EDWARD TEMENGIL, ET AL., PETITIONERS V. TRUST TERRITORY OF THE
PACIFIC ISLANDS, ET AL.

   No. 89-1405

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The Federal Respondents In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 3-23) is reported at
881 F.2d 647.  The opinion of the district court (Pet. App. 26-150) is
reported at 33 Fair Empl. Prac. Cas. (BNA) 1027.  /1/

                             JURISDICTION

   The judgment of the court of appeals was entered on July 28, 1989.
A petition for rehearing was denied on January 2, 1990.  Pet. App.
1-2.  The petition for certiorari was filed on March 5, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether Section 502(a)(2) of the Covenant to Establish a
Commonwealth of the Northern Mariana Islands, 90 Stat. 268 (1976), 48
U.S.C. 1681 note, renders the government of the Trust Territory of the
Pacific Islands subject to suit for money damages in district court
under 42 U.S.C. 1981 and 1983.

   2. Whether the Trusteeship Agreement for the Former Japanese
Mandated Islands, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189
(1947), or the Trust Territory Code authorizes private suit for money
damages against the Trust Territory government.

                               STATEMENT

   1. The Trust Territory of the Pacific Islands consists of a group
of Western Pacific islands formerly known as Micronesia.  Between
World War I and World War II the islands were governed by Japan under
a mandate from the League of Nations.  After the Japanese defeat in
World War II, the United States assumed responsibility, as trustee,
for governing the islands under an agreement with the United Nations
Security Council.  See Trusteeship Agreement for the Former Japanese
Mandated Islands, July 18, 1947, United States-United Nations, 61
Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189.

   Among other things, the Trusteeship Agreement granted the United
States "full powers of administration, legislation, and jurisdiction
over the territory," art. 3, 61 Stat. 3302, subject to the United
States' obligation to "promote the development of the inhabitants * *
* toward self-government or independence, as may be appropriate to the
particular circumstances of the trust territory and its peoples." Art.
6(1), 61 Stat 3302.  As the "administering authority," the United
States was authorized to "apply to the trust territory, subject to any
modifications which the administering authority may consider
desirable, such of the laws of the United States as it may deem
appropriate to local conditions and requirements." Art. 3, 61 Stat.
3302.

   Pursuant to 48 U.S.C. 1681(a), the President delegated authority
over the Trust Territory to the Secretary of the Interior.  Exec.
Order No. 11,021, 3 C.F.R. 600 (1959-1963 Comp.).  The Secretary in
turn established a three-branch local government for the Trust
Territory, located on the Northern Marianas island of Saipan, with
executive power vested in a High Commissioner of the Trust Territory,
judicial authority vested in a High Court for the Trust Territory, and
legislative authority vested in a popularly-elected Congress of
Micronesia.  See Secretarial Order No. 2918, 34 Fed. Reg. 157 (1968).

   Ultimately, the Trust Territory was divided into four
geographically distinct regions:  (1) the Northern Mariana Islands,
(2) the Marshall Islands, (3) the Federated States of Micronesia, and
(4) Palau.  In recent years, each of these regions has progressed
towards the self-government contemplated by the Trusteeship Agreement.

   In March 1976, Congress and the President approved a covenant
constituting the Northern Mariana Islands as a commonwealth under the
sovereignty of the United States.  See Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union with
the United States, Feb. 15, 1975, United States-Northern Mariana
Islands, 90 Stat. 263, 48 U.S.C. 1681 note (the Covenant).
Accordingly, a constitution for the Northern Marianas was enacted, and
as of January 9, 1978, governmental control over the area passed by
order of the Secretary of the Interior from the Trust Territory
government to the newly created commonwealth government.  /2/ See
Secretarial Order No. 2989, 41 Fed. Reg. 15,892 (1976);  Proclamation
No. 4534, 3 C.F.R. 56 (1977 Comp.).  The Trust Territory government,
however, continued to be located in Saipan in the Northern Marianas.

