F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G A R Y R A M S E Y , Plaintiff-Appellee
,

v

.

E S T H E R L

. M U

N A , individually

and in her official capacity

as CEO of the Commonwealth Healthcare Corporation; J E A

N O L I V I A G R

A N T , individually and in her official capacity as Chief of the OB /GYN Department, Commonwealth Healthcare Corporation; S H E R L E E N O S M A N , individually

and in her official capacity

as Director of Medical Affairs, Commonwealth Healthcare Corporation; J O S E P H K E V I N V I L L A G O M E Z ; C O M M O N

W E A L T H H E A L T H C A R

E C O R P O R A T I O N ; C O M M O N W

E A L T H O F
T H E N O R

T H E R N M A R I A N A I S L A N D S , Defendants-Appellants
,

and

D O E S 1–10, Defendants. N o. 15-16309

D.C. No. 1:14-cv-00021

OPI NI ONR A M S E Y V

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A ppeal from the United States District Court for the District of the Northern Mariana I slands H eather L . Kennedy , Mag istrate J u dg e, Presiding

Arg ued and Submitted October 18, 2016

Honolulu, Hawaii

F iled F ebruary

28, 2017

B efore: J . Clifford W allace, J erome F arris, and Paul J

. W atford, Circuit J udg es.

Opinion by

J u dg e W atford

SUMMARY *

Sovereign Im m unity

I n an interlocutory

appeal, the panel reversed the district court’s d enial of a motion to d i s m i s s , o n the basis o f sovereig n immunity
, an a ction a g ainst the Commonwealth o f the Northern Mariana I slands and o ne of its ag encies broug ht by a doctor, who u sed to work at t h e p ublic hospital on Saipan, and who alleg ed th a t the Commonwealth and the public corporation that runs the h o s p i tal wrong fully denied him hospital privileg e s.

Plaintiff as s e rted contract and tort claims under Commonwealth law; his claims under federal law were

* T h is su m m ary co n stitu

tes n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R A M S E Y V

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dismissed on g rou n d s n o t at issue in this appeal. The panel held that Commonwealth retained its s o vereig n 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 c ontrol the outcome of this

case b ecause Fleming h el d only that the Commonwealth waived its sovereig n immunity w ith re s p e c t to “suits in federal court arising under federal law.” The panel h eld that the Commonwealth c ould not be sued without its consent on claims arisi n g under its own laws. On remand, the panel di r ected the district court to g rant the Commonwealth’s motion to dismiss the claims at issue in this appeal.

COUNSEL

J ames M. Z arones ( arg ued), Chief Solicitor Division, Office of the A t t o rney G eneral, Saipan, Commonwealth of the Northern Mariana I slands, for Defendants-Appellants.

S t e p h e n C. W oodruff (arg

ued), Saipan, Commonwea l t h o f t h e Northern Mariana I slands, for Plaintiff-Appellee.

OP INION

W A TF ORD, Circuit J udg e:

This is an action ag a inst the Commonwealth o f the Northern Mariana I slands and one of its ag encies, broug h t b y

a doctor who used to w o r k a t the public hospital on Saipan. (The case a l s o involves claims a g ainst certain individual defendants, but those claims are not before us.) The p laintiff alleg es that the Commonwealth and the publi c c o r porationR A M S E Y V

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that runs the hospital wrong fully denied him privileg es at the hospital. As relevant here, he asserts contract and tort c laims under Commonwealth law; his claims under federal law were dismissed o n g rounds not at issue in this appeal. The defendants moved to dismiss the contract and tort claims on the basis of sovereig n i m m u n i ty

. The district court reluctantly denied the motion, believing itself b o und by our decision in Fleming v. D epartment of Public Safety
, 837 F .2d 401 (9th Cir. 1988). W e have j u r i sdiction to h e ar the Commonwealth’s interlocutory a ppeal challeng ing the denial of sovereig n immunity

. S ee Del Campo v

. Kennedy
, 517 F .3d 1070, 1074 (9th Cir. 2008).

