                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2003

Lockhart v. Matthew
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2914




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Recommended Citation
"Lockhart v. Matthew" (2003). 2003 Decisions. Paper 33.
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                                                  NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT




                         No. 02-2914




                 ALSON LOCKHART, SR.,

                                    Appellant,

                              v.

   MAVIS L. MATTHEW, M.D.; HERBERT SANDERS, M.D.;
        GOVERNMENT OF THE VIRGIN ISLANDS


                        ___________


        ON APPEAL FROM THE DISTRICT COURT
              OF THE VIRGIN ISLANDS

                  (D.C. Civil No. 00-cv-00129)
       District Judge: The Honorable Stanley S. Brotman

                        ___________

          Submitted Under Third Circuit LAR 34.1(a)
                     December 8, 2003


BEFORE: NYGAARD, BECKER, and STAPLETON, Circuit Judges.

                 (Filed: December 23, 2003)
                                       ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

              Pro Se Appellant Alson Lockhart, Sr. brought suit against Appellees Mavis

L. Matthew, Herbert Sanders, and the Government of the Virgin Islands (collectively “the

Government”) when his application for renewal of his emergency medical technician

(“EMT”) license was denied. The District Court held a bench trial and entered a

judgment in favor of the Government. Lockhart appeals and we will affirm.

                                              I.

              Because the facts are known to the parties, we review them only briefly. In

the Virgin Islands, EMTs are licensed by the territorial government. EMT licenses are

valid only for two years and must be renewed for each period thereafter. To obtain an

EMT license, an applicant must: (1) nationally register; (2) complete a four-year high

school course of study or the equivalent; (3) be able to lift and carry 100 pounds (the “lift

and carry requirement”); (4) have a valid Virgin Islands driver’s license; (5) successfully

complete the Emergency Defensive and Evasive Driving course; and (6) verify good

character and good physical and mental health. V.I. Exec. Order No. 233-1979, § 2(a)(1)-

(6) (Filed June 25, 1979). The requirement at issue in this case is Lockhart’s ability to lift

and carry 100 pounds. The Government does not require applicants to undergo a physical



                                              2
test, but relies on the applicant’s designation in a “yes” or “no” box as to whether he can

meet the lift and carry requirement.

              Lockhart was first licensed as an EMT in 1980 and renewed his license

every two years thereafter. In 1992, Lockhart suffered a back injury and was off the job

for four months. He reinjured his back in 1998, went on disability for two months, and

upon returning to duty served a temporary assignment as a dispatcher because he was

unable to meet the physical demands of an EMT. From 1999 to 2000, Lockhart acted as a

“third-party” on EMT dispatches, meaning he was an extra person not relied upon to do

lifting and carrying.

              When Lockhart sought renewal of his EMT license in March 2000, he filled

out the application form and on the lift and carry question checked that “yes,” he could

meet the requirement, but noted a cross-reference to disability information from his

doctor. The doctor’s note that was appended to Lockhart’s application recommended

“light duty” and indicated that Lockhart should do no lifting over ninety pounds.

              Based on the contradictory information in Lockhart’s

application—Lockhart said he could meet the lift and carry requirement but his doctor

indicated Lockhart could lift only ninety pounds, less than the 100-pound threshold—the

Government could not rely solely on Lockhart’s checking the “yes” box. The Director of

Emergency Services consulted Lockhart’s personnel file and discovered that Lockhart

had been limited in his lifting and carrying activities since 1999. The Government



                                             3
interpreted the aggregated information to show that Lockhart could not meet the lift and

carry requirement and therefore denied his application for EMT license renewal. The

Government then granted Lockhart three extensions of time to show he could meet the lift

and carry requirement, but Lockhart failed to provide such information until after the

third extension had expired.

              Lockhart filed suit against the Government, making claims under 42 U.S.C.

§ 1983 and 48 U.S.C. § 1561. The District Court denied pretrial motions from both

parties that would have prevented trial. The case proceeded to trial without a jury, and on

May 30, 2002, the District Court issued a judgment in favor of the Government. We have

jurisdiction over Lockhart’s appeal under 28 U.S.C. § 1291.

                                            II.

                                            A.

              Findings of fact made by a District Court during a bench trial shall be set

aside by this Court only if clearly erroneous. Fed. R. Civ. P. 52(a); see also Newark

Branch, NAACP v. City of Bayonne, 134 F.3d 113, 119-20 (3d Cir. 1998). We exercise

plenary review over questions of law. See Riley v. Taylor, 277 F.3d 261, 278 (3d Cir.

2001) (en banc).

                                            B.

              Lockhart challenges the District Court’s judgment on various grounds, most

of which warrant little discussion here. Contrary to Lockhart’s assertions, Executive



                                             4
Order 233-1979 is legally valid and unambiguous as to the need for all applicants, both

new and renewal, to meet the lift and carry requirement. The District Court found that the

Government reasonably concluded Lockhart could not satisfy the requirement. We agree.

              In support of his equal protection claim, Lockhart points to other EMTs

licensed by the territory who suffer from back problems. Lockhart alleges he is similarly

situated to these individuals whose injuries were accommodated. As the District Court

noted, Lockhart fails to appreciate that he is not similarly situated because he failed to

provide any information to rebut his doctor’s indication that he could not carry over

ninety pounds. The Government provided Lockhart ample time—three extensions—to do

so, yet the information was delayed for more than three months.

              Lockhart’s due process claim consists of assertions that, as an EMT with

nineteen years experience, he was a tenured public employee with a property interest in

his license. Unlike cases where this Court has been willing to recognize a property

interest in a license, Lockhart’s EMT license expired every two years. Cf. Herz v.

Degnan, 648 F.2d 201, 208 (3d Cir. 1981) (holding that a person had a property interest

in a professional license that was automatically renewed). Natural expiration of the

license negates any claim that it is a property interest protected by the due process clause.

              Finally, Lockhart claims that the District Court erred by evaluating the

propriety of the Department of Health’s license renewal decision, as opposed to the as yet

unrendered Public Employees Relations Board (“PERB”) decision. We are unpersuaded.



                                              5
Lockhart controlled the timing of his suit and clearly cannot complain about the District

Court’s failure to review an administrative decision that has not yet been made.

                                           III.

              For the reasons set forth, we will affirm the District Court’s judgment in

favor of the Government.




                                             6
_________________________


TO THE CLERK:

           Please file the foregoing opinion.




                                            /s/ Richard L. Nygaard
                                          Circuit Judge