   The three remaining regions each formed its own government and
negotiated a compact with the United States.  By 1979, most of the
remaining functions of the Trust Territory government were delegated
to the separate governing bodies of the Marshall Islands, Palau, and
the Federated States of Micronesia.  See Secretarial Order No. 3039,
44 Fed. Reg. 28,116, 28,117 (1979);  Pet. App. 48-49.  The Trust
Territory government retained only certain administrative, accounting,
and budgeting functions relating to federal financial assistance to
those three local governments.  Pet. App. 48-49.

   The dissolution of the Trust Territory government was largely
completed with the approval of Compacts of Free Association between
the United States and the now-independent Federated States of
Micronesia and Republic of the Marshall Islands.  Cf. United States v.
Covington, 783 F.2d 1052, 1054-1055 (9th Cir. 1985) (treating Marshall
Islands as "a foreign country"), cert. denied, 479 U.S. 831 (1986).
As a result, the Trusteeship Agreement has been declared to be "no
longer in effect" for all of the former Trust territories except
Palau.  See Presidential Proclamation No. 5564, 3 C.F.R. 146 (1986
Comp.).  Although no final agreement has been reached concerning the
future status of the Republic of Palau, it has been exercising
substantial powers of self-government and the court of appeals found
that it "operates as an independent nation." Pet. App. 11.  See also
Secretarial Order No. 3119, Section 2, 52 Fed. Reg. 27,859 (1987).

   By the time of the Ninth Circuit's decision, the Trust Territory
government employed only four persons.  Pet. App. 11 n.5.  The Office
of the High Commissioner had been abolished, and the authority of the
Secretary of the Interior over what was left of the Trust Territory
had been delegated to the Assistant Secretary -- Territorial and
International Affairs, who was authorized to "assume and exercise the
authority of the Office of the High Commissioner." Secretarial Order
No. 3119, Section 3, 52 Fed. Reg. 27,859 (1987).  The High Court of
the Trust Territory remained in existence to review decisions of the
highest court of Palau and to enforce the Occupational Safety and
Health Act in Palau.  Id. Section 6, 52 Fed. Reg. 27,860 (1987) (as
amended Jan. 14, 1988).

   2. This suit arises out of petitioners' challenge to the salary
plan for Trust Territory government employees, most of whom were
stationed at the Trust Territory government's headquarters on Saipan
in the Northern Mariana Islands.  The plan, which is no longer in use
(Pet. App. 11 n.5), included a longstanding three-level compensation
scheme, by which the salary of government employees was governed by
their nationality.  Citizens of Asian and Micronesian countries
received less pay than citizens of the United States or of countries
in Europe.  Pet. App. 11, 32-33.  Petitioners claimed that this salary
plan was discriminatory.

   Petitioners brought suit under, inter alia, 42 U.S.C. 1981 and
1983, as made applicable in the Northern Marianas by Section 502(a)(2)
of the Covenant.  Petitioners also brought claims based on the
Trusteeship Agreement and the Trust Territory Code.  /3/ Named as
defendants were the Trust Territory government and the High
Commissioner of the Territory.  /4/ Petitioners sought injunctive
relief against the employment scheme and damages from January 9, 1978,
the date on which Section 502(a)(2) and most other provisions of the
Covenant took effect.

   a. The district court ruled that the Trust Territory government and
the High Commissioner (in his official capacity, see Pet. App. 33 n.5)
were liable to suit for monetary damages pursuant to 42 U.S.C. 1981
and 1983.  /5/ The court noted that under Section 502(a)(2) of the
Covenant, "(t)hose laws . . . which are applicable to Guam and which
are of general application to the several States as they are
applicable to the several States" will apply to the Northern Marianas.
 Pet. App. 97.  Because there was no dispute that 42 U.S.C. 1981 and
1983 were applicable to Guam and to the several States, the court
concluded that the two statutes are generally applicable to the
Northern Marianas.  Ibid.

