FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOMAYAN KABIR, 

Plaintiff-Appellee,

v. No. 08-16152

CNMI PUBLIC SCHOOL SYSTEM, D.C. No.  Defendant, 1:-7-cv-00034

and OPINION

JONAS BARCINAS,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of the Northern Mariana Islands

Alex R. Munson, Chief District Judge, Presiding

Argued and Submitted

February 9, 2009—Honolulu, Hawaii

Filed July 1, 2010

Before: Stephen Reinhardt, Sidney R. Thomas, and

Kim McLane Wardlaw,1 Circuit Judges.

Per Curiam Opinion

1This case was argued before Circuit Judges Reinhardt, Brunetti, and

Thomas. Following the untimely death of Judge Brunetti, Judge Wardlaw

was drawn by the Clerk of Court as a substitute judge pursuant to General

Order 2(g). 

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COUNSEL

David Lochabay, Office of the Attorney General, Saipan,

Commonwealth of the Northern Mariana Islands, for the

defendant-appellant.

Joseph E. Horey, O’Connor Berman Dotts & Banes, Saipan,

Commonwealth of the Northern Mariana Islands, for the

plaintiff-appellee.

OPINION

PER CURIAM:

After hearing oral argument, we vacated submission and

certified two legal questions to the Supreme Court of the

Commonwealth of the Northern Mariana Islands (“CNMI”).

We then stayed all proceedings pending receipt of the answer

to the certified questions and withdrew the appeal from submission. We posed the following two questions on certification:

9492 KABIR v. CNMI PUBLIC SCHOOL
1. Does the Commonwealth Employees’ Liability

Reform and Tort Compensation Act of 2006

(“CELRTCA”), 2006 N. Mar. I. Pub. L. 15-22, cover

employees accused of misconduct when the CNMI

Attorney General certifies that the alleged misconduct did not take place at all? That is, does CNMI

law follow the Supreme Court’s decision in Osborn

v. Haley, 549 U.S. 225 (2007)?

2. Does CELRTCA cover employees accused of

sexual assault and battery, a tort traditionally understood to occur outside the scope of employment?

The Supreme Court graciously accepted our certification

request. As to question one, the Supreme Court concluded

that “the CNMI Attorney General may issue scope-ofemployment certification under CELRTCA based on the factual determination that the alleged tortious conduct did not

occur subject to the caveat that certification is subject to judicial review. That is, CNMI law follows the U.S. Supreme

Court’s decision in Obsorn v. Haley, 549 U.S. 225 (2007).”

Kabir v. CMNI Public School System, No. 2009-SCC-0037-

CQU, 2009 MP 19, ¶ 49 (N.M.I. Dec. 31, 2009). 

As to question two, the Supreme Court concluded that,

“CELRTCA covers government employees sued for negligent

or wrongful conduct arising from actions taken within the

scope of employment—including intentional torts—but under

CNMI law, intentional torts will ordinarily fall outside the

scope of employment.” Id.

Having received the answer to the certified questions,

which are dispositive of this appeal, we hereby resubmitted

the appeal for decision. 

The reasoning of the CNMI Supreme Court is selfexplanatory and dispositive. The judgment of the district court

is vacated, and the case remanded. On remand, Kabir has the

KABIR v. CNMI PUBLIC SCHOOL 9493
opportunity to challenge the Attorney General’s certification

through an evidentiary hearing. Kabir, 2009 MP 19, ¶ 31; see

also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420

(1995).

VACATED and REMANDED.

9494 KABIR v. CNMI PUBLIC SCHOOL