serv. 3190, 97 Daily Journal D.A.R. 3157, 97 Daily Journal D.A.R. 5587 Teofanie M. MAGANA, Plaintiff-Appellant, v. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; Isamu J. Abraham, personally and in his capacity as Secretary of the Department of Public Health and Environmental Services; Jose Chong, personally, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

G. Anthony Long, Long & Brown, Saipan, MP, for plaintiff-appellant.

Robert Dunlap, Assistant Attorney General, Saipan, MP, for defendants-appellees.

Appeal from the United States District Court for the Northern Mariana Islands, Alex R. Munson, Chief Judge, Presiding. D.C. No. CV-94-00028-ARM.

Before: BROWNING, ALDISERT, * and BRUNETTI, Circuit Judges.

OPINION

ALDISERT, Circuit Judge:

Other substantial issues are presented in this appeal by Teofanie M. Magana from a judgment entered in favor of the Commonwealth of the Northern Mariana Islands ("Commonwealth" or "CNMI") and two individual officials, but the major question for decision is whether a litigant has the right to bring an action for money damages against the Commonwealth directly under the Fourteenth Amendment without a congressionally created cause of action. The District Court of the Northern Mariana Islands determined that Appellant had no such right and she appeals.

Appellant filed claims against Isamu J. Abraham, Secretary of the Department of Public Health and Environmental Services, and Jose Chong, the department's director, under statutorily created remedies for violations of the U.S. Constitution, federal and Commonwealth labor laws and federal civil rights acts. In addition to suing these individuals, she sued the Commonwealth directly under the Fourteenth Amendment. The dispute concerns an employment relationship between Magana and the Commonwealth, which formerly employed her at a government-operated health center. Appellant claims the Commonwealth failed to pay correct overtime payments and discriminated against Filipino nurses on the basis of race and national origin.

The district court had jurisdiction under 48 U.S.C. § 1694 and 28 U.S.C. §§ 1331 and 1332. This court has jurisdiction pursuant to 48 U.S.C. § 1694(c) and 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure.

In addition to the claim brought directly under the Fourteenth Amendment, this appeal requires us to decide a number of other questions: whether the district court erred in concluding that the Commonwealth was not required to compensate Magana for overtime work under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et. seq., or the Foreign Contract Workers Law, 3 C.M.C. § 4411 et seq., because she is a professional employee and, therefore, exempt from the overtime provisions of those acts; and whether the court erred in granting Appellees' motion for summary judgment on Appellant's claims under 42 U.S.C. §§ 1981 and 1983.

We review de novo district court decisions granting or denying cross motions for summary judgment. Equal Employment Opportunity Comm'n v. Maricopa County Community College Dist., 736 F.2d 510, 512-513 (9th Cir.1984); Lindsey v. Shalmy, 29 F.3d 1382, 1384 (9th Cir.1994). We review de novo district court decisions regarding exemptions to the Fair Labor Standards Act. Abshire v. County of Kern, 908 F.2d 483, 486 (9th Cir.1990).

I.

Appellant brought a claim for money damages against the Commonwealth of the Northern Mariana Islands solely on the basis of the Fourteenth Amendment. She contends that the Commonwealth engaged in employment-discrimination practices that offend protections assured by that amendment. The absence of any remedial statute authorizing a direct action under the Fourteenth Amendment raises unusual issues, given the unique status of the Commonwealth. Conceding that such a claim could not be made against a state because of the Eleventh Amendment immunity afforded states, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984), Appellant anchors her argument on the premise that the CNMI does not have such immunity. Fleming v. Department of Public Safety, 837 F.2d 401, 405 (9th Cir.1988) (Eleventh Amendment does not apply to the CNMI because it is conspicuously absent from the provisions of the U.S. Constitution deemed applicable to the CNMI under § 501(a) of the Covenant establishing a union between the U.S. and Commonwealth). 1

Appellant argues that because the Commonwealth may not assert an Eleventh Amendment defense, she is somehow empowered to bring a Fourteenth Amendment direct action against the CNMI for money damages. Before evaluating the significance of the presence or absence of an Eleventh Amendment affirmative defense, we must inquire whether Appellant is entitled to bring such a claim under the Fourteenth Amendment. To start this inquiry, we must understand the special relationship between the CNMI and the United States.

A.

In 1976, the Northern Mariana Islands and the United States entered into the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Act of March 24, 1976, Pub.L. No. 94-241, 1976 U.S.C.C.A.N. (90 Stat.) 263. The Covenant and the CNMI constitution became effective on January 9, 1978, at which time the people of that territory became self governing. Temengil v. Trust Territory of the Pacific Islands, 881 F.2d 647, 650 (9th Cir.1989).

Neither the Covenant nor the CNMI constitution expressly vests jurisdiction in the District Court of the Northern Mariana Islands over an action for money damages against the Commonwealth brought directly under the Fourteenth Amendment. The Covenant abounds in specificity. Thus, Section 501(a) provides:

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 force within the Northern Mariana Islands, will be applicable within the Northern Mariana Islands only with approval of the Government of the Northern Mariana Islands and of the Government of the United States.

90 Stat. at 267 (emphasis added).

Noteworthy is that the Covenant's list of provisions applicable to the CNMI includes the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Equally noteworthy is that all provisions of the Constitution are not included in the list. For example, the Commerce Clause (Article I, Section 8, Clause 3), the Territorial Clause (Article IV, Section 3, Clause 2) and the Supremacy Clause (Article VI, Clause 2) are omitted from Section 501.

Section 502 of the Covenant provides that the laws of the United States that are in existence at the time the Covenant is adopted and generally applicable to Guam and the states are also applicable to the CNMI. However, Section 503 of the Covenant provides that certain laws are not applicable. In the posture of this case, the CNMI has not challenged the applicability of the FLSA to Appellant's claim; and 42 U.S.C. §§ 1981 and 1983 were made applicable to the Commonwealth through Section 502 of the Covenant. Temengil, 881 F.2d at 651 (citing Fleming, 837 F.2d at 404-405 (9th Cir.1988)).

With respect to future legislative enactments, Section 105 of the Covenant authorizes the United States to "enact legislation in accordance with its constitutional processes which will be applicable to the Northern Mariana Islands." 90 Stat. at 264. To further the goals of self-governance, the Covenant provides that Articles I, II, and III and Sections 501 and 805 of the Covenant cannot be modified without mutual consultation and agreement between the CNMI and the United States government. A & E Pacific Const. Co. v. Saipan Stevedore Co., 888 F.2d 68, 71 (9th Cir.1989). As this court has previously stated:

That Congress has the power to pass legislation with respect to the CNMI that it would not pass with respect to the states is plain. Having recognized that the potential scope of power over the CNMI would be greater than that over the states, Section 105 requires that Congress specifically identify the CNMI in cases where such legislation is not equally applicable to the states. As the Marianas Political Status Commission ("MPSC") explained in its contemporaneous analysis of the Covenant, this requirement is to ensure that Congress will exercise its legislative powers "purposefully, after taking into account the particular circumstances existing in the Northern Marianas."

U.S. Ex Rel. Richards v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir.1993) (citing Marianas Political Status Commission, Section-by-Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands 15 (1975)).

The foregoing analysis compels the following corollary observations:

Section 501 of the Covenant did not vest any power or authority in the District Court for the Northern Mariana Islands not already possessed by the courts in "the several States" and, therefore, no authority exists to entertain...

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