   The court then addressed the specific question whether the Trust
Territory government, located in the Northern Marianas but no longer
exercising governmental authority over it, was subject to Sections
1981 and 1983.  Pet. App. 97-118.  The court concluded that applying
the two statutes to the Trust Territory government was in accord with
the purposes underlying the Covenant.  Pet. App. 111-118.  /6/

   b. The district court also ruled that petitioners could maintain
their claims under the Trusteeship Agreement and the Trust Territory
Code.  With respect to the Trusteeship Agreement, the court held that
the Agreement imposed enforceable obligations on "federal agencies"
and ruled that the Trust Territory government and the High
Commissioner had that status.  Pet. App. 67-79.  Furthermore, and
notwithstanding its holding that the Trust Territory government and
High Commissioner were "federal agencies," the court held that the
sovereign immunity of the United States would not bar suits for
monetary damages for violations of the Trusteeship Agreement against
the Trust Territory government and the High Commissioner.  Pet. App.
79-84.  Finally, the court reached a similar conclusion with respect
to the civil rights provisions of the Trust Territory Code.  Pet. App.
148-149.

   3. On July 28, 1989, the court of appeals reversed the district
court's award of monetary damages.  /7/ Pet. App. 3-25.  The court
relied primarily on previous decisions concluding that the Trust
Territory government enjoyed a unique status as a "quasi-sovereign."
Pet. App. 13.  Unlike other territories over which the United States
exercises plenary control, the Trust Territory was administered by the
United States as Trustee, with the right of self-government ultimately
remaining in the people of the Trust Territory.  Ibid.  In light of
this unique status, prior decisions had held that U.S. laws do not
apply to the Trust Territory government "unless they are specifically
made applicable by Congress." Pet. App. 12.  In this case, the court
concluded that, despite the "historical accident" by which the Trust
Territory government was located in the Northern Marianas (ibid.),
"Congress did not intend section 502 of the Covenant to govern the
working of the Trust Territory government." Pet. App. 14.  The Court
therefore held that 42 U.S.C. 1981 and 1983 "do not apply to the Trust
Territory government." Pet. App. 14.  /8/

   The court also concluded that the Trusteeship Agreement did not
provide a basis for monetary relief, finding "no external indication
that Congress or the Executive intended the Trusteeship Agreement to
create a right to monetary damages," nor "anything in the language of
the Trusteeship Agreement (to) indicate (such) an intent." Pet. App.
16-17 (footnote omitted).  Similarly, the court found "no indication
that the Secretary of the Interior (or Congress through the Secretary)
intended the Trust Territory Code to give rise to monetary damages."
Pet. App. 17.  /9/

                               ARGUMENT

   The decision of the court of appeals is of extremely limited
effect, since it concerns the availability of money damages against a
unique governmental entity that has virtually ceased to exist.  In any
event, the decision is correct and does not conflict with the
decisions of this Court or of any other court.  The case therefore
does not warrant further review.  /10/

   1. As the court of appeals aptly observed, the functions of the
Trust Territory government are now "vestigial." Pet. App. 11 n.5.  The
Republic of the Marshall Islands and the Federated States of
Micronesia have become independent nations, and the Commonwealth of
the Northern Mariana Islands has become a part of the United States
under the Covenant.  Pet. App. 10.  Although the Trusteeship Agreement
remains in effect for Palau, the Trust Territory government's
responsibilities have for the most part been delegated to the
Assistant Secretary of the Interior for Territorial and International
Affairs.  Secretarial Order No. 3119, Section 3, 52 Fed. Reg. 27,859
(1987).  Therefore, the issues presented here, such as the
applicability of U.S. law to the Trust Territory, the sovereign
immunity enjoyed by the Trust Territory government, and the
interpretation of the Trusteeship Agreement and the Trust Territory
Code, have no continuing significance beyond the facts of this case.

   2. This Court's recent decision in Ngiraingas v. Sanchez, 110 S.
Ct. 1737 (1990), confirms the result reached by the court of appeals
barring petitioners' claims under 42 U.S.C. 1983.  In Ngiraingas, the
Court held that Congress did not intend to subject territorial
governments to suit for money damages when it acted in 1874 to extend
42 U.S.C. 1983 to cover territories, and that the Territory of Guam
itself thus may not be sued for damages under Section 1983.

