Norita v. Northern Mariana Islands

• Decision Date: 05 June 2003
• Docket Number: No. 02-16292.,02-16292.
• Citation: 331 F.3d 690
• Parties: Claudio K. NORITA; Manuel Mangarero; Lawrence M. Camacho, Plaintiffs-Appellants, v. Commonwealth of the NORTHERN MARIANA ISLANDS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

331 F.3d 690

Claudio K. NORITA; Manuel Mangarero; Lawrence M. Camacho, Plaintiffs-Appellants, v. Commonwealth of the NORTHERN MARIANA ISLANDS, Defendant-Appellee.

No. 02-16292.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2003.

Filed June 5, 2003.

Jeanne H. Rayphand, Brien Sers Nicholas, Saipan, MP, for the Plaintiffs-Appellants.

Karen M. Klaver, Benjamin I. Sachs, Assistant Attorneys General, Saipan, MP, for the Defendant-Appellee.

Appeal from the District Court for the Northern Mariana Islands; Alex R. Munson, Chief Judge, Presiding. D.C. No. CV-01-00029-ARM.

Before SCHROEDER, Chief Judge, GOODWIN and TASHIMA, Circuit Judges.

GOODWIN, Circuit Judge:

This appeal by employees who want to collect overtime from their government employer is remarkable only because it presents once again the question whether must decide a complex jurisdictional question first, or can we "fast forward" to the merits, which could be quickly disposed of with an unpublished memorandum citing clearly established circuit precedent as the district court did.

The Commonwealth of Northern Mariana Islands ("CNMI") seeks a decision on sovereign immunity, the jurisdictional question, so it will not have to respond in future overtime pay cases. Judicial economy cuts both ways. (1) Because this case is easily disposed of on the merits, we should put the merits cart in front of the jurisdictional horse, and close the file, without undertaking a laborious exercise on whether circuit precedent has been overruled by implication by one or more Supreme Court opinions. (2) On the other hand, a jurisdictional precedent in the employer's favor now will produce long term judicial economy by cutting off these cases at the courthouse door. In any event, we are required by our precedent to address CNMI's claim to sovereign immunity before reaching the merits. See Cardenas v. Anzai, 311 F.3d 929, 934 n. 2 (9th Cir. 2002).¹

I.

Claudio Norita, Manuel Mangarero, and Lawrence Camacho are high-ranking executive or "middle management" administrative officers in CNMI's Department of Public Safety. They sued to recover overtime pay as nonexempt employees under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 ("FLSA"). Relying on the "salary-basis" test, plaintiffs say they are subject to deductions in pay for non-safety related disciplinary reasons. They do not claim that they personally had been subjected to such deductions in pay, but assert that CNMI has an actual practice of imposing, and that it will impose, such deductions, thus making them eligible to recover overtime pay.

CNMI moved to dismiss the action for want of jurisdiction, arguing that it is entitled to sovereign immunity. Citing Magana v. CNMI, 107 F.3d 1436, 1440 (9th Cir.1997), for the proposition that CNMI "does not have an Eleventh Amendment immunity defense," the district court retained jurisdiction and proceeded to grant summary judgment in favor of CNMI on the authority of McGuire v. City of Portland, 159 F.3d 460 (9th Cir.1998).

II.

A. Sovereign Immunity

1. Overview of CNMI's relationship with the United States

For three decades following World War II, the United States administered the Northern Mariana Islands as the United Nations trustee for the Trust Territory of the Pacific Islands. Fleming v. Dep't of Public Safety, 837 F.2d 401, 403 (9th Cir. 1988). 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 (the "Covenant"). Act of Mar. 24, 1976, Pub. L. No. 94-241, 90 Stat. 263. The preamble to the Covenant states that "the people of the Northern Mariana Islands and the people of the United States share the goals and values found in the American system of government based on the principles of government by the consent of the governed, individual freedom and democracy[.]" Id.

