Homayan Kabir v. CNMI Public School System, et al

Filing 920100701

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
HOMAYAN KABIR, Plaintiff-Appellee, v. CNMI PUBLIC SCHOOL SYSTEM, Defendant, and JONAS BARCINAS, Defendant-Appellant.

No. 08-16152 D.C. No. 1:-7-cv-00034 OPINION

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

This 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:

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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-0037CQU, 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

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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.