318 F.3d 483 | 3rd Cir. | 2003
Before: MANSMANN* and ALITO, Circuit Judges(cid:13) and FULLAM,** District Judge(cid:13) (Filed January 28, 2003)(cid:13) RONALD W. BELFON, ESQUIRE(cid:13) (ARGUED)(cid:13) Belfon & Evert(cid:13) 1217 Bjerge Gade(cid:13) Charlotte Amalie,(cid:13) St. Thomas, VI 00802(cid:13) Attorney for Appellant,(cid:13) Charles W. Turnbull(cid:13) JOEL H. FELD, ESQUIRE (ARGUED)(cid:13) KERRY E. DRUE, ESQUIRE(cid:13) Office of the Attorney General of the(cid:13) Virgin Islands(cid:13) Department of Justice(cid:13) 48B-50C Kronprindsens Gade,(cid:13) GERS Building, 2nd Floor(cid:13) Charlotte Amalie,(cid:13) St. Thomas, VI 00802(cid:13) Attorneys for Appellant,(cid:13) Government of the Virgin Islands(cid:13) _________________________________________________________________(cid:13) * Honorable Carol Los Mansmann participated in the oral argument and(cid:13) conference in this case, but died before she could join or concur in this(cid:13) Opinion.(cid:13) ** Honorable John P. Fullam, United States District Judge for the(cid:13) Eastern District of Pennsylvania, sitting by designation.(cid:13) 3(cid:13) BRUCE P. BENNETT, ESQUIRE(cid:13) (ARGUED)(cid:13) Hunter, Colianni, Cole & Bennett(cid:13) 1138 King Street, Suite 301(cid:13) Christiansted, St. Croix, VI 00820(cid:13) Attorney for(cid:13) Vivian Ebbesen-Fludd,(cid:13) Appellee at No. 99-3644(cid:13) JAMES M. DERR, ESQUIRE(cid:13) (ARGUED)(cid:13) 28-29 Norre Gade(cid:13) P.O. Box 664(cid:13) St. Thomas, VI 00804(cid:13) Attorney for Audrey Callwood,(cid:13) Jeremiah Lee, Patrick Sprauve and(cid:13) Maxwell George,(cid:13) Appellees at No. 99-4084(cid:13) OPINION OF THE COURT(cid:13) FULLAM, District Judge:(cid:13) In the 1998 gubernatorial election in the United States(cid:13) Virgin Islands, the then incumbent Governor Roy Lester(cid:13) Schneider was defeated by his Democratic challenger,(cid:13) Charles W. Turnbull. Shortly after the change of(cid:13) administrations, a substantial number of employees of the(cid:13) Virgin Islands Government lost their jobs.(cid:13) In three separate lawsuits, 27 of these former employees(cid:13) challenged their dismissals, alleging that they were fired(cid:13) because of their political beliefs and activities on behalf of(cid:13) Governor Schneider, in violation of their rights under the(cid:13) First Amendment of the United States Constitution, and(cid:13) also that their due process rights under the Fourteenth(cid:13) Amendment had been violated, inasmuch as they were not(cid:13) accorded notice or a hearing. The three lawsuits were(cid:13) consolidated, at least for pretrial purposes. The claims of 22(cid:13) of the 27 original plaintiffs were finally resolved at the(cid:13) District Court level, either because of amicable settlements,(cid:13) or because the losing party did not appeal. The remaining(cid:13) 4(cid:13) five cases are now pending in this court as the result of(cid:13) appeals by the defendants from injunctive orders entered(cid:13) by the District Court, upholding the claims of the(cid:13) discharged employees, and ordering their reinstatement.(cid:13) Four of these cases are involved in appeal No. 99-4084; a(cid:13) fifth case is the subject of appeal No. 99-3644. Both(cid:13) appeals will be disposed of in this Opinion.(cid:13) The appellants are the Government of the Virgin Islands(cid:13) and Governor Turnbull in his official capacity, represented(cid:13) by the same counsel, and Governor Turnbull in his(cid:13) individual capacity, who has separate representation.(cid:13) Throughout this opinion, we will use the term "the(cid:13) Government" to refer both to the defendant Government of(cid:13) the Virgin Islands and to Governor Turnbull in his official(cid:13) capacity, and "Governor Turnbull" to refer to the Governor(cid:13) in his individual capacity.