FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMERENCIANA PETER-PALICAN, 

Plaintiff-Appellee,

v.

GOVERNMENT OF THE No. 10-17153

COMMONWEALTH OF THE NORTHERN D.C. No.

MARIANA ISLANDS; BENIGNO R.  1:07-cv-00022

FITIAL, 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 and

Governor 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 now

received its answer. Based on the meaning of Article III, section 22 as determined by the final arbiter of Commonwealth

law, 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

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9609
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 the

2005 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-Palican

had 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 entered

judgment 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 at

1017. 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 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
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 of

the 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 Special

Assistant 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 monetary

damages 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-Palican

v. 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:

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9611
[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 establishes

that 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 Acting

Governor Villagomez were constitutionally allowed to terminate her without cause.

The Commonwealth Supreme Court’s prompt decision is

attached 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 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
opinion as well as that of the Commonwealth Supreme Court,

set forth in the Appendix.

VACATED and REMANDED.

PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9613
APPENDIX

9614 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9615
9616 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9617
9618 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9619
9620 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9621
9622 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9623
9624 PETER-PALICAN v. NORTHERN MARIANA ISLANDS
PETER-PALICAN v. NORTHERN MARIANA ISLANDS 9625