Gary Ramsey v. Esther Muna

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GARY RAMSEY, No. 15-16309
Plaintiff-Appellee,
D.C. No.
v. 1:14-cv-00021

ESTHER L. MUNA, individually and
in her official capacity as CEO of the OPINION
Commonwealth Healthcare
Corporation; JEANOLIVIA GRANT,
individually and in her official
capacity as Chief of the OB/GYN
Department, Commonwealth
Healthcare Corporation; SHERLEEN
OSMAN, individually and in her
official capacity as Director of
Medical Affairs, Commonwealth
Healthcare Corporation; JOSEPH
KEVIN VILLAGOMEZ;
COMMONWEALTH HEALTHCARE
CORPORATION; COMMONWEALTH OF
THE NORTHERN MARIANA ISLANDS,
Defendants-Appellants,

and

DOES 1–10,
Defendants.
2 RAMSEY V. MUNA

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Heather L. Kennedy, Magistrate Judge, Presiding

Argued and Submitted October 18, 2016
Honolulu, Hawaii

Filed February 28, 2017

Before: J. Clifford Wallace, Jerome Farris,
and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford

SUMMARY*

Sovereign Immunity

In an interlocutory appeal, the panel reversed the district
court’s denial of a motion to dismiss, on the basis of
sovereign immunity, an action against the Commonwealth of
the Northern Mariana Islands and one of its agencies brought
by a doctor, who used to work at the public hospital on
Saipan, and who alleged that the Commonwealth and the
public corporation that runs the hospital wrongfully denied
him hospital privileges.

Plaintiff asserted contract and tort claims under
Commonwealth law; his claims under federal law were

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 RAMSEY V. MUNA 3

dismissed on grounds not at issue in this appeal. The panel
held that Commonwealth retained its sovereign immunity
with respect to claims arising under Commonwealth law. The
panel held that Fleming v. Department of Public Safety, 837
F.2d 401 (9th Cir. 1988), did not control the outcome of this
case because Fleming held only that the Commonwealth
waived its sovereign immunity with respect to “suits in
federal court arising under federal law.” The panel held that
the Commonwealth could not be sued without its consent on
claims arising under its own laws. On remand, the panel
directed the district court to grant the Commonwealth’s
motion to dismiss the claims at issue in this appeal.

COUNSEL

James M. Zarones (argued), Chief Solicitor Division, Office
of the Attorney General, Saipan, Commonwealth of the
Northern Mariana Islands, for Defendants-Appellants.

Stephen C. Woodruff (argued), Saipan, Commonwealth of the
Northern Mariana Islands, for Plaintiff-Appellee.

OPINION

WATFORD, Circuit Judge:

This is an action against the Commonwealth of the
Northern Mariana Islands and one of its agencies, brought by
a doctor who used to work at the public hospital on Saipan.
(The case also involves claims against certain individual
defendants, but those claims are not before us.) The plaintiff
alleges that the Commonwealth and the public corporation
4 RAMSEY V. MUNA

that runs the hospital wrongfully denied him privileges at the
hospital. As relevant here, he asserts contract and tort claims
under Commonwealth law; his claims under federal law were
dismissed on grounds not at issue in this appeal. The
defendants moved to dismiss the contract and tort claims on
the basis of sovereign immunity. The district court
reluctantly denied the motion, believing itself bound by our
decision in Fleming v. Department of Public Safety, 837 F.2d
401 (9th Cir. 1988). We have jurisdiction to hear the
Commonwealth’s interlocutory appeal challenging the denial
of sovereign immunity. See Del Campo v. Kennedy, 517 F.3d
1070, 1074 (9th Cir. 2008).

In Fleming, we held that the Commonwealth does not
enjoy sovereign immunity in federal court with respect to
claims brought under federal law. 837 F.2d at 407–08. We
reached that conclusion after examining the foundational
document that created the Commonwealth, known as the
Covenant to Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States of
America. See 48 U.S.C. § 1801 (setting out the text of the
Covenant). Although the Covenant does not explicitly
address sovereign immunity, we concluded that a waiver of
immunity could be inferred from one of its provisions,
§ 501(a). That section states: “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 . . . .” Section 501(a) then lists
roughly two dozen provisions of the United States
Constitution. Absent from that list is the Eleventh
Amendment, which recognizes States’ immunity from private
suits in federal court. See Hans v. Louisiana, 134 U.S. 1, 15
(1890). We held that the omission of the Eleventh
 RAMSEY V. MUNA 5

Amendment signaled an intention to waive the
Commonwealth’s sovereign immunity in federal court with
respect to claims arising under federal law. Fleming,
837 F.2d at 407.

We found confirmation of this implied waiver in the
Section by Section Analysis of the Covenant to Establish a
Commonwealth of the Northern Mariana Islands (1975), an
authoritative source of the Covenant’s legislative history
prepared by the Marianas Political Status Commission. Id. at
408. The Section by Section Analysis states that the Covenant
provides the people of the Northern Mariana Islands with the
right to local self-government under a constitution of their
own making, thereby ensuring that the “Northern Mariana
Islands government will be an independent government, like
that of the states.” Section by Section Analysis, p. 11. As a
consequence, “the Government of the Northern Mariana
Islands will have sovereign immunity, so that it cannot be
sued on the basis of its own laws without its consent.” Id.
(emphasis added). We concluded that this reference to
sovereign immunity, limited to claims arising under the
Commonwealth’s own laws, supplied “persuasive evidence”
that the drafters of the Covenant intended to waive the
Commonwealth’s sovereign immunity with respect to claims
arising under federal law. Fleming, 837 F.2d at 408.