   The only two factors distinguishing the Trust Territory from Guam
or other territories -- that as an "historical accident" (Pet. App.
12) the Trust Territory after 1979 had its seat of government outside
the area it governs, and that it enjoyed a unique status as
"quasi-sovereign" (Pet. App. 13) -- do not cast any doubt on the
application of Ngiraingas to this case.  The location of the seat of
government has nothing to do with Congress's intent as to whether a
territory should be subject to suit under Section 1983, and the unique
relationship between the Trust Territory and the United States
suggests, if anything, that its claim to immunity from money damages
is stronger than that of other territories.  Thus, the result in
Ngiraingas establishes that the Trust Territory and its High
Commissioner in his official capacity are not subject to suit under
Section 1983.  /11/

   3. The court of appeals' holding that the Trust Territory may not
be sued under 42 U.S.C. 1981 for money damages is correct and does not
conflict with any decision of this or any other court.  As the court
of appeals noted, the dispute in this case centered around the
district court's apparent holding that, because of the "historical
accident" (Pet. App. 12) by which the Trust Territory government was
located in the territory of the Commonwealth, laws of general
applicability within the Commonwealth (such as Section 1981) must be
applied to the Trust Territory government as to any other private
litigant there.  The court of appeals' decision that the Trust
Territory government is not subject to Section 1981 by virtue of
Covenant Section 502(a)(2) is supported by two related arguments.

   a. Decisions of both the District of Columbia and Ninth Circuits --
the onlhy two circuits to address this issue -- have established that,
unlike an ordinary United States territory or commonwealth -- see,
e.g., 48 U.S.C. 734 (Puerto Rico);  48 U.S.C. 1574(c) (Virgin Islands)
-- the Trust Territory is not generally subject to the laws of the
United States.  Because the United States "does not possess
sovereignty over the Trust Territory," Fleming v. Department of Public
Safety, 837 F.2d 401, 404 n.1 (9th Cir.), cert. denied, 109 S. Ct. 222
(1988);  accord, Commonwealth of the Northern Mariana Islands v.
Atalig, 723 FG.2d 682, 684 (9th Cir.), cert. denied, 467 U.S. 1244
(1984);  McComish v. Commissioner, 580 F.2d 1323, 1330 (9th Cir.
1978), the "unique trusteeship arrangement" under which the United
States administers the Trust Territory "differs widely from any of the
traditional relationships of governmental entities." Gale v. Andrus,
643 F.2d 826, 830 (D.C. Cir. 1980).  The courts of appeals have
therefore agreed that "the laws of the United States do not
automatically apply to the (Trust) Territory unless they are
specifically made applicable by Congress." Ibid. (emphasis in
original);  see also People of Saipan v. United States Dep't of
Interior, 502 F.2d 90, 96 n.6 (9th Cir.1974), cert. denied, 420 U.S.
1003 (1975);  People of Enewetak v. Laird, 353 F. Supp. 811, 815 (D.
Haw. 1973).  /12/

   In light of the decisions of the courts of appeals holding United
States law inapplicable to the Trust Territory absent specific
congressional action, the viability of petitioners' Section 1981 claim
depends on a showing of such congressional action.  Yet petitioners
cite no authority -- aside from Covenant Section 502(a)(2) --
suggesting that Congress intended to apply Section 1981 to the Trust
Territory.  /13/ Ordinarily, Congress manifests its itnent to apply a
particular federal statute to the Trust Territory by defining the term
"State" or "United States" to which the statute applies to include the
Trust Territory.  See People of Enewetak v. Laird, 353 F. Supp. 811,
815 n.8 (D. Haw. 1973) (collecting examples).  Not surprisingly,
neither the language nor the legislative history of 42 U.S.C. 1981 --
a statute passed following the Civil War -- suggests that the coverage
of the statute was intended to include the Trust Territory, which was
established under a unique arrangement with the U.N. Security Council
following World War II.

