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Martinez-Mcbean v. Government of Virgin Islands

filed: August 31, 1977.

LUIS MARTINEZ-MCBEAN, APPELLANT IN NO. 77-1231,
v.
GOVERNMENT OF THE VIRGIN ISLANDS, APPELLANT IN NO. 76-2441



Appeal from the United States District Court for the District Court for the Virgin Islands, Division of St. Croix (D.C. Civil No. 73-552).

Van Dusen, Weis and Garth, Circuit Judges.

Author: Garth

GARTH, Circuit Judge.

This appeal and cross-appeal grew out of a civil action in which Luis Martinez-McBean (McBean), a schoolteacher discharged by the Commissioner of Education of the Virgin Islands, challenged the legality of his dismissal. The district court originally dismissed McBean's action on January 30, 1974. Two and one-half years later, the court, acting on its own motion, reexamined its ruling, concluded that it had committed an error of law, and pursuant to Fed. R. Civ. Proc. 60(b)(6), granted relief from its previous order of dismissal. While refusing to reinstate McBean, the district court subsequently entered judgment in favor of McBean for back pay and interest. Both the Government of the Virgin Islands (No. 76-2441) and McBean (No. 77-1231) appealed. We reverse and reinstate the district court's order of January 30, 1974, which dismissed McBean's action.

I.

The facts which gave rise to this litigation may be summarized briefly. On October 27, 1972, McBean led his fifth grade class from the school premises. He then began to pound on the doors of neighboring houses, to shout obscenities at the occupants, and to instruct his pupils "to take a good look at these 'enemies' and 'spies'." Memo. Op. of June 24, 1976, at 3. When school officials later asked McBean why he had engaged in this conduct, he explained that "the F.B.I., the C.I.A., and the local police has been engaging in a systematic process of trying to spy upon him, following him everywhere, and attempting to control his thoughts and behavior by placing him under 'electronic hypnosis.'" Id. at 3-4.

On October 31, 1972, the Commissioner of Education of the Virgin Islands suspended McBean pending further investigation. After the Commissioner's attempts to convince McBean to seek psychiatric help had failed, the Commissioner sent McBean a letter on November 30, 1972, informing him that he was being dismissed for "conduct unbecoming a teacher." The letter also informed McBean that he had a right to appeal that decision to the Government Employees' Service Commission (GESC). McBean filed an appeal with the GESC, and he was notified that his appeal would be heard on December 7, 1972. For some reason, that appeal was not heard until April 5, 1973.

At the hearing before the GESC, McBean was represented by an attorney hired by the American Federation of Teachers, of which McBean was a member. McBean's attorney stipulated that the Commissioner had good cause to dismiss his client. The attorney informed the GESC that McBean's appeal involved only one issue: whether or not the Commissioner in dismissing McBean had complied with the procedures required by 3 V.I.C. § 530 and 17 V.I.C. § 127. The latter statute, among other provisions, directs that dismissal of Board of Education professional employees shall be governed by the provisions of 3 V.I.C. §§ 530-532. McBean's attorney framed the issue as follows:

whether or not the Commissioner dismissed Mr. McBean without first submitting a recommendation of dismissal to the Government Employees' Service Commission that reflected the concurrence of the Virgin Islands Board of Education in such action, and, in addition thereto, whether or not the Commissioner obtained the approval of the Governor of the Virgin Islands prior to the dismissal.

Memo. Op. of June 24, 1976, at 7.

On October 30, 1973, McBean, acting pro se, filed a petition in United States District Court seeking a Writ of Review of the GESC's decision pursuant to 5 V.I.C. § 1421 et seq. On January 30, 1974, the district court dismissed this petition for failure to comply with Rule 11(a) of the Rules of the District Court of the Virgin Islands. That rule provides in part that such petitions "shall be filed within 30 days after the date of the decision or determination complained of . . . ." McBean's petition was not filed until almost three months after the GESC's decision.

McBean did not take an appeal from the district court's order, but he did initiate a host of other pro se actions in the district court. One of McBean's suits concerned his apprehension and confinement by the government prior to civil commitment proceedings held in 1972. Alleging that the government had acted illegally, McBean sought "forty-two million dollars ($42,000,000.00) tax free." McBean also sued the United States for $84,000,000.00 based upon "the F.B.I.'s and C.I.A.'s joint efforts in twice causing him to be confined illegally," and in "hypnotizing" him by means of "electronic devices". Finally, he sued the American Federation of Teachers and the AFL-CIO for $24,000,000 based upon the alleged "misrepresentation" of the attorney hired by the union to represent him before the GESC. (This latter action is also before us on appeal [No. 76-2552] from an order of the district court granting summary judgment in favor of the defendants.) Simultaneously with the filing of this opinion (which disposes of No. 76-2441 and 77-1231), we have entered a judgment order in No. 76-2552, which affirms the order of district court granting summary judgment for the defendants.

While preparing its opinion in McBean's suit against the unions (those cases are not before us here), the district court had occasion to consider in detail the requirements of 3 V.I.C. § 530, the statute which prescribes the procedure for the dismissal of employees of the Virgin Islands. The court determined that the GESC had not complied with certain procedures required by 3 V.I.C. § 530 in considering McBean's case, and it concluded that McBean should be granted relief from the order of January 30, 1974, which dismissed his petition for Writ of Review of the GESC's ruling.

When McBean appealed to the GESC in the fall of 1972, 3 V.I.C. § 530 did not include specific time limits governing the GESC's actions. However, on March 14, 1973, (that is, after McBean had filed his appeal with the GESC but prior to the hearing on that appeal), 3 V.I.C. § 530(b) was amended to require the GESC to render a decision in each appeal "within 14 days after termination of the hearing." The amendment also stated: "In the event the Commission fails to . . . . render its decision within the time . . . . prescribed herein, the employee shall be reinstated, with full pay, to the date of his original dismissal or suspension." The district court concluded that this amendment applied to McBean's case. Since the GESC's decision in that case was not announced until almost 4 months after the end of the hearing, the district court held that McBean was entitled to reinstatement with back pay for the period beginning on October 31, 1972 (the date of his ...


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