Section 101 of the Covenant establishes CNMI as "a self-governing commonwealth... in political union with and under the sovereignty of the United States of America." Thus, the United States has "complete authority over foreign affairs and defense matters." See S. Rep. 94-596, 94th Cong., 2d Sess. 1976, reprinted in 1976 U.S.C.C.A.N. 448, 452. Section 201 provides that the "people of the Northern Mariana Islands will formulate and approve a Constitution," and Section 203(a) provides that the "Constitution will provide for a republican form of government with separate executive, legislative and judicial branches and will contain a bill of rights." Section 402 provides generally that the Federal District Court for the Northern Mariana Islands will have "the jurisdiction of a district court of the United States."

In section 501(a), the Covenant expressly adopts several provisions of the United States Constitution:

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.

In addition, section 502(a)(2) provides that the laws of the United States shall generally be applicable to CNMI as they are applicable to the several States.

"The Covenant and the CNMI constitution became effective on January 9, 1978, at which time the people of that territory became self-governing." Magana, 107 F.3d at 1439.

2. Ninth Circuit Law

In 1988, we held in Fleming, 837 F.2d at 405-06, that CNMI is not entitled to Eleventh Amendment immunity against a private action under 42 U.S.C. § 1983 because the Covenant did not include the Eleventh Amendment among the United States constitutional provisions expressly adopted in section 501(a). The Fleming court reasoned:

From the specificity with which the applicable provisions of the United States Constitution are identified, it is clear that the drafters considered fully each constitutional amendment and article for inclusion in the Covenant. That they deliberately declined to include the eleventh amendment unequivocally demonstrates their desire that [CNMI] not be afforded eleventh amendment immunity.

837 F.2d at 405. Fleming also explained that, in reaching this conclusion, it did not ignore the language of section 502(a)(2), which "makes all laws, including section 1983, applicable to [CNMI] `as they are applicable to the several states'":

[H]ad the drafters intended to make the eleventh amendment applicable in [CNMI], they would have done so directly in section 501(a), the section that enumerates all of the constitutional provisions applicable to [CNMI], rather than incorporating it sub rosa through section 502(a)(2). A plain reading of the Covenant indicates a separation between constitutional and nonconstitutional provisions.... Were we to incorporate the eleventh amendment through section 502(a)(2), we would reduce that amendment to mere "law" "generally applicable to the states," as opposed to a constitutional provision.

Id. at 406.

Without reaching the merits of CNMI's argument that it enjoyed common law sovereign immunity, the Fleming court concluded "that in entering into the Covenant [CNMI] impliedly waived whatever immunity it might otherwise have enjoyed against suits in federal court arising under federal law." Id. at 407. Explaining that a "waiver of sovereign immunity can be found by express language, or by clear implication from the text," id. (citing Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)), Fleming looked again to the Covenant and reasoned that the affirmative omission of the Eleventh Amendment from the Covenant "clearly signal[ed] a waiver of any common law sovereign immunity against federal suits; there is simply no meaningful distinction between Eleventh Amendment immunity and common law sovereign immunity insofar as federal suits are concerned." Id. Fleming said that, otherwise, CNMI's "decision to exclude the Eleventh Amendment would make little sense and have been of no practical effect." Id.

In Magana, without reconsidering whether CNMI was entitled to a sovereign immunity defense, we observed our holding in Fleming with respect to that issue, and held that the district court had erred in granting summary judgment on the plaintiff's claim for overtime pay under the FLSA pursuant to an affirmative defense without first determining whether CNMI's delay in raising that defense prejudiced the plaintiff. See Magana, 107 F.3d at 1445. The district court in this case thus followed Ninth Circuit law when it relied on Magana to deny CNMI's motion to dismiss for lack of jurisdiction.

CNMI argues, however, that more recent Supreme Court cases — namely Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002), and Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) — overrule Fleming (and thus Magana) by implication with respect to whether CNMI is entitled to sovereign immunity from private actions under federal law.

3. The Supreme Court's recent sovereign immunity jurisprudence and Fleming's viability

The Supreme Court recently reiterated that Eleventh Amendment immunity derives not from the Eleventh Amendment but "from fundamental postulates implicit in the constitutional design." See Alden, 527 U.S. at 728-29, 119 S.Ct. 2240 (emphasis added). In evaluating Eleventh Amendment issues, the Supreme Court has thus focused on...