   With respect to Covenant Section 502(a)(2), there was no claim that
Congress enacted this provision with the intent to bring the Trust
Territory government, by virtue of its location within the
Commonwealth of the Northern Marianas, generally within the scope of
United States law.  As the legislative history of the Covenant makes
clear, the Section's purpose was to "provide a workable body of law
when the new government of the Northern Mariana Islands becomes
operative," S. Rep. No. 433, 94th Cong., 1st Sess. 76 (1975), not to
modify the presumption that federal law ordinarily does not apply to
the Trust Territory or its government.  Indeed, elsewhere in the
Covenant, where Congress intended to refer to the Trust Territory
government, it did so explicitly.  See Covenant Section 801, 90 Stat.
273 (providing for disposition of real and personal property of "the
Government of the Trust Territory of the Pacific Islands" upon
termination of Trusteeship Agreement).  Finally, it is not surprising
that Congress manifested no intent to alter the presumption that
federal law does not apply to the Trust Territory when it approved the
Covenant;  subjecting the Trust Territory government to United States
law within the Northern Marianas but not elsewhere could have led to
the imposition of varying and possibly inconsistent responsibilities
on the Trust Territory government.  /14/

   b. Sovereign immunity considerations also support the result
reached by the court of appeals.  /15/ It has long been established
that territorial governments are entitled to sovereign immunity.
Porto Rico v. Rosaly, 227 U.S. 270, 273 (1913);  Kawananakoa v.
Polyblank, 205 U.S. 349, 353 (1907).  The consistent line of appellate
decisions recognizing the unique "quasi-sovereign" status of the Trust
Territory establishes that the claim of the Trust Territory government
to sovereign immunity is, if anything, superior to that of an ordinary
territorial government.  Because sovereign immunity principles
generally forbid suit for money damages against a sovereign entity,
see, e.g., Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464
(1945), petitioners' Section 1981 claim against the Trust Territory
government for money damages must fail.  /16/

   The fact that the Trust Territory government was sued in a federal
court does not lessen its immunity.  Cf. Verlinden B.V. v. Central
Bank of Nigeria, 461 U.S. 480, 486 (1983) (foreign nations
historically had "complete immunity from suit" in U.S. courts, prior
to enactment of statute specifically restricting such immunity);
Nevada v. Hall, 440 U.S. 410, 416 (1979) (foreign sovereigns have
immunity as a "matter of comity," absent specific restriction of such
immunity);  Hans v. Louisiana, 134 U.S. 1 (1890) (State has immunity
in federal court unless consent is given).  Nor is immunity overcome
by the fact that petitioners sued the Trust Territory government under
federal law.  See The Schooner Exchange v. McFaddon, 11 U.S. (7
Cranch) 116 (1812);  Berizzi Bros. v. S.S. Pesaro, 271 U.S. 562
(1926).  Absent waiver or congressional abrogation of the Trust
Territory government's immunity, petitioners' Section 1981 claim for
money damages must fail.  /17/

   4. The court of appeals was also correct in holding that the
Trusteeship Agreement and the Trust Territory Code do not create
private rights of action for money damages against the Trust Territory
government, and that holding is not in conflict with the decision of
any other court.

   a. As petitioners concede (Pet. 25-26), a treaty creates judicially
enforceable rights "if the signing parties so desire," Cardenas v.
Smith, 733 F.2d 909, 918 (D.C. Cir. 1984), and the meaning of a treaty
"is to be ascertained by the same rules of construction and reasoning
which apply to the interpretation of private contracts." United States
v. Kember, 685 F.2d 451, 458 (D.C. Cir.), cert. denied, 459 U.S. 832
(1982).

