PETER PALICAN v. GOVERNMENT OF NORTHERN MARIANA ISLANDS

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United States Court of Appeals,Ninth Circuit.

Emerenciana PETER–PALICAN, Plaintiff–Appellant, v. GOVERNMENT OF the Commonwealth of the NORTHERN MARIANA ISLANDS; Eloy S. Inos, Governor of the Commonwealth of the Northern Mariana Islands, in his official capacity,* Defendants–Appellees.

No. 13–17099.

    Decided: September 17, 2014

Before ALFRED T. GOODWIN, STEPHEN S. TROTT, and MARY H. MURGUIA, Circuit Judges.Douglas F. Cushnie, Proas Lane, Saipan, Commonwealth of the Northern Mariana Islands, for plaintiff-appellant. Joey P. San Nicolas, Attorney General, David Lochabay, Assistant Attorney General, Office of the Attorney General, Saipan, Commonwealth of the Northern Mariana Islands, for defendant-appellee.

OPINION

Emerenciana Peter–Palican appeals from the district court's summary judgment in favor of the Commonwealth of the Northern Mariana Islands and Governor Eloy S. Inos (collectively, “the Commonwealth”) in Peter–Palican's 42 U.S.C. § 1983 action arising from her termination from her position as Special Assistant to the Governor for Women's Affairs. In an earlier appeal, we vacated the district court's judgment in favor of Peter–Palican because the Commonwealth Supreme Court's answer to our certified questions conclusively determined that Peter–Palican did not have a constitutionally protected interest in continued employment beyond the term of the governor who appointed her, and her termination without cause therefore did not violate the Due Process Clause. Peter–Palican v. Gov't of N. Mariana Islands, 695 F.3d 918, 920 (9th Cir.2012). We remanded, however, for the district court to address PeterPalican's retaliation, breach of contract, and estoppel claims in the first instance. Id. Peter–Palican now assigns error to the district court's grant of summary judgment on those claims. We have jurisdiction under 28 U.S.C. § 1291. On de novo review, Biggs v. Best, Best & Krieger, 189 F.3d 989, 993 (9th Cir.1999), we affirm.

The district court properly granted summary judgment on Peter–Palican's retaliation claim because Peter–Palican failed to raise a triable dispute as to whether she did not hold a “policymaking or confidential” position. See id. at 994–95 (“[A]n employee's status as a policymaking or confidential employee [is] dispositive of any First Amendment retaliation claim.”).

The district court properly granted summary judgment on Peter–Palican's breach of contract claim because it is undisputed that Peter–Palican held her position by virtue of appointment rather than by contract. See Riplinger v. United States, 695 F.2d 1163, 1164 (9th Cir.1983) (“Though a distinction between appointment and contract may sound dissonant ․, the distinction nevertheless prevails in government service. The terms of the appointment displace previous understandings, understandings that in other contexts might have created a contractual right.”).

The district court properly granted summary judgment on Peter–Palican's estoppel claim, first, because Peter–Palican failed to raise a triable dispute as to whether government officials engaged in any affirmative misconduct going beyond mere negligence, as required for equitable estoppel. See Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir.1985) (“[Equitable] estoppel against the government must rest upon affirmative misconduct going beyond mere negligence.” (citation omitted)); see also Mukherjee v. I.N.S., 793 F.2d 1006, 1009 (9th Cir.1986) (defining affirmative misconduct as “a deliberate lie ․ or a pattern of false promises”). Second, Peter–Palican failed to raise a triable dispute as to whether the Commonwealth “gain[ed] an advantage by asserting one position, and then later [sought] an advantage by taking a clearly inconsistent position,” as required for judicial estoppel. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001).

The Commonwealth's request for sanctions against PeterPalican and her attorney, raised in its answering brief, is denied.

AFFIRMED.

PER CURIAM:

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