please the court your honors my name is james or onus i'm assistant attorney general to edward mann abuse and the attorney general to the commonwealth of the northern mariana islands we are here today on behalf of the defendants appellants the commonwealth of the northern mariana islands the commonwealth healthcare corporation and the official capacity defendants really that there's no capacity to fence to i thought you just why are they even in the case well your honor they're in this case because they were named by the plan oh i'm sorry why are they why are we need to worry about them when we resolve this appeal i guess is what i should have asked you your honor our reading of the complaint is that the official capacity defendants were also named under commonwealth law as official capacity to finance them or to recover damages your honor to be honest we're not clear from the complaint we believe that there is a theory of damage i believe the count eleven if it can be called account required that all that will decide the case for this panel today or at least what i believe to be the most important issue is whether or not the case department of public safety versus flemming requires this panel to affirm the decision of the district court we argue that it does not in department of public safety versus fleming the ninth circuit court of appeals held that the commonwealth of the northern mariana islands does not retain sovereign immunity to lawsuits on the basis of federal law brought in federal courts the court's decision was based on three main points the first point was the absence of the eleventh amendment from the covenant the second point was is that title forty two hundred three lawsuits could not be brought against the commonwealth were it to be granted its sovereign immunity the third point and the point that i believe that absolutely distinguishes flemming is that the the court quoted from the mary honest political status commission in its authoritative study of the covenant and in that quote the court recognized that the drafters of the covenant and the electorate believed that the government of the northern mar islands will have sovereign immunity so that it cannot be sued on the basis of its own laws without its consent your honour's we stand before you today sued on the basis of our own laws and we do not consent we believe informing when the court incorporated that language that it absolutely distinguished flemming from today obviously the two cases are very close but were it otherwise if the court had intended that day to snuff out all of the common all sovereign immunity then it would not have taken an express declaration of sovereign immunity and used that express declaration to take away that very sovereign immunity i don't believe there's a single case in american respect to certain claims in a particular form but not with respect to other claims in that same form because i found we've had plenty of cases where let's say the state waves its immunity in its own courts but that's all claims and then  have not been able to find a case where the state waived its sovereign immunity to to some cases in federal court but not all i don't think we have a problem here in that the commonwealth has not waived any of its sovereign immunity to commonwealth law claims in federal court and i agree that it it would be unique then for the court to find that we had sovereign immunity to our cases based on our own law but that we don't have sovereign immunity to the federal subject matter cases but respectfully the fleming case is an outlier case to begin with and it is my understanding that the commonwealth of the northern mariana islands is the only territory that has ever been found not to possess sovereign immunity which is curious because the commonwealth of the northern mariana islands actually possesses attributes of sovereignty that no other territory can lay claim to such as we control our customs territory we have full authority to do that furthermore and probably most importantly the covenant is an agreement between two sovereigns and the covenant cannot be altered by congress without the express consent of the northern mar islands i am interested in your way of distinguishing fleming calling had out right or case i'm sure judge wright hard would be interested how it becomes an outright or case two but what is an outright or case and how does it fit into what we have i understand we distinguish cases different ways but this is a new way of distinguishing the case forgive your honor we labeled as an outlier case because we couldn't find another sovereign immunity that reached the same result as fleming or that employed the same analysis as fleming with these blazing new trails but that doesn't mean it's wrong or an outline or it may be a new issue there never come up before that happens every time there's new issues came up i'm not sure we can i'm not sure i could sign on to an opinion that distinguished it because it's not right or opinion and i think the court understands that we're not trying to make a direct attack on fleming today but what we do what we are asking the court to do is if the court agrees with us that there is that fleming did not imply adly take into consideration this case then we believe that if the if the court employees the analysis that was used and quantock o o m pollie point and all of the other territorial immunity cases that it will in fact not reach the same result the plumbing to it in that inflaming of the eleventh amendment was one of the most important elements to that case the absence of it from the covenant but since the decision in fleming of course the eleventh amendment has been determined by the united states supreme court to not be the source of sovereign immunity in fact it just stands for the repudiation of chism b georgia but i think even more importantly inter tauriel immunity and sovereign immunity cases that the source of our sovereign immunity comes from the fact that the territory itself is the fountain of the rights upon which the plaintiff depends and given that we create those rights it then follows that if we did we're asking it to i believe it would severely undermined flemming i don't believe that this court has to overrule it though because funding does have that that technical difference between federal subject matter jurisdiction and the supremacy  federal law versus act like why do you say it would severely undermined i mean if we didn't extend to this case i was a little surprised to hear you say that why why do you think that's true well i believe to be true because if this court review the covenant and searches for a waiver of our sovereign immunity then there are only two ways that can be found and one is through an express waiver and having read the covenant many times i