Kabir claimed that during his employment with the school, Barcinas engaged in acts of sexual harassment toward the security guard, including episodes of unwelcomed sexual contact.
The federal claims were aimed at the Public School System and the local claim, for assault and battery, was against Barcinas alone.
In response to Kabir’s federal suit, the CNMI attorney general, representing Barcinas, filed a motion to substitute the commonwealth as the sole defendant against Kabir’s sexual assault claim.
The basis for the motion was the Commonwealth Employees Liability Reform and Tort Compensation Act of 2006, or CELRTCA, which protects commonwealth employees from lawsuits arising from actions taken during their employment.
Under CELRTCA, an employee is protected from suit, and the government is automatically substituted as defendant in the employee’s place, when the CNMI attorney general files with the court certification that “the defendant employee was acting within the scope of his/her office or employment at the time of the incident out of which the claim arose.”
In this case, the AG’s motion for substitution was accompanied by certification that Barcinas was acting within the scope of his employment as principal of Dandan Elementary School at the time of the alleged incident. The AG’s certification was based on the conclusion that the alleged incident never occurred.
After the AG filed his motion to substitute, he represented to the federal district court that once the commonwealth government took Barcinas’s place, the government would move to dismiss the assault and battery claims based on the Commonwealth Government Liability Act, which exempts the government from liability for certain misconduct undertaken by its employees, including assault and battery.
The district court denied the AG’s motion for substitution, holding that CELRTCA does not apply to suits against commonwealth employees for intentional misconduct because the Government Liability Act provides for governmental immunity for such conduct.
The court found that if the government was permitted to replace Barcinas as defendant — only to then claim immunity — the substitution would “frustrate[ the very essence of what the law is about.”
The denial of substitution was appealed to the U.S. Ninth Circuit Court of Appeals.
Using Rule 5 of the Commonwealth Rules of Appellate Procedure, which allows federal courts to certify unsettled questions of local law to the CNMI Supreme Court, the Ninth Circuit asked the CNMI Supreme Court to answer two questions concerning the interpretation of CELRTCA.
The first question was whether the CNMI attorney general can issue “scope-of-employment certification” when the employee being sued denies the complained of misconduct.
The second question was whether CELRTCA covers employees accused of sexual assault and battery, a tort traditionally understood to occur outside the scope of employment.
In response to the Ninth Circuit’s questions, the CNMI Supreme Court made the following rulings: (1) that the CNMI Supreme Court has jurisdiction to accept and answer certified questions from the federal courts; (2) that the CNMI attorney general can issue scope-of-employment certification where the government employee denies the alleged misconduct; (3) that the attorney general’s scope-of-employment certification is subject to judicial review; and (4) that CELRTCA covers government employees sued for negligent or wrongful conduct arising from action taken within the scope of employment — including intentional torts — but that under CNMI law, intentional torts will ordinarily fall outside the scope of employment.
These holdings track the U.S. Supreme Court’s interpretation of the Federal Employees Liability and Tort Reform Act, commonly known as the Westfall Act, which acted as the model for CELRTCA.
In its opinion the CNMI Supreme Court recognized that although it is not bound to adopt the reasoning of federal courts’ interpretations of federal statutes when interpreting CNMI law, given the similarity between the Westfall Act and CELRTCA, which are substantively identical, and given the CNMI legislature’s purpose in adopting CELRTCA, which was to cut down litigation costs in the representation of government employees sued for conduct within the scope of their employment, the CNMI Supreme Court found the U.S. Supreme Court’s reasoning persuasive and interpreted CELRTCA in accordance with the U.S. Supreme Court’s interpretation of the Westfall Act.
