Sagana v. Tenorio

• Decision Date: 07 September 2004
• Docket Number: No. 03-15779.,03-15779.
• Parties: Bonifacio Vitug SAGANA, Plaintiff-Appellant, v. Joaquin A. TENORIO, in his official capacity as Secretary of the Department of Labor and Immigration, Commonwealth of the Northern Mariana Islands, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 731

384 F.3d 731

Bonifacio Vitug SAGANA, Plaintiff-Appellant, v. Joaquin A. TENORIO, in his official capacity as Secretary of the Department of Labor and Immigration, Commonwealth of the Northern Mariana Islands, Defendant-Appellee.

No. 03-15779.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 30, 2004.

Filed September 7, 2004.

As Amended, October 18, 2004.

COPYRIGHT MATERIAL OMITTED

Joe Hill, Saipan, MP, for the plaintiff-appellant.

James D. Livingstone, Assistant Attorney General, Saipan, MP, for the defendant-appellee.

Appeal from the United States District Court for the District of the Northern Mariana Islands; Alex R. Munson, Chief Judge, Presiding. D.C. No. CV-01-00003-ARM.

Before: SCHROEDER, Chief Judge, GOODWIN, and WALLACE, Circuit Judges.

GOODWIN, Circuit Judge.

Bonifacio Vitug Sagana appeals the district court's denial of his motion for summary judgment challenging the Nonresident Workers Act ("NWA"), 3 N. Mar. I.Code § 4411 et seq. (1999), of the Commonwealth of the Northern Mariana Islands ("CNMI"). He argues that the NWA restricts his right to freely market his labor in violation of 42 U.S.C. § 1981 and the Fourteenth Amendment's equal protection and due process clauses. The defendant, Joaquin Tenorio, was sued in his official capacity as the Secretary of the Department of Labor of the CNMI.

The district court dismissed all of Sagana's claims with prejudice. We affirm.

BACKGROUND

I. The CNMI

After the end of World War II, the United Nations designated most of the Micronesian Islands, including the Northern Mariana Islands, as the Trust Territory of the Pacific Islands. The United States became the Trust Territory's administrator, with the responsibility of "promot[ing] the development of the inhabitants of the trust territory toward self-government or independence." United States ex rel. De Leon v. Guerrero, 4 F.3d 749, 751 (9th Cir.1993) (internal quotation marks omitted) (quoting Trusteeship Agreement for the Former Japanese Mandated Islands, 61 Stat. 3301, T.I.A.S. No. 1665, art. 6, § 1 (1947)).

In 1969, the United States began negotiations with the Congress of Micronesia to determine the future political status of the islands. The Marshall Islands, Palau, and Federated States of Micronesia ultimately became independent states, their relationship with the United States governed by compacts of free association. Unlike neighboring Pacific states, the Northern Mariana Islands split from the rest of the Pacific states and negotiated a permanent political union with the United States. The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America was signed on February 15, 1975, and came into force through Congress's Joint Resolution on March 24, 1976. Pub.L. No. 94-241, 90 Stat. 263 (1976), reprinted in 48 U.S.C. § 1801 note (hereinafter "Covenant"). The United States officially terminated the trusteeship over the CNMI on November 3, 1986. Guerrero, 4 F.3d at 751 (citing Proclamation No. 5564, 51 Fed.Reg. 40,399 (1986), reprinted in 48 U.S.C. § 1681 note).

The Covenant establishes the United States' sovereignty and "ultimate political authority" over the CNMI. Covenant § 101; Marianas Political Status Comm'n, Section-by-Section Analysis of the Covenant To Establish a Commonwealth of the Northern Mariana Islands 7 (1975) ("Section-by-Section Analysis"). It gives the United States "complete responsibility for and authority with respect to matters relating to foreign affairs and defense...." Covenant § 104. The Covenant expressly makes certain portions of the Constitution, and most laws in existence at the time of the Covenant's enactment, applicable to the CNMI. Id. §§ 501, 502. In addition, Congress is given the power to pass laws affecting the CNMI by specifically naming the CNMI in any piece of legislation consistent with the Covenant. Id. § 105.

