                                                         NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                 No. 17-2776
                                _____________

                           GERSHWAIN SPRAUVE,
                                      Appellant

                                       v.

THE WEST INDIAN COMPANY LIMITED; JOSEPH BOSCHULTE, in his Personal
 Capacity and as President and Chief Executive Officer of the West Indian Company
Limited; BOARD OF DIRECTORS OF THE WEST INDIAN COMPANY LIMITED
                                  _____________

                                 No. 17-2777
                                _____________

                             ANDREA V. SMITH,
                                       Appellant

                                       v.

THE WEST INDIAN COMPANY LIMITED; JOSEPH BOSCHULTE, in his Personal
 Capacity and as President and Chief Executive Officer of the West Indian Company
Limited; BOARD OF DIRECTORS OF THE WEST INDIAN COMPANY LIMITED
                                  _____________

                       On Appeal from the District Court
                               of the Virgin Islands
                   (Nos. 3:13-cv-00008 & No. 3:13-cv-00030)
                    District Judge: Hon. Susan D. Wigenton
                                ______________

                          Argued: December 13, 2018

       Before: CHAGARES, HARDIMAN, and RESTREPO, Circuit Judges.

                            (Filed: January 17, 2019)
Karin A. Bentz      [ARGUED]
The Law Offices of Karin A. Bentz
5332 Raadets Gade, Suite 3
St. Thomas, VI 00801
       Counsel for Appellants

Adriane J. Dudley
Carol A. Rich       [ARGUED]
Dudley Rich
5194 Dronningens Gade, Suite 3
St. Thomas, VI 00802
       Counsel for Appellees


                                   __________________

                                        OPINION*
                                   __________________

CHAGARES, Circuit Judge.

          Gershwain Sprauve and Andrea Smith appeal the District Court’s grant of

summary judgment in favor of West Indian Company Limited (“WICO”) and Joseph

Boschulte. Sprauve and Smith argue that the District Court erred in concluding that they

failed to establish a procedural due process claim. For the following reasons, we will

affirm.

                                             I.

          WICO was founded in 1912, starting as a coal bunkering business and eventually

developing into the “Port Agent” of the port of Charlotte Amalie in St. Thomas. Sprauve




          *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.


                                             2
v. W. Indian Co., 799 F.3d 226, 227 (3d Cir. 2015). In 1993, it was purchased by the

Government of the Virgin Islands, becoming “a public corporation and governmental

instrumentality.” Id.

       Gershwain Sprauve began working at WICO in 1997 as Manager of Mall

Operations. In 2010 and again in 2011, he applied to become WICO’s President and

CEO. WICO’s Board, however, awarded the position to Joseph Boschulte, and the

relationship between Sprauve and Boschulte quickly soured. Boschulte accused Sprauve

of insubordination, prompting Sprauve to complain about him to the Board. Ultimately,

in August 2012, Boschulte fired Sprauve for failing to attend a legislative hearing –– a

hearing Sprauve claims he was neither directed nor asked to attend.

       Andrea Smith began working at WICO in 1981 as a bookkeeper. Over time, she

worked her way up the ladder, eventually becoming WICO’s Chief Financial Officer.

She also served as WICO’s Acting President and CEO for nearly a year until Boschulte

was hired. Smith alleges that Boschulte became upset with her after she denied his

request for reimbursement of certain expenses. According to Smith, Boschulte was not

entitled to reimbursement because he was not a WICO employee. Smith alleges that

Boschulte became angry with her again when he discovered that the Board had

interviewed her while investigating Sprauve’s complaint. In January 2013, Boschulte

fired Smith for “failure to execute.” Joint Appendix (“JA”) 750.




                                             3
       Sprauve and Smith each sued Boschulte and WICO, alleging a host of claims

under both federal and Virgin Islands law.1 Most relevant to this appeal, they both

alleged that their terminations violated their respective Fourteenth Amendment rights to

due process. The District Court granted summary judgment in both cases in favor of the

defendants on all the federal claims.2 Regarding Sprauve’s and Smith’s due process

claims in particular, the District Court found that they had “no property right in [their]

continued employment and, consequently, no claim under the Fourteenth Amendment.”

JA 75; see also JA 36.

       Sprauve and Smith timely appealed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3), and

we have appellate jurisdiction under 28 U.S.C. § 1291. Our review of a grant of

summary judgment is de novo. Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir.

