Oden v. Northern Marianas , 440 F.3d 1085 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEREDITH ODEN, 
Plaintiff-Appellant,
v. No. 00-16594
NORTHERN MARIANAS COLLEGE;  D.C. No.
AGNES MCPHETRES; JOHN DOES, CV-98-00020-ARM
1-V; BRUNO DALLA POZZA;
BOARD OF REGENTS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, Chief Judge, Presiding
MEREDITH ODEN,  No. 03-16802
Plaintiff-Appellant,
v.  D.C. No.
CV-01-00032-GA
NORTHERN MARIANAS COLLEGE,
OPINION
Defendant-Appellee.

Appeal from the Supreme Court
of the Commonwealth of the Northern Mariana Islands
Demapan, Chief Justice, and Castro and Manglona,
Justices, Presiding
Argued November 1, 2004;
Resubmitted February 8, 2006
Honolulu, Hawaii
Filed March 6, 2006
2189
2190 ODEN v. NORTHERN MARIANAS COLLEGE
Before: Melvin Brunetti, Susan P. Graber, and Jay S. Bybee,
Circuit Judges.
Opinion by Judge Graber
2192 ODEN v. NORTHERN MARIANAS COLLEGE
COUNSEL
Douglas F. Cushnie, Saipan, MP, for the plaintiff-appellant.
Tred R. Eyerly, Honolulu, Hawaii, and F. Matthew Smith,
Law Offices of Vincente T. Salas, Saipan, MP, for the
defendants-appellees.
OPINION
GRABER, Circuit Judge:
This is a consolidated appeal from two judgments in favor
of Defendants Northern Marianas College, its Regents, and its
President. The first appeal is from the District Court for the
Northern Mariana Islands (No. 00-16594). In that appeal we
ODEN v. NORTHERN MARIANAS COLLEGE 2193
must determine whether the court’s grant of summary judg-
ment was proper on Plaintiff’s claim that Defendants violated
Title IX of the Civil Rights Act of 1972 by exhibiting deliber-
ate indifference to the sexual harassment that she suffered at
the hands of a College teacher. The second appeal is from a
local court, the Supreme Court of the Commonwealth of the
Northern Mariana Islands (“CNMI”) (No. 03-16802). That
appeal requires us to answer a preliminary jurisdictional ques-
tion: whether, under 48 U.S.C. § 1824, we can consider
appeals from a local CNMI court that were filed before, but
remained pending after, May 1, 2004.
In the appeal from the district court (No. 00-16594), we
conclude that summary judgment was proper because, on this
record, no reasonable finder of fact could conclude that
Defendants acted with deliberate indifference to Plaintiff’s
complaint of sexual harassment. In the appeal from the CNMI
Supreme Court (No. 03-16802), we conclude that in light of
our recent decision, Santos v. Guam, No. 03-70472, 2006 WL
118375 (9th Cir. Jan. 3, 2006), we lack jurisdiction to decide
an appeal that was filed before, but remains pending after,
May 1, 2004.
Accordingly, in No. 00-16594 we affirm the district court’s
summary judgment in favor of Defendants, and in No. 03-
16802 we dismiss the appeal from the CNMI Supreme
Court’s decision.
FACTUAL BACKGROUND
Plaintiff Meredith Oden enrolled in music classes at North-
ern Marianas College in January 1996. The hour-long classes
were taught by Bruno Dalla Pozza, a friend of Plaintiff’s
father. Plaintiff received individual instruction from Dalla
Pozza; no one else was present during her lessons. The les-
sons took place twice a week until Plaintiff stopped attending
at the end of February 1996.
2194 ODEN v. NORTHERN MARIANAS COLLEGE
At first the interactions between teacher and pupil were
innocuous. Dalla Pozza kissed Plaintiff on the cheek and gave
her hugs. Plaintiff viewed that conduct as affectionate but not
inappropriate, especially because early on it occurred in front
of her father.
After Plaintiff began taking classes from Dalla Pozza, how-
ever, his behavior became increasingly inappropriate and dis-
turbing to Plaintiff. He rubbed Plaintiff’s back and then
moved his hands downward to touch her buttocks. On a num-
ber of occasions he kissed her on the lips and forced his
tongue into her mouth. During one session he touched her
breasts and rubbed his body against hers. Dalla Pozza also
talked with Plaintiff about sexual topics and commented about
her body.
After about six weeks of attending music classes with Dalla
Pozza, Plaintiff met with a college counselor, Susan Satur,
and informed her of Dalla Pozza’s actions. Soon thereafter
Satur and another college counselor, Lynn Newport, met with
Plaintiff and her father.
