                     FOR PUBLICATION

       UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 EMERENCIANA PETER-PALICAN,                        No. 13-17099
               Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           1:07-cv-00022

 GOVERNMENT OF THE
 COMMONWEALTH OF THE NORTHERN                         OPINION
 MARIANA ISLANDS; ELOY S. INOS,
 Governor of the Commonwealth of
 the Northern Mariana Islands, in his
 official capacity,*
                 Defendants-Appellees.


       Appeal from the United States District Court
      for the District of the Northern Mariana Islands
   John C. Coughenour, Senior District Judge, Presiding

                    Submitted July 23, 2014**
                    San Francisco, California

                    Filed September 17, 2014



   *
    Governor Eloy S. Inos is substituted for his predecessor, Governor
Benigno R. Fitial, pursuant to Fed. R. App. P. 43(c)(2).
  **
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                    PETER-PALICAN V. CNMI

        Before: Alfred T. Goodwin, Stephen S. Trott,
           and Mary H. Murguia, Circuit Judges.

                        Per Curiam Opinion


                           SUMMARY***


                             Civil Rights

    Following a prior remand in Peter-Palican v. Gov’t of N.
Mariana Islands, 695 F.3d 918, 920 (9th Cir. 2012), the panel
affirmed the district court’s summary judgment in favor of
the Commonwealth of the Northern Mariana Islands and
Governor Eloy S. Inos in Emerenciana Peter-Palican’s action
arising from her termination from her position as Special
Assistant to the Governor for Women’s Affairs.

    The panel held that the district court properly granted
summary judgment on Peter-Palican’s retaliation claim
because she failed to raise a triable dispute as to whether she
did not hold a “policymaking or confidential” position. The
district court properly granted summary judgment on the
breach of contract claim because it was undisputed that Peter-
Palican held her position by virtue of appointment rather than
by contract.

   The panel held that the district court properly granted
summary judgment on Peter-Palican’s estoppel claim, first,
because she failed to raise a triable dispute as to whether

  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 PETER-PALICAN V. CNMI                      3

government officials engaged in any affirmative misconduct
going beyond mere negligence, as required for equitable
estoppel. Second, Peter-Palican failed to raise a triable
dispute as to whether the Commonwealth gained an
advantage by asserting one position, and then later sought an
advantage by taking a clearly inconsistent position, as
required for judicial estoppel.

   The panel denied the Commonwealth’s request for
sanctions against Peter-Palican and her attorney.


                        COUNSEL

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

PER CURIAM:

    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
4                PETER-PALICAN V. CNMI

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 Peter-
Palican’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.”).
                 PETER-PALICAN V. CNMI                     5

    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 Peter-
Palican and her attorney, raised in its answering brief, is
denied.

   AFFIRMED.
