Martinez-Sanes v. Turnbull

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

1-28-2003

Martinez-Sanes v. Turnbull

Precedential or Non-Precedential: Precedential

Docket 99-3644

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PRECEDENTIAL

Filed January 28, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3644

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

No. 99-4084

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

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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)

Appeal No. 99-3644 Argued December 8, 2000

Appeal No. 99-4084 Argued December 7, 2000

Before: MANSMANN* and ALITO, Circuit Judges

and FULLAM,** District Judge

(Filed January 28, 2003)

RONALD W. BELFON, ESQUIRE

(ARGUED)

Belfon & Evert

1217 Bjerge Gade

Charlotte Amalie,

St. Thomas, VI 00802

Attorney for Appellant,

Charles W. Turnbull

JOEL H. FELD, ESQUIRE (ARGUED)

KERRY E. DRUE, ESQUIRE

Office of the Attorney General of the

Virgin Islands

Department of Justice

48B-50C Kronprindsens Gade,

GERS Building, 2nd Floor

Charlotte Amalie,

St. Thomas, VI 00802

Attorneys for Appellant,

Government of the Virgin Islands

_________________________________________________________________

* Honorable Carol Los Mansmann participated in the oral argument and

conference in this case, but died before she could join or concur in this

Opinion.

** Honorable John P. Fullam, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

3

BRUCE P. BENNETT, ESQUIRE

(ARGUED)

Hunter, Colianni, Cole & Bennett

1138 King Street, Suite 301

Christiansted, St. Croix, VI 00820

Attorney for

Vivian Ebbesen-Fludd,

Appellee at No. 99-3644

JAMES M. DERR, ESQUIRE

(ARGUED)

28-29 Norre Gade

P.O. Box 664

St. Thomas, VI 00804

Attorney for Audrey Callwood,

Jeremiah Lee, Patrick Sprauve and

Maxwell George,

Appellees at No. 99-4084

OPINION OF THE COURT

FULLAM, District Judge:

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

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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.

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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, and the "Exempt Service" not so

entitled. But the statute strictly limits the types of

employment which can be exempted from such coverage.

All parties agree that the only permissible exemption for

which these appellees might qualify is that for:

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"An officer or employee in a position of a policy-

determining nature; employee who is a special

assistant, or who is on special assignment to, or whose

position requires a confidential relationship to a policy-

making official when the position is so designated by

the Governor and approved by the Legislature."

3 V.I.C. S451a(b)(8).

There is thus a close (though not necessarily precise)

correlation between the applicable standards for

entitlement to protection under the First and Fourteenth

Amendments: A person who is a policy-maker or in a

confidential relationship to a policy-maker loses First

Amendment protection under the Branti v. Finkel line of

cases, and also may properly be exempted from Civil

Service protection under the Virgin Islands statute, and

thus not have a Fourteenth Amendment "property interest"

in continued employment.

Unfortunately, however, there seems to have been a

routine practice of not adhering strictly to the requirements

of the Virgin Islands merit system regime. Many non-policy

positions were filled without competitive examinations, and

the employees were required to sign acknowledgments that

they would be exempt from Civil Service protection. There

is some suggestion in the record of a general understanding

that merely reviewing resumes and making selections

fulfilled the requirement of competitive examinations, or

that appointment to a position on the basis of political

patronage necessarily warranted exemption from Civil

Service protections, regardless of the nature of the job.

Appellants argued in the District Court that all of the

appellees were bound by the terms of the "Notice of

Personnel Action" ("NOPA") which they signed,

acknowledging that they were in the "exempt" rather than

"classified" service. The district judge rejected that

argument, ruling that the statute took precedence over the

provisions of the NOPA, citing Richardson v. Felix, 856 F.2d

505, 511 (3d Cir. 1988); and that appellees’ signatures on

their NOPAs were coerced and involuntary. As we

understand it, appellants do not now challenge that ruling.

7

Under Third Circuit precedent that we are bound to

follow, whether a person is a "policy-maker" who may be

discharged for political reasons is a factual issue,

reviewable under the "clearly erroneous" standard. Furlong

v. Gudknecht, 808 F.2d 233, 235 (3d Cir. 1986); Rosenthal

v. Rizzo, 555 F.2d 390 (3d Cir. 1977). But see, e.g.,

McGurrin Ehrhard v. Connolly, 867 F.2d 92 (1st Cir. 1989)

(Breyer, J.) )("In light of the important constitutional and

governmental interests surrounding the application of the

[Elrod-Branti] exception, we believe it the kind of legal

question that the court, not the jury, is best suited to

determine."); Rosenthal, 555 F.2d at 396 (Aldisert, J.,

dissenting). Cf. Zold v. Township of Mantua, 935 F.2d 633,

636 (3d Cir. 1991) (court of appeals must give the facts

bearing on the Elrod-Branti issue "special scrutiny"). We

likewise hold that, under 3 V.I.C. S 451a(b)(8), whether an

employee holds a "position of a policy-determining nature"

or a position requiring "a confidential relationship to a

policy-making official" is a factual issue reviewable only for

clear error.

