### FOR PUBLICATION


## UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

#  E MERENCIANA 

### P ETER 

### -P ALICAN 

### , Plaintiff-Appellee,

v. No. 10-17153 G OVERNMENT OF

### T HE 

### C OMMONWEALTH OF THE

### N ORTHERN 

### D.C. No. 

#  M ARIANA 

### I SLANDS 

### ; B ENIGNO 

### R. 1:07-cv-00022 F ITIAL 

### , Governor of the OPINION Commonwealth of the Northern Mariana Islands, in his official capacity, Defendants-Appellants. 

# 

Appeal from the United States District Court for the District of the Northern Mariana Islands John C. Coughenour, District Judge, Presiding

Argued February 16, 2012 Honolulu, Hawaii

Submission Deferred March 12, 2012 Resubmitted August 15, 2012

Filed August 22, 2012

Before: Alfred T. Goodwin, Stephen S. Trott, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Trott

9607

### COUNSEL

Gilbert J. Birnbirch, Office of the Attorney General, Saipan, MP, for the defendants-appellants.

Douglas F. Cushnie, Saipan, MP, for the plaintiff-appellee.

OPINION

TROTT, Circuit Judge:

The Commonwealth of the Northern Mariana Islands andGovernor Benigno R. Fitial (collectively, “the Commonwealth”) appeal the district court’s judgment in favor of plaintiff Emerenciana Peter-Palican. Peter-Palican alleges that she was terminated without cause from her position as Special Assistant to the Governor for Women’s Affairs in violation of Article III, section 22 of the Commonwealth Constitution. The district court agreed, determining that Peter-Palican had a property interest in continued employment as the Special Assistant and was terminated without due process by the incoming governor.

Because the resolution of this case requires an interpretation of the Commonwealth Constitution, we certified questions to the Commonwealth Supreme Court and have nowreceived its answer. Based on the meaning of Article III, section 22 as determined by the final arbiter of Commonwealthlaw, we hold that Peter-Palican did not have a protected interest in continued employment beyond the term of the governor who appointed her. Therefore, her termination without cause did not violate the Due Process Clause, and the district court’s judgment cannot stand.

I

The relevant facts of this case are set forth in our certification order, Peter-Palican v. Government of Northern Mariana 9609 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS

### Islands , 673 F.3d 1013 (9th Cir. 2012). In brief, Peter-Palican was appointed as Special Assistant to the Governor for Women’s Affairs in April 2002 by then-Governor Juan Babauta. Id. at 1015. Governor Fitial defeated Babauta in the2005 gubernatorial race, and shortly thereafter Acting Governor Timothy Villagomez informed Peter-Palican that her employment had ended upon the change in administration and asked her to leave; there was no allegation that Peter-Palicanhad done anything wrong or had engaged in conduct constituting “cause” for her termination. Id.

II

Article III, section 22 of the Commonwealth Constitution describes the position of the Special Assistant for Women’s Affairs and states, “The special assistant may be removed only for cause.” N. Mar. I. Const., art. III, § 22 (“section 22”). Peter-Palican sued the Commonwealth under 42 U.S.C.§ 1983, arguing that section 22 protected her against termination without cause even by a new administration. PeterPalican also asserted claims of retaliation, breach of contract, and estoppel.

After granting partial summary judgment to Peter-Palican and presiding over a bench trial, the district court enteredjudgment in favor of Peter-Palican, holding that (1) under section 22, Peter-Palican had a property interest in continued employment even beyond the term of the governor who appointed her, and (2) her termination without cause therefore violated the Due Process Clause. Peter-Palican , 673 F.3d at1017. The district court ordered the Commonwealth to reinstate Peter-Palican “to a Commonwealth government position at a salary equal to or greater than that she had as Special Assistant for Women’s Affairs.” Id. Recognizing that PeterPalican could not recover monetary damages under 42 U.S.C. § 1983, **1** 

### the district court also implied a private right of action

**1** Only “persons” are subject to suit under § 1983, and the Commonwealth and its officials acting in their official capacity are not considered “persons” when sued for damages. Peter-Palican , 673 F.3d at 1017. 9610 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS

### against the Commonwealth for violation of section 22 — a claim Peter-Palican had not pleaded — and awarded her approximately $216,000 in damages. Id. The district court did not rule on Peter-Palican’s other claims. The Commonwealth appealed.

On March 12, 2012, we certified to the Supreme Court ofthe Commonwealth of the Northern Mariana Islands the following questions:

1. Does Article III, section 22 of the Commonwealth Constitution, which states that “[t]he Special Assistant may be removed only for cause,” mean that the Special Assistant may never be removed from that position without cause—even beyond the term of the appointing governor—or does it mean that the SpecialAssistant is protected against termination without cause only during the term of the appointing governor?

2. If the answer to the above question is that Article III, section 22 of the Commonwealth Constitution means the Special Assistant may never be removed for cause even beyond the term of the appointing governor, does Commonwealth law imply a private right of action for monetarydamages against the Commonwealth or its officials for violation of that section?

Id. at 1014. The Supreme Court graciously accepted certification and, on June 29, 2012, issued its opinion in Peter-Palicanv. Government of the Commonwealth of the Northern Mariana Islands , 2012 MP 7 (N. Mar. I. 2012).

The Commonwealth Supreme Court answered the first certified question as follows: 9611 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS

### [W]e hold that article III, section 22 of the Commonwealth Constitution . . . which states that “[t]he special assistant may be removed only for cause,” means that the Special Assistant to the Governor for Women’s Affairs . . . is protected against termination without cause only during the term of the appointing
governor.

Id. at ¶ 2. Because the answer to the first question is dispositive of the issues in this appeal, the Supreme Court declined to address the second certified question. Id.

III

[1] The Commonwealth Supreme Court’s authoritative interpretation of Commonwealth law conclusively establishesthat Peter-Palican did not have a property interest in continued employment once the new governor took office. Therefore, although she was protected from termination without cause during the term of Governor Babauta — the governor who appointed her — incoming Governor Fitial and ActingGovernor Villagomez were constitutionally allowed to terminate her without cause.

The Commonwealth Supreme Court’s prompt decision isattached to this opinion as the Appendix, and we adopt its reasoning and its conclusions. Because Peter-Palican no longer possessed a property interest in continued employment once the new governor took office, her due process claims fail. And because the Commonwealth did not violate section 22 or the Due Process Clause by terminating her without cause, any implied constitutional tort claim fails as well.

[2] Therefore, we vacate the district court’s judgment in favor of Peter-Palican, including its award of damages and injunctive relief. Because the district court did not address Peter-Palican’s retaliation, breach of contract, or estoppel claims, we remand for further proceedings consistent with this 9612 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS

### opinion as well as that of the Commonwealth Supreme Court, set forth in the Appendix.

VACATED and REMANDED. 9613 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS

### APPENDIX 9614 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9615 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9616 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9617 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9618 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9619 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9620 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9621 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9622 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9623 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9624 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS9625 P ETER -P ALICANv. N ORTHERNM ARIANA I SLANDS