   There is no provision in the Trusteeship Agreement authorizing
damages for a violation of its terms.  Indeed, it would be odd to find
such a privision, since treaties ordinarily do not give rise to
private causes of action, and sovereign immunity would ordinarily
shield the government from such liability.  Cf. 28 U.S.C. 1502 (Claims
Court has no jurisdiction over claim arising out of any treaty).  See
Nitol v. United States, 7 Cl. Ct. 405, 416-417 (1985) (Trusteeship
Agreement is a treaty for purposes of 28 U.S.C. 1502);  Peter v.
United States, 6 Cl. Ct. 768, 778-779 (1984) (same).  Moreover, a
private damages remedy would be inconsistent with the United States'
concern, evident in several Trusteeship Agreement provisions, for
retaining full freedom of action to protect its strategic interests in
the Territory.  See Trusteeship Agreement, art. 3, 61 Stat. 3302
(granting the United States "full powers of administration,
legislation and jurisdiction");  art. 5, 61 Stat. 3302 (permitting
United States to establish military bases and station armed forces in
the Trust Territory);  art. 13, 61 Stat. 3304 (permitting United
States to close "any areas" of the Trust Territory from time to time
"for security reasons").

   The legislative history shows that when Congress approved the
Trusteeship Agreement, it believed that the Agreement would not be
enforceable outside the forum of international opinion.  /18/ When
asked at a hearing whether the United Nations could "(o)verrule our
authority, or say that we are doing something that we should not, or
say we had to do it in some other way," the State Department's witness
replied that the authority of the United States "could not in any
degree be overruled in any circumstance, but it might be noted that if
we did not spend enough for health conditions or education or in other
ways, we might be subject to some criticism." Trusteeship Agreement
for the Territory of the Pacific Islands:  Hearing Before the Senate
Comm. on Foreign Relations, 80th Cong., 1st Sess. 22 (1947) (statement
of Benjamin Gerig).  See Pauling v. McElroy, 164 F. Supp. 390, 393
(D.D.C. 1958) (holding that the Trusteeship Agreement, like the U.N.
Charter and the principle of freedom of the seas, was "not
self-executing and do(es) not vest any of the plaintiffs with
individual legal rights which they may assert in this Court"), aff'd
on other grounds, 278 F.2d 252 (D.C. Cir.), cert. denied, 364 U.S. 835
(1960).

   b. The court of appeals was correct in holding (Pet. App. 17) that
the anti-discrimination provision of the Trust Territory Code, 1
T.T.C. Section 7, /19/ does not create a private right of action for
money damages against the Trust Territory government.  /20/ In
general, "a waiver of the traditional sovereign immunity 'cannot be
implied but must be unequivocally expressed'." United States v.
Testan, 424 U.S. 392, 399 (1976) (quoting United States v. King, 395
U.S. 1, 4 (1969)).  In the absence of anything resembling a clear
statement that the Trust Territory government would be liable for
money damages under Trust Territory Code Section 7, petitioners' claim
for damages is precluded.  /21/

   c. In sum, petitioners fail to recognize that the question whether
the Trusteeship Agreement or the Trust Territory Code may be enforced
by an injunction is distinct from the question whether the Agreement
or the Code provides for monetary damages.  The Court has rejected as
"unsound" the argument that "all substantive rights of necessity
create a waiver of sovereign immunity such that money damages are
available to redress their violation," United States v. Testan, 424
U.S. 392, 401 (1976).  Petitioners' argument is unsound for the same
reason:  the intent to carry out the Trusteeship Agreement's
obligations does not automatically translate into authority to provide
"financial recourse" for breach of those obligations.  Pet. App. 16.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   ROBERT S. GREENSPAN

   JACOB M. LEWIS

      Attorneys

   MAY 1990

   /1/ The judgment of the district court, which is unreported, was
filed on December 1, 1987, after calculation of damages and after
opinions concerning class certification (May 29, 1984), immunity,
punitive damages and jury trial (Feb. 4, 1985), federal sovereign
immunity (Aug. 12, 1985), cross-motions for summary judgment (June 6,
1986), and attorneys' fees (Nov. 13, 1987), all of which are also
unreported.

   /2/ The High Court of the Trust Territory retained some residual
authority.  Pet. App. 9 n.2.

   /3/ Petitioners also claimed that the employment plan violated
Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. 2000d et
seq., 2000e et seq.

   /4/ Also named as defendants were the Department of the Interior,
the Secretary of the Interior, and the United States.  Pet. App. 33.

