Homayan Kabir v. CNMI PUBLIC SCHOOL SYSTEM, D.C. No. Defendant, 1:-7-cv-00034 and OPINION JONAS BARCINAS

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 sub-
mission. We posed the following two questions on certifica-
tion:
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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 miscon-
duct 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 under-
stood 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-of-
employment certification under CELRTCA based on the fac-
tual determination that the alleged tortious conduct did not
occur subject to the caveat that certification is subject to judi-
cial 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 self-
explanatory 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.
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