The District Court ruled that none of the four appellees

qualified as policy-makers, hence they were not removable

for political reasons. As to all of the appellants except

Audrey Callwood, the District Court will be affirmed.

Patrick Sprauve was a special assistant in the Department

of Finance, gathering information for audits, compiling an

assessment for the Government Development Bank, and

carrying out assignments from the Commissioner of

Finance. He was then transferred to the Roofing Program,

where he acted as a coordinator between the Roofing

Program and the Department of Finance. The District Court

did not err in concluding that Mr. Sprauve was not within

the confidential or policy-making exception. Indeed, only

the Governor now challenges that ruling.

Appellee Maxwell George was a "Revenue Accounts

Manager" in the Department of Health. He supervised a

department including some 26 employees, and was

responsible for seeing to it that services performed by the

Government in the three American Virgin Islands, St.

Thomas, St. John and St. Croix, were paid for. He had no

input into policy matters but was, in effect, a bill-collector.

8

Here again, only the Governor in his individual capacity

challenges the District Court ruling that Mr. George was

not a policy-maker. The District Court’s ruling was not

clearly erroneous.

As to both Sprauve and George, the finding that they

were not policy-makers establishes not only that their First

Amendment rights were violated when they were discharged

for political reasons, but also that their Fourteenth

Amendment rights were violated when they were fired

without due process in the form of the required notice and

hearing.

The case of appellee Jeremiah Lee stands on a somewhat

different footing. He had not actually begun work in the

position for which he was hired, although, as found by the

District Court, all of the formalities had been completed,

and the failure to allow him to begin work was politically-

motivated. The job in question was that of a "Trades

Inspector" in the Department of Planning and Natural

Resources. No one now contends that this was a policy-

making position, and the finding that he was indeed hired

and, in effect, terminated for political reasons establishes

that his First Amendment rights were violated. But this

does not mean, as the District Court seems to have

assumed, that he had a sufficient property interest in the

job to give rise to Fourteenth Amendment concerns. Only

"regular" employees had Civil Service protection. In order to

be a "regular" employee, satisfactory completion of a

probationary period was required, and Mr. Lee plainly did

not fulfill that requirement. Thus, although his firing for

political reasons violated his First Amendment rights, his

Fourteenth Amendment due process rights were not

violated.

As to appellee Audrey Callwood, however, we conclude

that the District Court erred. Her position was that of

Coordinator of Special Events in the Department of

Tourism. She testified that her primary responsibility was

creating and implementing events for the community that

celebrated cultural and historical holidays. She did this at

the direction of the Commissioner and Assistant

Commissioner of Tourism.

9

In Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), this

Court held that a secretary in the Office of Public

Information of Bucks County was a policy-maker. Although

many of her duties were plainly clerical, the Court also

noted:

"There is no dispute over the fact, however, that Brown

was responsible for writing press releases. The court

below found that the duties of the position also

required her to write speeches, communicate with

legislators and, most important, present the views of

the Commissioners to the press and public on a daily

basis. The court below correctly determined that

Brown’s position is one which cannot be performed

effectively except by someone who shares the political

beliefs of the Commissioners."

787 F.2d at 170.

In Assaf v. Fields, 178 F.3d 170, 178 (3d Cir. 1999) the

Court stated:

"We have held that a "common thread" among cases

identifying a policy-making or confidential position is

"that their positions related to the government’s activity

vis-a-vis the public. That is, these positions entail the

formulation or implementation of policies that have a

direct impact on the public or the representation of

government policies to the public."

Because Ms. Callwood’s position involved constant

interaction with the public on behalf of the Government,

and because of the obvious importance of tourism to the

Government of the Virgin Islands we conclude that, just as

in the Brown case, compatible political affiliation can be a

legitimate job requirement. The District Court’s decision

cannot be squared with these Third Circuit precedents.

To summarize, we uphold the injunctions entered by the

District Court as to Patrick Sprauve and Maxwell George on

both First Amendment and Fourteenth Amendment

grounds, and as to Jeremiah Lee on First Amendment

grounds. As to appellee Audrey Callwood, the judgment

appealed from will be reversed.