I n Fleming
, w e h eld that the Commonwealth does not enjoy sovereig n immunity in federa l co u rt with respect to claims broug ht under federal law. 837 F .2 d a t 407–08. W e reached that c onclusion after ex amining the foundational d o c u ment that c reated the Commonwealth, known as the Covenant to Establish a Commonwealth of the Northern Mariana I slands in Political Union with the United States o f America. See 48 U.S.C. § 1801 (sett i n g o u t the tex t of the Covenant). A lthoug h the Cov e n a n t does not ex plicitly address sovereig n immunity
, w e concluded t h a t a waiver o f immunity could b e inferred from o ne of its provisions, § 501(a). T hat section states: “To the e x tent that they are not applicable of their own force, the f ollowing provisions of the Constitution of the United States will be a pplicable within the Northern Mariana I slands as if the Northern Mariana I slands

were one o f the several States

. . . .” Section 501(a) then lists
roug h ly two doz en provisions of the United S t a t e s Constitution. Absent from that list is the Eleventh A m e ndment, which r ecog niz e s States’ immunity from p r i v a t e suits in federal court. See Hans v. Louisiana
, 134 U.S. 1, 15 (1890). W e held that the omission of the EleventhR A M S E Y V

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A m e n d m e n t s i g n a l e d a n i n t e n t i o n t o w a i v e t h e Commonwealth ’s sovereig n immunity in federal court with respect to claims arising u nder f ederal law

. F

l eming
, 837 F .2d at 407.

W e foun d c o n firmation of this implied waiver in the Section b y Section Analysis of the Covenant to Esta b l i s h a Commonwealth of the Northern Mariana Islands ( 1975), an authoritative source of the Covenant’s leg islativ e history prepared b y the Marianas Political Status Commission. Id. at 408. The Section by Section Analysis states that the Covenant provides the people of the Northern Mariana I slands with the rig ht to local se l f

-government under a constitution of their

own making
, there b y e nsuring that the “Northern Mariana I slands g overnment will be an independent g overnment, like that of the states.” Section b y Section Ana l

ysis
, p. 11. A s a consequence, “the Government of the North e r n Mariana I slands will have sovereig n immunity
, so t h at it cannot be sued on the basis of its own laws without its c o n s e n t

. ” Id. (emphasis added). W e c oncluded that this reference to sovereig n immunity
, limited to c laims arising under the Commonwealth’s own laws, supplied “ p ersuasive evidence” that th e d rafters of the Covenant intended to waive the Commonwealth’s sovereig n immunity with respect to c laims arising under federal law. Fleming , 837 F .2d at 408.

W e hold that Fleming does not control the outcome in this

case. Fleming held only that the Commonwealth waived its sovereig n immunity with respe c t t o “suits in federal court arising u nder federal law.” Id. at 407. The court did n ot have occasion to say whe ther the Commonwealth also waived its sovereig n immunity with respect to claims arising under Commonwealth law, for no such claims were at issue there. W h at the court sug g ested on that subject, ba s ed o n theR A M S E Y V

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statement in the Section by Section Analysis q uoted above, is that the Commonwealth did not waive its immunity from suit with respect to claims arising under its own laws.

Confronting t h e w aiver issue as a matter of first impression, we ag ree with the sug g e stion in Fleming that the Commonwealth retained its sovereig n immunity with respect to c laims a

rising under Commonwealth law. That conclusion is dictated by

two lines of Supreme Court precedent.

I n the first line, the Supreme Court h eld that Puerto Rico and Hawaii, both United States territories at the time, enjoy ed sovereig n immunity f

rom suits arising under their own laws. People of Porto Rico v. R o saly y Castillo
, 2 27 U.S. 270, 273–74 ( 1913); Kawa n anakoa v. Polyblank
, 205 U.S. 349, 353 (1907). T he Court held th a t e ach territory h ad been
g ranted the power to enact its own laws a n d t h us enjoy ed a level of a utonomy similar to that of the Stat e s

. S overeig n immunity barred suits arising

under their own laws because, absent consent, “there c an be no leg al righ t a g ainst the authority that makes the law on w hich th e r i ght depends.” Kawananakoa , 205 U.S. at 353.