promise it is not there so then the second way is by such overwhelming implication that there are no other reasonable interpretations of the covenant but we know from the marianas political status commission that in fact there was another reasonable interpretation and that is that they believe that our right to self government meant that the district court would not have the authority to instruct our government officials on how they might best comply with their own lives but that doesn't that's i guess i'm sorry to quibble with you on the small point but it seems to me you're right to point out that fleming reliant on that very statement to support its holding that because the commonwealth specifically called out retaining immunity from claims for under commonwealth law but was silent as to claims brought under federal law that's what farming relied on to say that therefore there is no immunity under federal law there's no harm you know he would respect a federal law claim so i don't understand why you would say especially when my colleague here said he had some reluctance about signing on to an opinion that would do any damage you know in terms of under trying to undermine twenty why would you concede that what you want us to do is to gravely undermine the foundations of family i don't even think that's accurate  but i'm trying to figure out why did you say that well i suppose your honor if the decision if the if the court did not follow the same analysis of funding it did not go through the eleventh amendment analysis and the one nine hundred eighty three an so i guess i believe i misspoke and because the third prong is the most important and that is that in fact the framers of the covenant believed we would have our sovereign immunity i believe the court could write it could hold that but that expression sovereign immunity was more than enough to not only find a waiver but in fact the declaration of sovereign immunity that it is and to that effect that it's quite possible that the funny case wouldn't be i mean you'd like it to be severely undermined i understand that but certainly your honor it's not it's not really you know it's not even teed up for even for non bank or in this case to do anything with it because there is no there are no federal law claims in which the commonwealth or that corporation or name right i mean those are out different issues we will understand how the commonwealth feels about sovereign immunity but that's not really what is at stake in this case really the commonwealth is trying to get eleventh amendment immunity under the guise of sovereign immunity and they're different they're related but they're but they're different and the government cites to the analysis which as your honor pointed out the fleming court even took into consideration you know what i think and i just let's just look at it together i mean why doesn't that statement just isn't that why isn't that the beginning of the end of this case in a way that's just you know unfavorable for you well for two reasons first i think that the firming decisions are very well reasoned decision and fleming itself bases  immune in federal court for c n n my lawyer claims we were where they could not assert sovereign immunity in the cinema i courts because they've very clearly waive sovereign immunity  has nothing to do with this case except that that's what the commonwealth is trying to get this court to give it if the commonwealth has sovereign immunity or doesn't have a sovereign immunity doesn't really make a difference in this if you have your copy of fleming there why don't you just read this statement with me because i guess i just want to put this question to you point blank why doesn't this appeal begin and end with the statement that whatever that commission was said that the government of the northern mariana islands we all have so we'll retain sovereign immunity so that it cannot be sued on the basis of its own laws without its consent right so that's what you're trying to do and it hasn't consent immunity immunity from suit in federal court and sovereign immunity which is immunity from superior that ok you can divide up sarber your sovereign immunity however you want courts so that in the commonwealth statutes is actually a distinction now there's a problem with that and i addressed it in my in my brief and so i don't think that even the contract claims are barred in federal court  and that that particular detail hasn't been argued in before the district court but the district court said no immunity generally the fact that the in any way shape or form that we are waiving our sovereign immunity for claims brought under our our own law in federal court far from ever saying that they basically declared just the opposite which is that we are retaining our sovereign immunity what our court said in fleming is we conclude that entering into the covenant of commonwealth impliedly waived whatever immunity it might otherwise have enjoined against suits in the federal court arising under federal law that's a floating says fleming says for them since specifically it limits itself to cases or under the rising under federal law but that isn't this case this case it's arriving under commonwealth law and so to whatever extent federal court arising under federal law but then later on in the opinion the court then went in said that the exclusion of the eleventh amendment meant that the commonwealth intended to waive any immunity in federal court in federal hundred three action and against a number of defendants and we have a number of commonwealth law claims that invoke the supplemental jurisdiction of the district court and those claims are all bound up with the federal claims and the commonwealth law claims are included just as in order to help the plaintiff to accomplish a complete remedy so it is a federal case our basis for jurisdiction is federal question and these claims are all they're not separate claims they all arise out of the same transactions and occurrences that are involved in the one nine hundred eighty three claims and and basically that's what fleming says federal cases waiving in so these cases again when it has under rising under federal law then there's no problem with the covenant but the issue here is arising under state law but it doesn't arise under state law independent of the federal claims it's within the context of the federal three claims that we're talking about in this appeal don't arise under federal law the source of the law that you i mean these are your clients i don't i don't even know why we're discussing this you feel much them under that's the source of  that they're based i have nothing there you're right that say but that's not what the second part of the second part of fleming said it didn't say arising under federal law the