We hold that Fleming does not control the outcome in this
case. Fleming held only that the Commonwealth waived its
sovereign immunity with respect to “suits in federal court
arising under federal law.” Id. at 407. The court did not have
occasion to say whether the Commonwealth also waived its
sovereign immunity with respect to claims arising under
Commonwealth law, for no such claims were at issue there.
What the court suggested on that subject, based on the
6 RAMSEY V. MUNA

statement in the Section by Section Analysis quoted above, is
that the Commonwealth did not waive its immunity from suit
with respect to claims arising under its own laws.

Confronting the waiver issue as a matter of first
impression, we agree with the suggestion in Fleming that the
Commonwealth retained its sovereign immunity with respect
to claims arising under Commonwealth law. That conclusion
is dictated by two lines of Supreme Court precedent.

In the first line, the Supreme Court held that Puerto Rico
and Hawaii, both United States territories at the time, enjoyed
sovereign immunity from suits arising under their own laws.
People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270,
273–74 (1913); Kawananakoa v. Polyblank, 205 U.S. 349,
353 (1907). The Court held that each territory had been
granted the power to enact its own laws and thus enjoyed a
level of autonomy similar to that of the States. Sovereign
immunity barred suits arising under their own laws because,
absent consent, “there can be no legal right against the
authority that makes the law on which the right depends.”
Kawananakoa, 205 U.S. at 353.

The same rule applies with equal force to the
Commonwealth. Like territorial Hawaii and Puerto Rico, the
Commonwealth has the power to enact its own laws and
indeed enjoys an even greater level of legislative autonomy
than Hawaii and Puerto Rico did back then. Puerto Rico’s
Organic Act provided that the federal government could
unilaterally annul any laws the territory enacted. Foraker
Act, ch. 191, § 31, 31 Stat. 77, 83 (1900). Hawaii’s Organic
Act authorized Congress to repeal or amend any of the laws
that remained in force from the territory’s time as an
independent republic, and granted the territory’s governor, an
 RAMSEY V. MUNA 7

appointee of the federal government, the right to veto bills
passed by the local legislature. Act of Apr. 30, 1900,
ch. 339, §§ 6, 49, 66, 31 Stat. 141, 142, 149, 153. The
Commonwealth’s government, by contrast, was established
by the Covenant and its own constitution, not by an Organic
Act passed by Congress, and the federal government does not
possess a similar veto authority with respect to laws enacted
by the Commonwealth’s legislature. See Covenant §§ 105,
203. Thus, if Hawaii and Puerto Rico enjoyed sovereign
immunity with respect to claims brought under their own
laws, it is even clearer that the Commonwealth enjoys
sovereign immunity with respect to claims arising under its
own laws.

In the second line of precedent, the Supreme Court has
held, perhaps at odds with our reasoning in Fleming, that a
waiver of a State’s sovereign immunity must be unequivocal.
Pennhurst State School & Hospital v. Halderman, 465 U.S.
89, 99 (1984). That means a waiver will be found “only
where stated by the most express language or by such
overwhelming implications from the text as [will] leave no
room for any other reasonable construction.” Edelman v.
Jordan, 415 U.S. 651, 673 (1974) (internal quotation marks
omitted).

The Covenant does not expressly waive the
Commonwealth’s immunity from suits arising under its own
laws, and we do not think the mere omission of the Eleventh
Amendment from § 501(a) gives rise to “overwhelming
implications” that such a waiver was intended. Indeed, as the
court stated in Fleming, all evidence points in the opposite
direction. Most significantly, the Section by Section Analysis
indicates that the drafters of the Covenant believed the
Commonwealth would be entitled to sovereign immunity
8 RAMSEY V. MUNA

when sued on the basis of its own laws. The drafters likely
viewed inclusion of the Eleventh Amendment in § 501(a) as
unnecessary to secure such immunity, given the long line of
authority holding that a State’s immunity from private suits
is an inherent aspect of sovereignty, not a principle derived
solely from the Eleventh Amendment. Principality of
Monaco v. Mississippi, 292 U.S. 313, 322–23 (1934); Hans,
134 U.S. at 12–13; see also Alden v. Maine, 527 U.S. 706,
713 (1999). In addition, as noted above, the Covenant
created a commonwealth with at least as much sovereign
autonomy as territorial Hawaii and Puerto Rico, both of
which enjoyed sovereign immunity by virtue of the fact that
they possessed the power to enact their own laws. In the face
of this equally reasonable explanation for the Eleventh
Amendment’s omission from § 501(a), we cannot construe
that omission as effecting a waiver of the Commonwealth’s
immunity from suits arising under its own laws.

Although the Covenant itself does not contain an express
waiver of sovereign immunity, the Commonwealth has
enacted a statute that waives its immunity with respect to a
limited set of claims arising under Commonwealth law.
However, that statute provides that the Commonwealth’s own
courts “shall have exclusive original jurisdiction” to hear
such claims. 7 C.M.C. § 2251. The Supreme Court has held
that a provision of this sort does not suffice to waive a State’s
immunity from suit in federal court. Instead, the statute or
constitutional provision purporting to waive sovereign
immunity must “specifically indicate the State’s willingness
to be sued in federal court.” Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 241 (1985). Section 2251 indicates
precisely the opposite—that the Commonwealth is willing to
be sued in certain circumstances, but not in federal court.
 RAMSEY V. MUNA 9

In short, we hold that the Commonwealth may not be
sued without its consent on claims arising under its own laws.
On remand, the district court is directed to grant the
Commonwealth’s motion to dismiss the claims at issue in this
appeal.

REVERSED and REMANDED.