   /5/ The district court also granted a permanent injunction against
future maintenance of the salary plan.  Pet. App. 11 n.5.

   /6/ With respect to Section 1983, the court also concluded (1) that
Section 1983 provided a cause of action against the Trust Territory
government for violations of the Due Process and Equal Protection
Clauses of the United States Constitution (Pet. App. 123-131);  (2)
the salary plan at issue was established under color of territorial
law (Pet. App. 131-138);  and (3) the Trust Territory government was a
suable "person" under Section 1983 (Pet. App. 138-139).

   /7/ The plan is no longer in use, and respondents did not contest
the injunction on appeal.

   /8/ Judge Kozinski, concurring as to this portion of the court's
opinion, would have found jurisdiction lacking over petitioners'
Section 1981 and 1983 claims on the ground that those claims were "in
essence suits against the United States," as to which there was no
applicable waiver of sovereign immunity.  Pet. App. 25.

   /9/ In other portions of its opinion, the court of appeals held
that petitioners' claims against the Trust Territory under Title VI of
the Civil Rights Act of 1964 were precluded because providing
employment was not the primary objective of federal financial
assistance to the Trust Territory government (Pet. App. 18), and that
petitioners' claims against the Trust Territory under Title VII of the
same act were barred because of petitioners' "complete failure" to
file complaints with the EEOC.  Pet. App. 19.  The court also
dismissed petitioners' claims against the federal defendants based on
1 Trust Territory Code Section 7 (Michie 1980) (Pet. App. 19-20),
found that petitioners' Trusteeship Agreement claims against the
federal defendants were barred by sovereign immunity (Pet. App. 21),
and upheld the district court's refusal to approve the addition of
nine Social Security workers to the petitioners' proposed class.  Pet.
App. 21-22.

   /10/ Petitioners do not appear to contest the court's determination
that damages may not be recovered against the United States, the
Department of the Interior, and the Secretary of the Interior (the
"federal respondents").  Pet. i (presenting questions of recovery
against the Trust Territory government alone).  Nonetheless, the
federal respondents retain an interest in the issues raised by the
petition, since the Trust Territory government is funded through
federal appropriations (Pet. App. 23-24) and any recovery by
petitioners would ultimately have to be obtained from the United
States.

   /11/ Contrary to petitioners' assertion, the Ninth Circuit in this
case did not "(m)odif(y)" (Pet. 16) its decision in Fleming v.
Department of Public Safety, 837 F.2d 401, 404-405 (9th Cir.), cert.
denied, 109 S. Ct. 222 (1988).  Fleming involved a suit under 42 U.S.
1983 for damages against the police department of the Commonwealth of
the Northern Mariana Islands, in which the Ninth Circuit held that
Section 1983 applied to the Commonwealth by virtue of Covenant Section
502(a)(2).  837 F.2d at 404-405.  The case did not involve claims
against the Trust Territory government, nor did the Court in Fleming
discuss the liability of the Trust Territory government under Section
1983 in any respect.  In any event, the result in Fleming appears to
have been overturned by this Court's holding in Ngiraingas.

   /12/ Indeed, the Trusteeship Agreement expressly provides that the
United States, as the administering authority, "may apply to the trust
territory, subject to any modifications which the administering
authority may consider desirable, such of the laws of the United
States as it may deem appropriate to local conditions and
requirements." Trusteeship Agreement, art. 3, 61 Stat. 3302.
Petitioners themselves acknowledge that art. 3 "give(s) some slight
support" to the contention that a federal law applies to the Trust
Territory "only if specifically set forth in that law" (Pet. 19).  As
the District of Columbia Circuit has noted, to hold that the laws of
the United States automatically apply "would place the United States
by judicial decision in a governmental posture involving the Trust
Territory that the United Nations never intended it to occupy." Gale,
643 F.2d at 830.

