Ninth Circuit holds that
application of Nonresident Workers Act in Commonwealth of Northern Mariana
Islands which are politically united to United States did not violate
nonresident plaintiff’s rights under U.S. Constitution and statutes
After World War II, the United
Nations classified most of the Micronesian Islands, including the Northern
Mariana Islands, as the “Trust Territory of the Pacific Islands” (TTPI). The
United States was to administer the TTPI under the obligation of “promoting the
development of the inhabitants of the trust territory toward self‑government or
independence.”
The Marshall Islands, Palau, and Federated States of Micronesia eventually became independent states. Unlike the other Pacific states, the Northern Mariana Islands worked out a permanent political union with the U.S.
On February 15, 1975, the parties signed The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (the Covenant). Congress’s Joint Resolution on March 24, 1976 brought it into force [Pub. L. No. 94‑241, 90 Stat. 263 (1976), 48 U.S.C. Section 1801 note].
Under Article 101 of the Covenant, the U.S. acquired sovereignty and “ultimate political authority” over the Commonwealth of the Northern Mariana Islands (CNMI). The Covenant explicitly makes certain portions of the U. S. Constitution, and most statutes in effect at the time of the Covenant’s enactment, apply to the CNMI. In addition, Congress can enact laws that affect the CNMI by naming the CNMI in any legislation not inconsistent with the Covenant.
The authority of the U.S. over the CNMI is not plenary, however, but arises only from the Covenant. In general, the Covenant confirms to the CNMI a substantial measure of self‑government, granting the people of the CNMI control over its internal affairs.
Germane to this case, the Covenant exempts the CNMI from U.S. immigration and naturalization laws as well as from its minimum wage laws. The immigration exemption allegedly arose from the CNMI’s fears that large numbers of Asian immigrants would migrate to the CNMI under U.S. numerical quotas. The exemption from American minimum wage laws rested on sensitivity to the CNMI’s stagnant economic condition.
In 1983, the CNMI passed the Nonresident Workers Act (NWA), 3 N. Mar. I. Code Section 4411 et seq. (1999). The Court summarizes its basic provisions as follows. “When applying to work under the NWA, a nonresident worker must submit an affidavit stating that he or she meets the qualifications of the job being sought, ... and has not been convicted of a felony or crime of moral turpitude. [Cites]”
“The worker must also disclose
his or her marital status and the existence of any dependents, [cite] and
undergo a physical examination once he or she arrives in the CNMI [cite]. A
nonresident is not allowed to work in the CNMI without a contract preapproved
by the [local] Department of Labor. [Cite].” [Slip op. 6-7]
In 1991, Bonifacio Vitug Sagana (plaintiff) entered the CNMI as a nonresident worker. After he had served as a security guard for three years, his employer fired him. Plaintiff later filed a successful suit for wrongful termination and unpaid wages. Between 1994 and 2000, plaintiff worked under temporary permits or as an unapproved nonresident worker.
In November 2000, a Department of Labor and Immigration official determined that, lacking valid work status, plaintiff had to leave the CNMI within twenty days. Plaintiff’s appeal of the order did not succeed.
The following month, plaintiff filed an action in the CNMI Superior Court against Joaquin A. Tenorio, in his official capacity as Secretary of the Department of Labor and Immigration, CNMI. It sought declaratory and injunctive relief, monetary damages and attorney fees. Defendants removed the case to the local federal court.
The district court dismissed some of plaintiff’s claims and the parties settled all but one of the remaining claims. The Settlement Agreement left it open for plaintiff to seek a declaration as to whether he “has the right to freely market his labor in the common occupations of life to any prospective employer without restriction and on equal terms as any citizen for so long a period as Plaintiff is lawfully admitted to the CNMI as a nonresident worker.” [Slip op. 8-9]
The court gave summary judgment to defendant and plaintiff filed an appeal. The U.S. Court of Appeals for the Ninth Circuit affirms.
Despite the district court’s
belief to the contrary, the Circuit Court finds that plaintiff’s pleadings and
motions sufficiently invoked 42 U.S.C. Section 1981(a). It provides that “all
persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts ... and to the full
and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens ...”
The right to dispose of one’s labor freely by contract is basic to the protections guaranteed by Section 1981. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n. 78 (1968). Congress, in reenacting the 1866 Civil Rights Act, ... extended the safeguards of the civil rights statutes to aliens. [Cite] In Graham v. Richardson, 403 U.S. 365 (1971), the Supreme Court determined that states could not restrict the eligibility for welfare benefits solely on the basis of alienage.”
