FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY RAMSEY,

Plaintiff-Appellee,

v.

ESTHER L. MUNA, individually and

in her official capacity as CEO of the

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.

No. 15-16309

D.C. No.

1:14-cv-00021

OPINION
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.

StephenC. Woodruff (argued), Saipan, Commonwealth ofthe

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 Analysisstates 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 byCongress, 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 theCommonwealth’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.