   /13/ The district court relied heavily on the fact that Congress
had taken no action excluding the Trust Territory government from laws
made generally applicable within the Northern Marianas by virtue of
Covenant Section 502(a)(2).  Pet. App. 113-114.  The courts of
appeals, however, have made it clear that Congress must act positively
to subject the Trust Territory to federal law;  merely to exclude the
Trust Territory from the scope of Section 1981 is insufficient.

   /14/ Petitioners' reliance on "the general rule" that "any person
within the jurisdiction is always amenable to the law of that
jurisdiction" is misplaced.  Pet. 16 (citing Sloan Shipyards Corp. v.
United States Shipping Bd. Emergency Fleet Corp., 258 U.S. 549
(1922)).  Given the unique, sovereign status of the Trust Territory
government, it may not, even in its waning days, be treated as if it
were simply another individual within the jurisdiction of the
Commonwealth of the Northern Marianas.

   /15/ The sovereign immunity issues in this case are similar to
those discussed in more detail in our amicus brief (at 22-28) in
Ngiraingas v. Sanchez, 110 S.Ct. 1737 (1990).  Copies of that brief
have been furnished to the parties.

   /16/ Sections 251-253 of Chapter 6 of the Trust Territory Code
(Michie 1980), modeled after the Tucket Act, 28 U.S.C. 1491, and the
Federal Tort Claims Act, 28 U.S.C. 1346 and 2674, waive the
Territory's sovereign immunity for certain purposes.  See Ikosia v.
Trust Territory of the Pacific Islands, 7 T.T.R. 274, 277 (High Court
Trial Div. 1975).  With respect to tort claims, the provisions waive
sovereign immunity only for negligence claims, 6 T.T.C. Section
251(c), and in addition exclude claims "based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty." 6 T.T.C. Section 252(2).  Contrary to petitioners'
contention (Pet. 27), therefore, they do not waive the Territory's
sovereign immunity for purposes of any of the claims in this case.

   /17/ Moreover, as Judge Kozinski noted in his concurring opinion
below, the suit may be regarded as one against the United States to
the extent that any money judgment would expend itself on the public
treasury (Pet. App. 23-25).  The United States, of course, has not
consented to any action against it.

   /18/ In a case seeking an injunction against approval by the Trust
Territory High Commissioner of a lease to construct a hotel on Saipan
prior to completion of an environmental evaluation, the Ninth Circuit
has held that the Trusteeship Agreement created enforceable rights
against the Trust Territory government.  People of Saipan v. United
States Dep't of Interior, 502 F.2d 90 (1974), cert. denied, 420 U.S.
1003 (1975).  Even if correct, the holding in People of Saipan that
the Trusteeship Agreement creates rights enforceable by injunction
would not establish that it creates a cause of action against the
Trust Territory government for money damages.  Cf. Quern v. Jordan,
440 U.S. 332 (1979).  Thus, the decision below did not "(e)ffectively
overrule()" People of Saipan (Pet. 16).  In any event, an intracircuit
inconsistency would not be a matter for this Court's review.

   /19/ 1 Trust Territory Code Section 7 provides that "(n)o law shall
be enacted in the Trust Territory which discriminates against any
person on account of race, sex, language or religion;  nor shall the
equal protection of the laws be denied." See Pet. App. 148 n.137.

   /20/ It is not clear that the petition raises the issue of the
availability of damages against the Trust Territory government
pursuant to 1 Trust Territory Code Section 7.  The second question
presented is ambiguous and, although the portion of the petition
entitled "Argument" does discuss provisions of the Trust Territory
Code waiving sovereign immunity, see Pet. 27 (discussed in note 16,
supra), there is no discussion of Section 7 in that portion of the
petition.

   /21/ As the court of appeals recognized (see Pet. App. 16 n.8),
even if the case involved a suit by a private party against an entity
not entitled to sovereign immunity, the absence of any indication of
intent in the Trusteeship Agreement or Trust Territory Code to permit
private suits for money damages would preclude implication of such a
private right of action.  Cf. Thompson v. Thompson, 484 U.S. 174, 179
(1988).  Petitioners cite no authority suggesting that any Trust
Territory decision has ever awarded damages for violation of 1 Trust
Territory Code Section 7.