The same rule a

p plies with equal forc e t o the Commonwealth. L ike territorial Hawaii and Puerto Rico, the Commonwealth has the power to e nact i t s o wn laws a nd indeed enjoy s an e v e n g reater level of leg islative a utonomy than Hawaii a

nd Puerto Rico did back then. Pue rto Rico’s Org a nic Ac t p r ovided that the f e d eral g overnment could unilatera l l y a nnul a

n y laws the territory enacted. F oraker Act, ch. 191, § 31, 31 Stat. 77, 83 (1900). Hawaii’s Org anic Act a uthoriz ed Cong ress to re peal or a mend a ny of the laws that remained in force from the terri t o r y ’ s time as an independent republic, and g ranted the territory ’s g overnor, anR A M S E Y V

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appointee of the federal g overnment, the rig ht to veto bills passed by th e l ocal leg islature. Act of Apr. 30, 1900,

c h

. 339, § § 6, 49, 6 6, 31 Stat. 141, 142, 149, 1 5 3

. T h e Commonwealth’s g o v ernm ent, by contrast, was e stablished by the Covenant and its own constitution, not by an Org anic Act passed by Cong ress, a nd the federal g overnment does not possess a similar veto authority with respect to laws enacted by the Commonwealth’s leg islature. See Covenant §§ 105, 203. Thus, if Hawaii and Puerto Rico enjoy ed s o v e r eig n immunity with respect to claims broug ht under their o wn laws, it is even clearer that the C o mmonwealth enjoy s

sove r eig n immunity with respect to claims arising under its own laws.

I n the second line o f p r ec edent, the Supreme Court has held, perhaps at odds with our r easoning in Fleming
, t h at a waiver of a State’s sovereig n immunity must be unequivocal. Pennhurst State School & H ospital v. H

a l derman
, 465 U.S. 89, 99 (1984). That means a w aiver will be found “ only where stated by the mo s t ex press lang uag e or by such overwhelming implications from the te x t a s [ will] leave no

room for any other reasonable construction.” Ed e lman v

. Jordan
, 415 U.S. 651, 6 73 (1974) (i n t e r nal quotation marks omitted).

The Covenant does not ex pressly waive the Commonwealth’s immunity from suits arising under its o wn laws, and we do not think the mere omission of the Eleventh Amendment from § 501(a) g ives rise to “overwhelming implications” that such a waiver was intended. I ndeed, as the
court stated in Fleming
, all evidence points in the opposite direction. Most sig nificantly
, the Section by Section Analysis indicates that the drafte r s o f the Covenant believed the Commonwealth would b e entitled to sovereig n immunityR A M S E Y V

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when sued on the b asis of its o wn laws. The d rafters likely viewed inclusion of the Eleventh Amendment in § 501(a) a s unnecessary to secure such immu n ity
, g iven the long line o f

au t h o r ity holding that a State’s immunity from private suits is an inherent aspect of sover ei gn t y , not a principle derived solely from the Eleventh A m e ndment. 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). I n addition, as no t ed above, the Covenant created a c ommonwealth with at least as much sovereig n

au t o n o m y as territorial Hawaii and Puerto Rico, both o f whic h enjoy ed sovereig n immunity by v irtue of the fact that they possessed the power to enact their own laws. I n the face of this equally r ea sonable ex planation for the Eleventh Amendment’s omissio n f ro m § 501(a), we cannot construe that omission as effecting a waiver o f the Commonwealth’s immunity from suits arising under its own laws.

Althoug h the Covenant itself does not contain an ex press

wa i v e r of sovereig n immunity
, the Commonwealth has enacted a statute that waives its immunity with respect to a limited set o f claims arisin g u n d er Commonwealth law. However, that statute provides that t h e C o mmonwealth’s o wn courts “shall have ex clusiv e o rig inal jurisdiction” to hear such claims. 7 C.M.C. § 2251. T he Supreme Court has h eld that a provision of this sort does not suffice to waive a State’s i mmunity from suit in federal court. I n stead, the statute o r

co n s titutional provision purporting to waive sovereig n immunity must “specifically indicate the State’s willing n ess to be sue d i n f

e deral court.” Atascadero S tate H ospital v

. Scanlon
, 473 U.S. 234, 241 ( 1985). Section 2 251 indicates precisely the opposite—that the Commonwealth is willing to be sued in certain circumstances, but n ot in federal court.R A M S E Y V

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I n short, we hold t h a t the Commonwealth may not be sued without its consent on claims arising under its own laws. On remand, the d istrict c ourt is d irected t o gr an t the Commonwealth’s motion to dismiss the claims at issue in this appeal.

REVERSED and REMANDED.