second that second statement in fleming which i  defendants is a relative and the parties agreed to allow the case to be heard by the curious a new case is important usually the district judge would hold under which she had a conflict that's correct and rather than ask for this court to appoint someone else then if i may i just read what what from the decision by the by the judge in this case is defendants argue the flemings finding that commonwealth waived immunity can be restricted to claims based on federal law rather than state law yet such a reading would ignore fleming's rationale that quote when the drafters of the government rejected the project protections of the eleventh amendment they have also intended to forego any sovereign immunity from suit in federal court that the commonwealth my otherwise enjoy and then she went on she said in other words if the covenant drafters intended to waive the commonwealth's immunity only to lawsuits based on federal law then their decision to exclude the entire eleventh amendment which includes immunity to suits based on both state and federal law was illogical and i think that that's i think that that's correct and i think that that's why came out differently from where the measure of there seems to be sort of a history and we had we don't want outriders earlier it seems this is kind of a not right or that it's different from the way we treated in the past does that should that concern us as a court well it could except that if you look closely at those decisions your honor they're all actually and the fleming case are all actually applying essentially the same analysis you case the puerto rico case the guam case all actually were based on the organic acts that were involved in those classes so then we get back to the question of my colleague ask you about what the organic accent here which was based upon an important study that that took place when the northern marianas came in and it was very carefully over a lot of work and they seem to say there that they're a little bit in opposition to what you're suggesting here and more you can see more consistent it would seem to me at least the argument can be made more consistent the way the supreme court and harcourt have treated this issue before should that be should that concern us well why would we say no anima is different well i'm not i'm not sure i completely understand but but  we are we referring to the analysis here and the issue about that the understanding of the negotiators of the there was that the c n n my would have sovereign immunity because i don't see that as actually a problem in this case where we don't really have to say that the sienna my doesn't have sovereign immunity we can recognize the validity and the force and the effect of the of the commonwealth statutes that state what the government is is liable for and the limits of liability and the kinds of things that they're liable for in their in in their own courts at the very least and we're just and all we're saying is that in the context of negotiating the covenant the parties to those negotiations recognised that they whatever the commonwealth did with its sovereign immunity it wasn't going to separate federal court from local courts with regard to that immunity and that's even reinforced by the entire history of the c m i judiciary over there have been a number of cases in this court with regard to that but that history involved the federal court at the very beginning immediately after the creation of the commonwealth in hearing commonwealth law claims and those commonwealth law claims only went to local courts as the local judiciary was established and theirs and the district court maintained the public jurisdiction over the commonwealth trial court for a period of time and so now ultimately we have a very well established commonwealth supreme court which in the computer case very carefully avoided you know going head on on this question about federal  n the so what we have here your honor is not a matter of failure to respect the fundamental rights of self government and  function of the government that that was recognized in the case based on the acts of congress with respect to hawaii and and puerto rico we just have the fact that with respect to the commonwealth it was understood and agreed by the parties that the federal court would have to excuse me would have the full range of jurisdiction and that's what the that's what that's what i see a distinction between eleventh amendment and sovereign immunity here and that's why i say that what the government seeing that my government is trying to do here to push out the commonwealth law claims while the other claims are still there should be and this case your honors that the people had with what you want to argue first ok ok yes are or i would like to i would like to say to the statutory waiver issue that  opponent hasn't been able to provide any statutory waiver of subject of our immunity in federal courts if such language existed it would have been cited in his brief it does not exist there is no waiver  moreover if there were language that could be construed as a waiver that issue hasn't yet been addressed by the district court so if my opponent can find that language then if this case were sent back then the district court could look for a statutory waiver the question before the court today is whether or not the covenant waves are our sovereign immunity here the second point i would like to make i heard my opponent mention the full range of jurisdiction for the federal district court  the covenant i believe in section four zero to be limits the jurisdiction of the federal district court to that of any other federal district court in the united states of america and in no other federal district court in the united states of america could a sovereign be hailed into that federal court and ask to answer under its own laws and third your honour's what i would ask maybe in the final paragraph is a recognition that the people the northern mariana islands for hundreds of years injured political pressure and by entering into the covenant with the united states of america they were they were guaranteed their right to self government and that is what we are that's what we are here for today and we ask that the court recognize that our right to self government includes our right to decide our own issues in our own courts and to manage our own internal affairs your honors if there are no further questions thank you so much for your time i have been fascinated by your report and your colleagues i enjoyed this discussion your were very well prepared and it's a very difficult question but i feel much more comfortable about it after hearing your arguments thank you for your preparation both of you thank you so much great thanks very much