The President of the College, Agnes McPhetres, learned of
Plaintiff’s allegations at the very earliest—crediting Plaintiff’s
father—in February 1996. McPhetres responded by assigning
Satur and Newport to act as advocates for Plaintiff. They
helped her drop Dalla Pozza’s class. They met with her at
least 14 times to provide counseling. Satur helped her prepare
a formal complaint charging Dalla Pozza with sexual harass-
ment; Plaintiff filed it on March 8, 1996.
Two days after Plaintiff filed her complaint, the College’s
Director of Human Resources met with Dalla Pozza regarding
the allegations. The Director specifically informed Dalla
Pozza that he was not to contact, or attempt to contact, Plain-
tiff in any way.
Ten days after filing her complaint, Plaintiff received a let-
ter from McPhetres stating that, in accordance with College
ODEN v. NORTHERN MARIANAS COLLEGE 2195
policy, Dalla Pozza had been given a copy of the complaint,
and informing Plaintiff that he had denied the charges.
Because of the denial, the College explained, Dalla Pozza
could not be disciplined immediately. Plaintiff was told that
she had 15 days within which to request a formal hearing. She
did so, and the College began to form an investigative Com-
mittee on Sexual Harassment in accordance with its policy.
After filing the complaint, Plaintiff continued to attend
other classes at the College. She encountered Dalla Pozza
twice, on campus, while her harassment claim was pending.
On the first occasion, Plaintiff was near a College snack bar
when she saw Dalla Pozza across the room, and they made
eye contact. She then ducked into a nearby restroom and hid
in a stall. A few minutes later, she heard Satur, who happened
to be washing her hands in the restroom, say hello to Dalla
Pozza. He had stepped into the doorway of the women’s rest-
room, apparently having followed Plaintiff there.
On a separate occasion, Plaintiff passed Dalla Pozza while
walking across campus. He made an unintelligible comment
to her.
The College’s Human Resources Manual requires that a
hearing be convened within 30 days after the filing of a for-
mal complaint; that 30-day period expired on April 7, 1996.
Notwithstanding that policy, the College did not hold a formal
hearing on Plaintiff’s complaint until January 3, 1997. Shortly
after the hearing, the College’s Committee on Sexual Harass-
ment issued a written decision stating that it agreed unani-
mously that Dalla Pozza was “guilty of sexual harassment
toward” Plaintiff. The Committee recommended disciplinary
action, short of dismissal. McPhetres accepted the recommen-
dation. She suspended Dalla Pozza without pay for four
weeks, denied him a raise for one year, prohibited him from
engaging in one-on-one instruction for two years, put him on
2196 ODEN v. NORTHERN MARIANAS COLLEGE
probation for five years, and placed a letter of reprimand in
his personnel file.
PROCEDURAL HISTORY
In 1998, Plaintiff filed a complaint in federal district court
against Dalla Pozza, the Secretary of Education of the United
States, and the College, its Regents, and its President. Plaintiff
raised both federal and nonfederal claims. The court dis-
missed the claims against the Secretary of Education, a ruling
that Plaintiff has not challenged. Additionally, the court
entered summary judgment in favor of the College, its
Regents, and its President, and dismissed all the supplemental
nonfederal claims against those parties without prejudice. See
28 U.S.C. § 1367(c)(3); Acri v. Varian Assocs., Inc., 114 F.3d
999, 1000 (9th Cir. 1997) (en banc) (holding that a district
court has discretion to decline to exercise supplemental juris-
diction over nonfederal claims if it has dismissed all claims
over which it had original jurisdiction).
In 2000, Plaintiff proceeded to trial against Dalla Pozza. A
jury awarded her both general and punitive damages.
Following the entry of judgment on the jury’s verdict,
Plaintiff proceeded along two tracks. First, she timely
appealed to this court, challenging the district court’s sum-
mary judgment against her. The Ninth Circuit heard the
appeal and issued an opinion in Oden v. Northern Marianas
College, 284 F.3d 1058 (9th Cir. 2002), vacated, 539 U.S.
924 (2003). When the Supreme Court vacated that opinion it
remanded the case for reconsideration in light of Nguyen v.
United States, 539 U.S. 69, 83 (2003), which held that only
Article III judges may comprise a court of appeals panel. As
in Nguyen, the Oden court had included an Article IV district
judge from CNMI, sitting by designation. The case is now
before the present panel, which consists entirely of Article III
judges, on remand.
