Temengil v. Trust Territory of Pacific Islands
| Decision Date | 28 July 1989 |
| Docket Number | Nos. 88-1548,88-1639 and 88-1675,s. 88-1548 |
| Citation | 881 F.2d 647 |
| Parties | 50 Fair Empl.Prac.Cas. 714, 50 Empl. Prac. Dec. P 39,202 Edward TEMENGIL; Justin Manglona; Hiromi Rdiall; Fred Heine; Manuel Sablan; Ramon Rechebei; Charles Muller, individually and on behalf of all others similarly situated, Plaintiffs-Appellees/Cross-Appellants, v. TRUST TERRITORY OF the PACIFIC ISLANDS; Janet McCoy, High Commissioner of the Trust Territory of the Pacific Islands; United States Department of the Interior; Manuel Lujon, Jr., * Secretary of the Interior; United States of America, Defendants-Appellants/Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Traylor T. Mercer, Carlsmith, Wichman, Case, Mukai & Ichiki, Saipan, MP; Jacob M. Lewis, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants/cross-appellees.
Douglas F. Cushnie, Saipan, MP, for plaintiffs-appellees/cross-appellants.
Appeal From the United States District Court for the Northern Mariana Islands.
Before BROWNING, BEEZER and KOZINSKI, Circuit Judges.
This appeal stems from a class action employment discrimination suit brought by Asian and Micronesian citizens ("Plaintiffs") who worked for the government of the Trust Territory of the Pacific Islands. Defendants can be divided into two groups: the Trust Territory government and Janet McCoy, High Commissioner (collectively "Trust Defendants"); and the United States Department of the Interior, the Secretary of the Interior, and the United States (collectively "Federal Defendants").
Defendants appeal monetary damages awarded against the Trust Defendants. (Federal Defendants decline to appeal injunctive relief awarded against them because the issue is moot.) Plaintiffs cross-appeal the dismissal of monetary claims against the Federal Defendants and the dismissal of Title VI and Title VII claims against all defendants.
Litigation in this matter lasted over six years. The decision which is appealed was issued in 1983, and is reprinted in 33 Fair Empl.Prac.Cas. (BNA) 1027 (D.N. Mar. I. 1983). That order was made final by an order issued on December 1, 1987. Most of the facts pertinent to the litigation were stipulated by the parties; a few other facts were determined by the district court. Factual determinations are reviewed for clear error, questions of law are reviewed de novo, and mixed questions of fact and law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We reverse the determination of jurisdiction as to the Trust Defendants, and affirm the dismissals of complaints against Trust Defendants, and affirm the dismissals of complaints against Trust and Federal Defendants.
The early history of the Trust Territory has been well chronicled in our earlier opinions. Briefly, the Trust Territory encompassed the pacific islands and atolls known as Micronesia. Between World Wars I and II, Micronesia was administered under a class C mandate from the League of Nations. During World War II the United States military occupied many of the islands, using them as steppingstones in its drive towards Japan. Following World War II, Micronesia joined the list of dependent non-self governing areas provided for in articles 73-91 of the newly created United Nations Charter. See Note, Trusteeship Compared with Mandate, 49 Mich.L.Rev. 1199 (1951).
Following intense debate by members of the United Nations, the United States and the Security Council of the United Nations entered into a Trusteeship Agreement under which the United States accepted administrative responsibility for the people of Micronesia. See Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. The paramount duty of the United States was to steward Micronesia to self government. Id., art. 6.1; see Gale v. Andrus, 643 F.2d 826, 830 (D.C.Cir.1980). 1 The area became known as the Trust Territory of the Pacific Islands.
To fulfill its administrative duties, the United States--through the Department of the Interior--created a bureaucracy known as the Trust Territory government. See Exec. Order No. 11021, 27 Fed.Reg. 4409 (1962). The executive functions of the Trust Territory government were exercised by a High Commissioner, who was appointed by the President of the United States with the advice and consent of the Senate. 48 U.S.C. Sec. 1681a. Ultimate discretionary control over the Trust Territory government was retained by the Secretary of the Interior. Secretarial Order No. 2918, 34 Fed.Reg. 157 (1968).