“The question of who can claim the protections of Section 1981 is different from that which asks what protections it affords. ... The guarantee that ‘all persons’ may enjoy the same rights that ‘white citizens’ enjoy’ does not protect against discrimination on the basis of gender or religion, [cite]; disability, [cite]; age, [cite]; or political affiliation, [cite]. We hold that Section 1981 prohibits governmental discrimination on the basis of alienage.”
Defendant tried to persuade the Court that Section 1981 does not apply to the CNMI’s immigration laws. The Court, however, is not convinced. “Immigration authority controls, who, where, when, how, and for how long, and the conditions under which, a visitor may enter and remain in a territory, but it does not necessarily deal with all the rights and duties of persons in a given jurisdiction after the entry has taken place.”
“The Covenant provides that, with a few exceptions, all laws in existence at the time of the Covenant’s passage apply in the CNMI. [Cite] The CNMI [has] agreed to be bound by ... the Thirteenth and Fourteenth Amendments and the statutes enforcing them. [Cite].” [Slip op. 22-23]
With respect to the Equal
Protection Clause of the Fourteenth Amendment, plaintiff takes issue with both
the lower court’s choice of “rational basis” scrutiny and its application to
him. The appellate court points out that the Amendment “applies to the CNMI ‘as
if [it] were one of the several states.’ [Cites] Aliens who are in the
jurisdiction of the United States under any status, even as illegal entrants or
under a legal fiction, are entitled to the protections of the Fourteenth
Amendment.” [Cites]
“Equal protection claims are
considered under a two‑step analysis. First, an appellant must show that the
statute in question ‘results in members of a certain group being treated
differently from other persons based on membership in that group.’ [Cite]. This
hurdle is easily cleared. It is uncontested that the NWA is a discriminatory
statute, treating nonresidents differently from residents and citizens. ....”
“In the second step, a court assesses the legitimacy of a discriminatory statute under the appropriate level of scrutiny. ... The CNMI government argues that we should exercise rational basis review rather than intermediate scrutiny, ... We need not reach the question ..., as the NWA survives under either rational or intermediate levels of review.”
“When enacting the NWA, the CNMI legislature stated that ‘it is essential to a balanced and stable economy in the Commonwealth that residents be given preference in employment and that any necessary employment of nonresident workers in the Commonwealth not impair the wages and working conditions of resident workers.’ [Cite]. The legislature also recognized that the stagnant CNMI economy needed temporary alien labor because the small resident working force was substantially occupied in public sector employment.” [Slip op. 23-26]
“The CNMI legislature has seen fit to create a temporary class of employees for the purpose of bolstering the CNMI economy, giving job preference to its residents, and protecting the wages and conditions of resident workers while enforcing a system to control and regulate its visiting laborers. These are reasonable, important purposes.”
In the Court’s view, the NWA has also set up procedures adequate to ensure that the government will fairly administer its provisions. “[Plaintiff] has not shown that the NWA is not closely related to the CNMI’s important governmental goals of boosting its economy, giving preference to its resident workers, and providing a system of regulating and accounting for its nonresident workforce. The limitation of [plaintiff’s] ability to contract his labor under the NWA does not violate his equal protection rights.” [Slip op. 26]
The Court also rejects plaintiff’s due process objections. “The Due Process Clause prohibits restraints on liberty that are arbitrary and purposeless. ... ‘The ... Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’ Washington v. Glucksberg, 521 U.S. 702, 720‑21 (1997).
As early as 1915, the federal courts have held that “[r]estrictions on selecting and pursuing work are recognized by the Fourteenth Amendment’s Due Process Clause. ... More recently, the Supreme Court stated that ‘the ... Clause includes some generalized due process right to choose one’s field of private employment.’ Conn v. Gabbert, 526 U.S. 286, 291‑92 (1999).”
“However, the [Supreme] Court has never held that the right to pursue work is a fundamental right.
The Court has stated that the ‘generalized’ right to choose one’s employment ‘is nevertheless subject to reasonable government regulation.’ Conn, 526 U.S. at 292. Our court has described the judicial review which applies to laws infringing on nonfundamental rights as a very narrow one.” [Slip op. 31-32]
Citation: Sagana v.
Tenorio, No. 03‑15779, 2004 U.S. App. LEXIS 18824 (9th Cir. Sept. 7, 2004).
