                                                                                                                           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Precedential or Non-Precedential: Precedential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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Recommended Citation
"Martinez-Sanes v. Turnbull" (2003). 2003 Decisions. Paper 814.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/814


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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

                                2


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
                                4


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.

                                5


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:

                                6


       "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.

                                10


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

                                13