The United States' authority over the CNMI is not, however, absolute. This court has stated, "the authority of the United States towards the CNMI arises solely under the Covenant." Hillblom v. United States, 896 F.2d 426, 429 (9th Cir.1990); see CNMI v. Atalig, 723 F.2d 682, 687 (9th Cir.1984) (explaining that because of its powers of self-government, the CNMI is not under the plenary authority of the United States). The Covenant guarantees the CNMI a measure of self-government, giving the people of the CNMI control over its internal affairs. Id. § 103. Additionally, and more importantly for this case, the Covenant exempts the CNMI from U.S. immigration and naturalization laws and minimum wage laws. Covenant § 503(a), (c). The immigration exemption was originally inserted because the CNMI feared that large numbers of Asian immigrants would migrate to the CNMI under the United States' numerical quotas to take advantage of the CNMI's new affiliation with the United States. Marybeth Herald, The Northern Mariana Islands: A Change in Course under its Covenant with the United States, 71 Or. L.Rev. 127, 141 (1992). The exemption from American minimum wage laws reflected sensitivity to the CNMI's economic conditions. Section-by-Section Analysis at 57-58.

II. The NWA

The CNMI enacted the NWA in 1983, modeling it after a nonresident workers law that had been part of the Trust Territory Code. 3 N. Mar. I.Code §§ 4411 et seq. (1983); Protection of Resident Workers Act, 49 Trust Territory Code § 1 et seq. (1970). The NWA sets conditions on and procedures for the hiring of nonresident workers. Citizens are given a general preference for all jobs. § 4413.¹ Employers who wish to hire nonresident workers must first notify the CNMI Department of Labor, which attempts to place residents in the position. §§ 4431, 4432. The employer must also guarantee that at least ten percent of his or her workforce is comprised of resident workers. § 4436(a). The Department of Labor preapproves all contracts between employers and nonresident workers. § 4434(a)(1). The employer must provide a surety bond guaranteeing three months of wages, medical coverage, and repatriation expenses for each nonresident worker. § 4435. The law requires employers to pay wages at least biweekly in cash, and to pay any applicable minimum wage, although the industries which employ the vast majority of temporary workers are exempted from standard minimum wage laws. §§ 4436(c); 4437(b); 4 N. Mar. I.Code §§ 9221, 9223 (exempting garment, construction, and domestic laborers). The employer is also responsible for providing for the medical expenses of any nonresident worker and for costs that may arise should the nonresident worker die during the term of employment. § 4437(c). The NWA prohibits or restricts the hiring of nonresident workers for certain specific job classifications. §§ 4434(e)(1)-(2), (h), (i).

Nonresident workers are also subject to certain requirements. When applying to work under the NWA, a nonresident worker must submit an affidavit stating that he or she meets the qualifications of the job being sought, has a minimum of two years of working experience, and has not been convicted of a felony or crime of moral turpitude. §§ 4434(b)(1), (2), (4). The worker must also disclose his or her marital status and the existence of any dependents, § 4434(b)(3), and undergo a physical examination once he or she arrives in the CNMI, § 4438. A nonresident worker is not allowed to work in the CNMI without a contract preapproved by the Department of Labor, § 4437(d), or for any other employer than the one designated on the approved contract, § 4437(e). Once hired under the NWA, a nonresident worker may not use his or her presence in the CNMI to establish citizenship or residency. § 4437(a).

III. Sagana's History

Sagana entered the CNMI in 1991 as a nonresident worker. After working as a security guard for three years, he was fired, and subsequently pursued a successful action for wrongful termination and unpaid wages. From 1994 to 2000, Sagana worked under temporary work authorization permits or as an unapproved nonresident worker. A nonresident worker employment application allegedly filed by one of Sagana's employers in October 1998 was apparently lost by the Department of Labor and Immigration, and on November 8, 2000, a Department of Labor and Immigration official determined that Sagana did not have valid work status and could not remain in the CNMI. The official ordered Sagana to depart voluntarily within twenty days. Sagana appealed the order without success.

IV. Procedural History

On December 20, 2000, Sagana filed a complaint in the Superior Court of the CNMI for declaratory and injunctive relief, monetary damages, and attorney fees under 42 U.S.C. §§ 1983 and 1988. Defendants removed the case to the CNMI district court on January 16, 2001. Some of the claims in the case were dismissed by the district court's November 23, 2001, order granting in part the defendant's motion for summary judgment; these claims are not a part of this appeal. All the rest, save one, were settled and the settlement terms memorialized in an Agreement dated November 25, 2002. The Settlement Agreement permitted Sagana to pursue his claim for a declaration whether Sagana "has the right to freely market his labor in the common occupations of life to any prospective employer without restriction and on equal terms as any citizen for so long a period as Plaintiff is lawfully admitted to the CNMI as a nonresident worker."

The district court granted summary judgment for the respondent, Tenorio, and we review that decision de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). Upon review, our efforts are somewhat encumbered by the bulk and vague contours of Sagana's claim. The settlement agreement reduced Sagana's case to a claim that he has a right to pursue and engage in work unrestricted by the rules and procedures of the NWA. We will refer to specific sections of the statute only when...