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Manning v. Bouton

decided: May 17, 1982.

DUNCAN M. MANNING, APPELLANT
v.
DONALD BOUTON, ACTING ATTORNEY GENERAL OF THE VIRGIN ISLANDS, AND GOVERNMENT OF THE VIRGIN ISLANDS, APPELLEES



ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN

Before Garth, Circuit Judge, Rosenn, Senior Circuit Judge, and Higginbotham, Circuit Judge.

Author: Garth

Opinion OF THE COURT

Duncan M. Manning appeals the entry of summary judgment against him in his action to enjoin the Acting Attorney General of the Virgin Islands from terminating his employment as an Assistant Attorney General. The district court*fn1 held that Manning should have pursued his claim of wrongful discharge under the grievance procedures contained in the collective bargaining agreement between the Virgin Islands Department of Law and the union representing the Department's Assistant Attorneys General. We agree and thus affirm.

I.

The essential facts of this case are not in dispute. Manning, an attorney who had practiced law for many years in New York, was hired as an Assistant Attorney General for the Government of the Virgin Islands effective August 6, 1980. The then Attorney General who hired Manning agreed orally to allow Manning to continue his private practice in New York to permit the orderly "winding down" of that practice, even though V.I.Code Ann. tit. 3, § 117 (Supp.1981) provided that "Assistant Attorneys General ... shall not engage in the private practice of law, nor be associated directly or indirectly with any attorney in private practice."

On November 7, 1980, the Department of Law and the United Industrial Workers of North America entered into a collective bargaining agreement governing the terms and conditions of employment of "(a)ll Assistant Attorneys General and all other attorneys employed by and performing legal services for the Executive Branch of the Government of the Virgin Islands." Agreement art. I, § 1. On December 9, 1980, the Governor of the Virgin Islands signed into law Act No. 4506, which funded the collective bargaining agreement and provided that

notwithstanding any provision of law to the contrary, the conditions of employment of all Assistant Attorneys General and all other attorneys employed by and performing legal services for the Executive Branch of the Government of the Virgin Islands, shall be governed through September 30, 1982, by the terms of the (collective bargaining) agreement....

V.I. Act No. 4506a, § 1, 1980 V.I. Acts 242. Article X of the collective bargaining agreement established a grievance procedure, culminating in binding arbitration, which was to be "the exclusive means of settlement of all grievances arising under this Agreement." Agreement art. X, § 20.

On December 30, 1980, the Attorney General who hired Manning resigned, and Donald M. Bouton was named Acting Attorney General. By letter dated February 20, 1981 and addressed to Manning in New York, Bouton dismissed Manning from his position as an Assistant Attorney General, stating:

It has come to my attention that you have been continuously engaged in the private practice of law, in violation of the provisions of Section 117, Title 3 of the Virgin Islands Code, over the past six months while being employed on the staff of the Department of Law as an Assistant Attorney General.

In addition to the foregoing, you have not been rendering satisfactory legal services to the Government of the Virgin Islands, either with regard to quality or quantity.

I am therefore terminating your probationary appointment ...


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