ODEN v. NORTHERN MARIANAS COLLEGE 2197
Meanwhile, in 2000, Plaintiff brought suit against the Col-
lege in the CNMI Superior Court, asserting local-law claims
arising from the sexual harassment to which Dalla Pozza had
subjected her. The CNMI Superior Court dismissed the claims
on the ground that the local two-year statute of limitations had
run. Plaintiff appealed to the CNMI Supreme Court, which
affirmed the dismissal of her claims. Plaintiff timely appealed
to this court before May 1, 2004.
We have consolidated Plaintiff’s appeal from the district
court’s summary judgment with her appeal from the CNMI
Supreme Court.
STANDARD OF REVIEW
We review de novo a grant of summary judgment. Buono
v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). Likewise, we
review de novo the interpretation of a federal statute. Harper
v. U.S. Seafoods LP, 278 F.3d 971, 973 (9th Cir. 2002).
DISCUSSION
A. District Court’s Summary Judgment Under Title IX
Title IX provides that no person “shall, on the basis of sex,
. . . be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). It is undisputed
that the College receives federal financial assistance; the issue
is whether, under the governing interpretation of Title IX, the
record would permit a finding for Plaintiff when all evidence
is construed in her favor.
[1] The Supreme Court, in Gebser v. Lago Vista Indepen-
dent School District, 524 U.S. 274, 290 (1998), held that dam-
ages are available under Title IX only if “an official who at
a minimum has authority to address the alleged discrimination
and to institute corrective measures on the recipient’s behalf
2198 ODEN v. NORTHERN MARIANAS COLLEGE
has actual knowledge of discrimination in the recipient’s pro-
grams and fails adequately to respond.” The Court expressly
declined to impose liability on “principles of respondeat supe-
rior or constructive notice,” instead demanding actual notice
to an official of the defendant. Id. at 285; see also Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 641 (1999) (rein-
forcing the holding of Gebser).
[2] McPhetres, President of the College, had authority to
take corrective measures. She learned of Plaintiff’s claims of
sexual harassment against Dalla Pozza—according to Plain-
tiff’s father—in February 1996. It is not disputed that she had
prompt actual notice of the formal sexual harassment com-
plaint, which was filed on March 8, 1996.
Plaintiff’s main focus is on the second requirement of Geb-
ser. She contends that the College reacted with deliberate
indifference to her allegations of sexual harassment by delay-
ing the formation of a committee and the commencement of
a hearing for several months—indeed, until the following
school year.
We must decide whether a reasonable fact-finder could
conclude that the College’s response was “clearly unreason-
able in light of the known circumstances.” Davis, 526 U.S. at
648. In other words, we must decide whether, on this record,
one could find that the College made “an official decision . . .
not to remedy the violation.” Gebser, 524 U.S. at 290.
The College began to act as soon as it became aware of
Plaintiff’s allegations. Two counselors were assigned to Plain-
tiff to provide psychological and practical support; they met
with her more than a dozen times; they assisted her in filing
a formal complaint; and they helped her drop Dalla Pozza’s
class immediately. After the complaint was filed, the College
served it on Dalla Pozza. He was instructed not to have any
contact with Plaintiff. Eventually a hearing took place, Plain-
ODEN v. NORTHERN MARIANAS COLLEGE 2199
tiff was believed, and Dalla Pozza was significantly disci-
plined.
[3] Plaintiff rests her assertion of deliberate indifference
first on a nine-month delay (April 1996 to January 1997) in
convening a hearing. That delay contravenes College policy,
because the Human Resources manual requires a hearing
within 30 days after the filing of a formal complaint. None-
theless the record fails to demonstrate that the delay was more
than negligent, lazy, or careless. The College relied in part on
its understanding that Plaintiff was looking for a lawyer to
represent her and, later, in part on Plaintiff’s move to New
Mexico. Furthermore, there is no evidence in the record that
the delay prejudiced Plaintiff. We need not and do not decide
that a delay never can constitute deliberate indifference; we
decide only that this record does not permit an inference that
the delay was a deliberate attempt to sabotage Plaintiff’s com-
plaint or its orderly resolution.
[4] Additionally, Plaintiff quarrels with the College’s deci-
sion not to fire Dalla Pozza. But, even viewing the facts in
Plaintiff’s favor, we cannot conclude that a factual issue
remains with respect to deliberate indifference. An aggrieved
party is not entitled to the precise remedy that he or she would
prefer. Dalla Pozza was punished significantly for his
improper actions. We need not and do not hold that a response
that is inadequate never can amount to deliberate indifference;
we hold only that the College’s response in this case sufficed
to avoid violation of Title IX.