The political and sovereign status of the Trust Territory and the Trust Territory government puzzled legislators, courts, and commentators from the beginning. See, e.g., Trusteeship Agreement For the Territory of the Pacific Islands: Hearings on S.J.Res. 143 Before the Senate Comm. on Foreign Relations, 80th Cong., 1st Sess. 8, 16-17, 21-22 (1947); see generally, Note, A Macrostudy of Micronesia: The Ending of a Trusteeship, 1972 N.Y.L.F. 204-07.
In 1969 the people of Micronesia began negotiations with the United States through the Congress of Micronesia's Joint Committee on future status. At that time, the Trust Territory was divided into several administrative districts. In 1972, the administrative district designated as the Northern Mariana Islands began separate negotiations. See S.Rep. No. 596, 94th Cong., 2d Sess. 4-5, reprinted in 1976 U.S.Code Cong. & Admin. News 448, 452. It is with these negotiations that closer examination of the history of the Trust Territory becomes important to this appeal.
The Northern Mariana Islands' negotiations resulted, in 1976, in the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. In light of the Covenant, the Secretary of Interior created a separate bureaucracy to govern the Northern Mariana Islands and divested the Trust Territory government of control within the area. 2 Secretarial Order No. 2989, 41 Fed.Reg. 15,892 (1976). The Trust Territory government, however, continued to be located in Saipan, which is part of the Northern Mariana Islands.
Many of the provisions of the Covenant became effective on January 9, 1978. At that time, the Constitution of the Northern Mariana Islands took effect and the people became self governing. 3 Proclamation No. 4534, 42 Fed.Reg. 56,593 (1977). Furthermore, under section 502 of the Covenant, most of the laws of the United States were made applicable within the area. However, although the United States for the most part dealt with the Northern Mariana Islands as though it was a Commonwealth beginning in 1978, the area formally remained a part of the Trust Territory until the Trusteeship Agreement was dissolved in 1986.
Meanwhile, the remainder of the Trust Territory divided itself into three regions: the Federated States, the Marshall Islands, and Palau. Each of these regions formed its own governments and negotiated Compacts of Free Association with the United States. By 1979, the Trust Territory government was divested of most of its functions, and retained only certain accounting and budgeting functions relating to federal assistance. Secretarial Order No. 3039, 44 Fed.Reg. 28,116 (1979).
In 1986, the Trusteeship Agreement was formally dissolved with respect to the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, and the Republic of the Marshall Islands. Proclamation No. 5564, 51 Fed.Reg. 40,399 (1986), reprinted in 48 U.S.C. Sec. 1681 note. Thus, the Commonwealth is now a part of the sovereign United States and the Federated States and Marshall Islands are fully independent, sovereign nations. See Covenant, Sec. 101; Compact of Free Association Act of 1985, Pub.L. No. 99-239, 99 Stat. 1770. The Trusteeship Agreement remains in effect only for Palau. 4 The Republic of Palau, however, operates as an independent nation; it has negotiated treaties with other nations and has joined several international organizations on its own standing. See Morgan Guaranty Trust Co. v. Republic of Palau, 639 F.Supp. 706, 708-09 (S.D.N.Y.1986).
The other facts pertinent to this appeal concern the Trust Territory government's compensation plan. Defendants do not appeal the district court's finding that the employment practice complained of by plaintiffs was discriminatory. 5 Under this three-level compensation plan, citizens of Asian and Micronesian countries received less pay than citizens of the United States or Europe. Citizens of other nations received pay between the levels of those two groups. The version of this plan in practice at the time of the plaintiffs' challenge was mandated by High Commissioner Executive Order No. 119 (May 25, 1979). The three-level plan, however, had been in practice for some time. See Mink, Micronesia: Our Bungled Trust, 6 Tex. Int'l L.J. 181, 187 (1971).
Sections 1981 and 1983 of Title 42 of the United States Code were made applicable to the Northern Mariana Islands through section 502 of the Covenant. See Fleming v. Department of Public Safety, 837 F.2d 401, 404-05 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 222, 102 L.Ed.2d 212 (1988). The district court ruled that those parts of the Trust Territory government that were physically located within the commonwealth were subject to the laws of the commonwealth. A district court's determination of jurisdiction is reviewed de novo. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1326 (9th Cir.1985). Our review leads us to conclude that sections 1981 and 1983 do not apply to the Trust Territory government.
Section 502(a)(2) of the Covenant makes applicable to the commonwealth "those laws ... which are applicable to Guam and...
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