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Martinez-Sanes v. Turnbull

January 28, 2003

CRUZ MARTINEZ-SANES; VERNITA CHARLES; VIVIAN FURET; MAUDE AKINS; FAUSTINA RICHARDSON; ROSALIA SACKEY; LENORE SAFE; EILEEN JACKSON; PATRICK SPRAUVE
v.
GOV. CHARLES W. TURNBULL, PH.D.; GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS (D.C. CIVIL NO. 99-CV-00031)
MIRIAM DEJESUS; CECILE PHILLIP-THOMAS; HERBERT L. SCHOENBOHM; MARGARET SUMTER
v.
GOV. CHARLES W. TURNBULL, PH.D.; GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS (D.C. CIVIL NO. 99-CV-00045)
LAURA HASSELL; MARILYN STAPLETON; RIISE RICHARDS; ALICIA TORRES-GUSTAVE; AUDREY CALLWOOD; EDGAR PHILLIPS; DWAYNE BENJAMIN; DARYL LEWIS; BIANCA O. MAYNARD; ANA BERTRAND; JEREMIAH LEE; JOSEPH FARRINGTON; FRANCISCO JARVIS; FRANKLIN LAWRENCE; EVERARD POTTER; MAXWELL GEORGE
v.
GOV. CHARLES W. TURNBULL, PH.D.; GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS (D.C. CIVIL NO. 99-CV-00053)
VIVIAN EBBESEN-FLUDD
v.
CHARLES TURNBULL, PH.D. INDIVIDUALLY AND IN HIS CAPACITY AS GOVERNOR OF THE VIRGIN ISLANDS; GOVERNMENT OF THE UNITED STATES
VIRGIN ISLANDS AND DOES 1 THROUGH 10 (D.C. CIVIL NO. 99-CV-00056) GOVERNMENT OF THE VIRGIN ISLANDS AND CHARLES W. TURNBULL, INDIVIDUALLY, APPELLANTS
LAURA HASSELL; MARILYN STAPLETON; RIISE RICHARDS; ALICIA TORRES-GUSTAVE; AUDREY CALLWOOD; EDGAR PHILLIPS; DWAYNE BENJAMIN; DARYL LEWIS; BIANCA O. MAYNARD; ANA BERTRAND; JEREMIAH LEE; JOSEPH FARRINGTON; FRANCISCO JARVIS; FRANKLIN LAWRENCE; EILEEN JACKSON; PATRICK SPRAUVE; MAXWELL GEORGE
v.
GOV. CHARLES W. TURNBULL, PH.D.; GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS;
DOES 1 THROUGH 10, INDIVIDUALLY AND IN THEIR CAPACITIES AS EMPLOYEES OF THE GOVERNMENT OF THE VIRGIN ISLANDS GOVERNOR CHARLES W. TURNBULL, PH.D., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AND GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS, APPELLANTS



On Appeal from the District Court of the Virgin Islands Divisions of St. Croix, St. Thomas and St. John D.C. Civil Action Nos. 99-cv-00031, 99-cv-00045, 99-cv-00053, 99-cv-00056 (Honorable Raymond L. Finch)

Before: Mansmann *fn1 and Alito, Circuit Judges and FULLAM,*fn2 District Judge

The opinion of the court was delivered by: Fullam, District Judge

PRECEDENTIAL

Appeal No. 99-3644 Argued December 8, 2000

Appeal No. 99-4084 Argued December 7, 2000

OPINION OF THE COURT

In the 1998 gubernatorial election in the United States Virgin Islands, the then incumbent Governor Roy Lester Schneider was defeated by his Democratic challenger, Charles W. Turnbull. Shortly after the change of administrations, a substantial number of employees of the Virgin Islands Government lost their jobs.

In three separate lawsuits, 27 of these former employees challenged their dismissals, alleging that they were fired because of their political beliefs and activities on behalf of Governor Schneider, in violation of their rights under the First Amendment of the United States Constitution, and also that their due process rights under the Fourteenth Amendment had been violated, inasmuch as they were not accorded notice or a hearing. The three lawsuits were consolidated, at least for pretrial purposes. The claims of 22 of the 27 original plaintiffs were finally resolved at the District Court level, either because of amicable settlements, or because the losing party did not appeal. The remaining five cases are now pending in this court as the result of appeals by the defendants from injunctive orders entered by the District Court, upholding the claims of the discharged employees, and ordering their reinstatement. Four of these cases are involved in appeal No. 99-4084; a fifth case is the subject of appeal No. 99-3644. Both appeals will be disposed of in this Opinion.

The appellants are the Government of the Virgin Islands and Governor Turnbull in his official capacity, represented by the same counsel, and Governor Turnbull in his individual capacity, who has separate representation. Throughout this opinion, we will use the term "the Government" to refer both to the defendant Government of the Virgin Islands and to Governor Turnbull in his official capacity, and "Governor Turnbull" to refer to the Governor in his individual capacity.

The four appellees in No. 99-4084, and the positions from which they were fired and to which they have been reinstated, are: Audrey Callwood, Coordinator of Special Events in Tourism; Patrick Sprauve, Special Projects Coordinator in the Department of Finance, on temporary assignment to the Governor's Home Protection Roofing Program; Maxwell George, Revenue Accounts Manager in the Department of Health; and Jeremiah Lee, Trades Inspector in the Department of Planning and Natural Resources. All were supporters of former Governor Schneider, and had been actively involved in his unsuccessful campaign for re-election. They were fired shortly after Governor Turnbull's inauguration, without explanation. The Governor publicly acknowledged, at the time, that at least some of the personnel changes were politically motivated. The explanations since advanced for these personnel decisions -- budgetary constraints, reducing the size of the government, etc. -- are implausible, given the undisputed facts that total expenditures increased, and included many new hires at increased compensation. The trial judge understandably found as a fact that all of the appellees were discharged for political reasons. These findings are not clearly erroneous, and will not be disturbed.

The issues which do require discussion are whether the District Court correctly concluded that the appellees' First Amendment rights were superior to Governor Turnbull's right to require that the policy-makers and confidential advisors in his administration share his political views and philosophy, under Branti v. Finkel, 445 U.S. 507 (1980), Elrod v. Burns, 427 U.S. 347 (1976) and their progeny; and whether all of the appellees had a sufficient property interest in continued employment to give rise to a due process right to notice and hearing, under the Fourteenth Amendment. As to both the First Amendment and the Fourteenth Amendment claims, analysis properly begins with consideration of applicable Virgin Islands statutes governing personnel matters.

Under the Virgin Islands statutory scheme, the Governor is vested with the ultimate authority to hire and fire all government employees. Section 11 of the Revised Organic Act of 1954 provides:

"The Governor shall have general supervision and control of all the departments, bureaus, agencies and other instrumentalities of the executive branch of the government of the Virgin Islands . . . he shall appoint, and may remove, all officers and employees of the executive branch of the government of the Virgin Islands, except as otherwise provided in this or any other act of Congress, or under the laws of the Virgin Islands . . ."

This general authority is constrained by the provisions of the Virgin Islands Personnel Merit System, 3 V.I.C.SS 451-690 (1995 and Supplement 2000), which contemplates that all government employees will be selected on the basis of merit, and may not be removed except after written notice of charges and an opportunity for a hearing, unless specifically exempted from these statutory protections. Thus, employees of the Virgin Islands Government are divided into two categories, the "Classified Service" entitled to Civil Service protection, ...


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