[5] In summary, we hold that the district court properly
granted summary judgment in favor of Defendants on Plain-
tiff’s Title IX claim.
B. Ninth Circuit Jurisdiction Over Cases From the CNMI
Supreme Court
The United States and the Northern Mariana Islands
entered into an agreement establishing a “self-governing com-
2200 ODEN v. NORTHERN MARIANAS COLLEGE
monwealth for the Northern Mariana Islands within the Amer-
ican political system.” 48 U.S.C. § 1801. The Covenant to
Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States (“Covenant”) pro-
vided for a court system in which the Ninth Circuit was to
review appeals from the highest court of the CNMI for a lim-
ited period:
[F]or the first fifteen years following the establish-
ment of an appellate court of the Northern Mariana
Islands the United States court of appeals [for the
Ninth Circuit] shall have jurisdiction of appeals from
all final decisions of the highest court of the North-
ern Mariana Islands from which a decision could be
had in all cases involving the Constitution, treaties,
or laws of the United States . . . .
Id. § 1824; see also id. § 1801 (setting out entire Covenant).
After the 15-year period expired, relations between the
CNMI’s judiciary and the federal judiciary would parallel
relations between a state’s judiciary and the federal judiciary.
Id. § 1824. That is, appeals from the CNMI’s highest court
henceforth would be heard only by the Supreme Court of the
United States. Marianas Political Status Commission, Section
by Section Analysis of the Covenant to Establish a Common-
wealth of the Northern Mariana Islands 37-38 (1975).
[6] The CNMI Supreme Court was established on May 2,
1989, 1 N. Mar. I. Code § 3001, so the Ninth Circuit’s juris-
diction over appeals from that court expired on May 1, 2004.
The question presented here is whether our jurisdiction
extends to all appeals filed before May 1, 2004, or only to
appeals that were completed before May 1, 2004. In light of
our recent decision in Santos, we adopt the latter interpreta-
tion.
In Santos, we considered a similar question regarding our
jurisdiction to hear appeals from the Supreme Court of Guam.
ODEN v. NORTHERN MARIANAS COLLEGE 2201
2006 WL 118375, at *1. As it did with the CNMI, Congress
provided for Ninth Circuit review of appeals from the highest
local court of Guam for a period of 15 years. 48 U.S.C.
§ 1424-2 (2000). Guam’s highest court was created in 1992;
accordingly, the 15-year provision would not have expired
until 2007. H.R. Rep. No. 108-638, at 2 (2004), reprinted in
2005 U.S.C.C.A.N. 2208, 2209. But on October 30, 2004,
Congress amended 48 U.S.C. § 1424-2 by excising the por-
tion of the statute that allowed for Ninth Circuit review of
final appeals from the local Guam appellate courts. Pub. L.
No. 108-378, § 2, 118 Stat. 2206 (2004) (codified at 48
U.S.C. § 1424-2 (Supp. 2005)).
[7] In Santos, we concluded that, because Congress
repealed Guam’s jurisdictional statute without including an
explicit savings clause allowing us to hear pending appeals,
we lacked the power to hear or to decide the case. Santos,
2006 WL 118375, at *2. In Santos, id. at *1, we relied on the
Supreme Court’s admonition in Bruner v. United States, 343
U.S. 112, 116 (1952), that “when the jurisdiction of a cause
depends upon a statute the repeal of the statute takes away the
jurisdiction.” (Internal quotation marks omitted.)
[8] We see no principled distinction between Congress’
repeal of the jurisdiction-providing statute in Santos and the
natural expiration of a jurisdiction-providing statute, such as
the one at issue here. In both cases Congress gave us jurisdic-
tion to hear local appeals for a limited period; in both cases
Congress stripped us of the right to hear those appeals as of
a date certain, without including a savings clause to allow us
to decide pending cases. “Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining
to the court is that of announcing the fact and dismissing the
[case].” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868).
CONCLUSION
In No. 00-16594, the appeal from the district court, we
affirm the summary judgment in favor of the College, its
2202 ODEN v. NORTHERN MARIANAS COLLEGE
Regents, and its President. In No. 03-16802, we dismiss
Plaintiff’s appeal from the CNMI Supreme Court for lack of
jurisdiction.
No. 00-16594 AFFIRMED, No. 03-16802 DISMISSED.