2014). Summary judgment is appropriate when, viewing the evidence in the light most

favorable to the non-movant, “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting

Fed. R. Civ. P. 56(a)).



       1
         The District Court initially dismissed the suits, holding that the federal claims,
premised on constitutional violations, failed because WICO and Boschulte were not state
actors. Sprauve, 799 F.3d at 228–29. But we reversed, holding that “WICO must be
considered a government entity for the purposes of Sprauve’s and Smith’s constitutional
claims.” Id. at 227.
       2
         In both cases, the District Court declined to exercise supplemental jurisdiction
over the claims arising under Virgin Islands law.

                                              4
                                            III.

       To establish a procedural due process claim under the Fourteenth Amendment, a

plaintiff must show a deprivation of a constitutionally protected “property” interest. Iles

v. de Jongh, 638 F.3d 169, 173 (3d Cir. 2011). Public employees who can be fired only

“for cause” have such a protected property interest in their continued employment.

Gilbert v. Homar, 520 U.S. 924, 928–29 (1997). Sprauve and Smith argue that they had

such protection because they were “regular employees,” a category of public employees

in the Virgin Islands who cannot be fired without cause. See V.I. Code tit. 3,

§ 530(a)(2)(C)(ii).3

       Sprauve’s and Smith’s argument assumes that WICO employees, like themselves,

are public employees within the executive branch of the Virgin Islands Government. But

we do not decide that issue here because, regardless, Sprauve and Smith have produced

no evidence that they were “regular employees” under § 530.

       A “regular employee” is one who has either “been appointed to a position in the

classified or career service or served in a temporary position for more than two years in a

department or agency of the executive branch or in an instrumentality.” V.I. Code tit. 3,

§ 530(a)(2)(C)(i). Sprauve and Smith have not proven either. First, they have not



       3
        WICO and Boschulte contend that we should not consider this argument because
Sprauve and Smith failed to raise it below. It is true, generally, “that a federal appellate
court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S.
106, 120 (1976). Here, though Sprauve and Smith did not raise their “regular
employees” argument below, the District Court still discussed it. Because the argument
was thus “passed upon below,” id. at 120, we will consider it.


                                             5
demonstrated that they were “appointed to a position in the classified or career service.”

Id. (emphasis added). Under Title 3, Chapter 25 of the Virgin Islands Code, appointment

is a particular process. A “department head” looking to fill a position must “submit to the

Director of Personnel a statement showing the position to be filled and the duties of the

position.” Id. § 526(a). The Director of Personnel then certifies a list of “no fewer than

three eligibles for such position,” from which the “appointing authority, after consultation

with the department head[,] shall appoint one of those whose names are certified.” Id.

There is no evidence in the record that Sprauve or Smith obtained their jobs in this

manner.4

       Second, Sprauve and Smith have not shown that they “served in a temporary

position for more than two years in a department or agency of the executive branch or in

an instrumentality.” Id. § 530(a)(2)(C)(i). Even if we assume, without deciding, that

WICO counts as “a department or agency of the executive branch” or an

“instrumentality,” Sprauve and Smith have neither argued nor shown that any of the

positions they held over their many years of service were temporary. Perhaps the only

role that either of them occupied that could be construed as “temporary” was Smith’s

position as Interim President and CEO –– and Smith had that role for less than a year.



       4
        Sprauve and Smith insist that they were appointed to their positions because
WICO had competitive hiring procedures. But WICO’s use of a competitive hiring
process does not mean that its employees were “appointed.” As explained above,
appointment involves filling a position based on a certified list provided by the Director
of Personnel. See V.I. Code tit. 3, § 526. Exceptions to the appointments process exist,
but Sprauve and Smith do not claim any apply here. See, e.g., id. § 529 (emergency
appointments).

                                             6
       Accordingly, Sprauve and Smith have not established that they are entitled to for-

cause protection. As they do not offer any other basis for reversal, we hold that the

District Court properly granted summary judgment on their due process claims.5

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment.




       5
         Our decision in Sprauve is not to the contrary. We held there “that WICO must
be considered a government entity for the purposes of Sprauve’s and Smith’s
constitutional claims.” 799 F.3d at 227. That does not mean that WICO’s employees are
“regular employees” under § 530. Indeed, we emphasized that we were “only examining
whether WICO is a government entity for the purpose of determining whether
constitutional claims can be lodged directly against it.” Id. at 230 n.3.

                                             7