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Appeal No. 99-3644 - Vivian Fludd v. Turnbull, et al.

The Government and the Governor in his individual

capacity also appeal from an order of the District Court

granting a permanent injunction in favor of Vivian Fludd,

reinstating her to her position as Executive Director of a

medical clinic at Frederiksted. The District Court ruled that

her position was not one where political affiliation was a

permissible factor in the discharge decision -- i.e., that her

First Amendment rights were violated -- and that, in any

event, the Governor lacked the legal authority to fire her.

Because we agree with the District Court on the first issue,

we need not dwell upon the second.

The evidence as to whether Ms. Fludd occupied a policy-

making position was conflicting, and we cannot say that

the district judge’s credibility choices were clearly

erroneous. Morever, the district judge was justified in

considering the non-political nature of the activities carried

out by medical clinics. See Furlong v. Gudknecht , supra.

(Deputy Recorder of Deeds functions are non-political).

We note also a further factor which the District Court

mentioned. As a condition of obtaining federal funding, the

Virgin Islands Government was required to arrange matters

so that the clinic would no longer be directly supervised by

the Virgin Islands Commissioner of Health, but rather

would be controlled by a governing board of appointed

officials serving fixed terms. The relationship between the

governing board and the Virgin Islands government was set

forth in a "memorandum of understanding" executed in

1997, which among other things, gave the board an

advisory role in hiring and firing executive directors,

interviewing applicants for the position, etc. Even if the

district judge was incorrect in ruling that this change of

format deprived the Governor of legal authority to discharge

Ms. Fludd (an issue we find unnecessary to decide), it

would indeed be ironic to hold that political affiliation was

a legitimate job qualification, when the requirement of an

independent board seems clearly to have been designed to

remove the clinic staff from the political arena. We

conclude, therefore, that the injunction was properly

entered, because Ms. Fludd’s First Amendment rights were

violated.

11

Unlike the other appellees, Ms. Fludd has not asserted a

Fourteenth Amendment due process violation.

Qualified Immunity of the Governor

The District Court granted injunctive relief only, and

reserved for later disposition all damages issues. As to all of

the appellees except Vivian Fludd, however, the District

Court expressly ruled that the Governor was not entitled to

qualified immunity. It is not entirely clear whether the

District Court intended the same ruling to apply in the case

of Ms. Fludd, but since the issue has been squarely

presented to us and briefed by both sides, our decision will

extend to the appeal affecting Ms. Fludd as well.

The issue is whether the appellees’ firings violated a

constitutional right which was clearly established at the

time, such that an objectively reasonable decision-maker

should have been aware of the likelihood that firing

appellees violated their constitutional rights. The landmark

decisions of the United States Supreme Court in Elrod v.

Burns, 427 U.S. 347 (1976) and Branti v. Finkle, 445 U.S.

507 (1980) firmly established the constitutional right of

every person not to be fired for political reasons unless

political affiliation had a bearing on job performance - i.e.,

unless the person involved was a policy-maker. And the

plethora of appellate court decisions, in this circuit and

elsewhere, which have been rendered since Elrod and

Branti have provided numerous examples of what is and

what is not a policy-making position. Reasonable officials

may be on notice of the probable unlawfulness of their

conduct, even if there is not a "previous precedent directly

on point." Acierno v. Cloutier, 40 F.3d 597, 620 (3d Cir.

1994). As the Supreme Court stated in Anderson v.

Creighton, 483 U.S. 635 (1982), the "clearly established"

standard does not require that "the very action in question

has previously been held unlawful." See also Pro v.

Donatucci, 81 F.3d 1283 (3d Cir. 1996); Assaf v. Fields, 178

F.3d 170 (3d Cir. 1999).

We assume, as appellant’s counsel asserts, that the

Governor did not intend to violate anyone’s constitutional

rights, and that he entertained a genuine belief that his

12

actions were not unlawful. But the issue is not his

subjective intent, but whether it was objectively reasonable

for him to discharge the appellees. In light of the

precedents cited above, particularly the Pro v. Donatucci

and Assaf v. Fields decisions, we conclude that the District

Court was correct in denying qualified immunity.

CONCLUSION

As to appellee Audrey Callwood, the order appealed from

will be reversed. As to the appellees Patrick Sprauve,

Maxwell George and Vivian Fludd, the orders appealed from

will be affirmed. As to appellee Jeremiah Lee, the injunctive

order appealed will be affirmed, as to the First Amendment

ground only. To the extent that the District Court denied

the Governor’s assertion of qualified immunity, the orders

appealed from will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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