(cid:13) The four appellees in No. 99-4084, and the positions from(cid:13) which they were fired and to which they have been(cid:13) reinstated, are: Audrey Callwood, Coordinator of Special(cid:13) Events in Tourism; Patrick Sprauve, Special Projects(cid:13) Coordinator in the Department of Finance, on temporary(cid:13) assignment to the Governor’s Home Protection Roofing(cid:13) Program; Maxwell George, Revenue Accounts Manager in(cid:13) the Department of Health; and Jeremiah Lee, Trades(cid:13) Inspector in the Department of Planning and Natural(cid:13) Resources. All were supporters of former Governor(cid:13) Schneider, and had been actively involved in his(cid:13) unsuccessful campaign for re-election. They were fired(cid:13) shortly after Governor Turnbull’s inauguration, without(cid:13) explanation. The Governor publicly acknowledged, at the(cid:13) time, that at least some of the personnel changes were(cid:13) politically motivated. The explanations since advanced for(cid:13) these personnel decisions -- budgetary constraints,(cid:13) reducing the size of the government, etc. -- are implausible,(cid:13) given the undisputed facts that total expenditures(cid:13) increased, and included many new hires at increased(cid:13) compensation. The trial judge understandably found as a(cid:13) fact that all of the appellees were discharged for political(cid:13) reasons. These findings are not clearly erroneous, and will(cid:13) not be disturbed.(cid:13) 5(cid:13) The issues which do require discussion are whether the(cid:13) District Court correctly concluded that the appellees’ First(cid:13) Amendment rights were superior to Governor Turnbull’s(cid:13) right to require that the policy-makers and confidential(cid:13) advisors in his administration share his political views and(cid:13) philosophy, under Branti v. Finkel, 445 U.S. 507 (1980),(cid:13) Elrod v. Burns, 427 U.S. 347 (1976) and their progeny; and(cid:13) whether all of the appellees had a sufficient property(cid:13) interest in continued employment to give rise to a due(cid:13) process right to notice and hearing, under the Fourteenth(cid:13) Amendment. As to both the First Amendment and the(cid:13) Fourteenth Amendment claims, analysis properly begins(cid:13) with consideration of applicable Virgin Islands statutes(cid:13) governing personnel matters.(cid:13) Under the Virgin Islands statutory scheme, the Governor(cid:13) is vested with the ultimate authority to hire and fire all(cid:13) government employees. Section 11 of the Revised Organic(cid:13) Act of 1954 provides:(cid:13) "The Governor shall have general supervision and(cid:13) control of all the departments, bureaus, agencies and(cid:13) other instrumentalities of the executive branch of the(cid:13) government of the Virgin Islands . . . he shall appoint,(cid:13) and may remove, all officers and employees of the(cid:13) executive branch of the government of the Virgin(cid:13) Islands, except as otherwise provided in this or any(cid:13) other act of Congress, or under the laws of the Virgin(cid:13) Islands . . ."(cid:13) This general authority is constrained by the provisions of(cid:13) the Virgin Islands Personnel Merit System, 3 V.I.C.SS 451-(cid:13) 690 (1995 and Supplement 2000), which contemplates that(cid:13) all government employees will be selected on the basis of(cid:13) merit, and may not be removed except after written notice(cid:13) of charges and an opportunity for a hearing, unless(cid:13) specifically exempted from these statutory protections.(cid:13) Thus, employees of the Virgin Islands Government are(cid:13) divided into two categories, the "Classified Service" entitled(cid:13) to Civil Service protection, and the "Exempt Service" not so(cid:13) entitled. But the statute strictly limits the types of(cid:13) employment which can be exempted from such coverage.(cid:13) All parties agree that the only permissible exemption for(cid:13) which these appellees might qualify is that for:(cid:13) 6(cid:13) "An officer or employee in a position of a policy-(cid:13) determining nature; employee who is a special(cid:13) assistant, or who is on special assignment to, or whose(cid:13) position requires a confidential relationship to a policy-(cid:13) making official when the position is so designated by(cid:13) the Governor and approved by the Legislature."(cid:13) 3 V.I.C. S451a(b)(8).(cid:13) There is thus a close (though not necessarily precise)(cid:13) correlation between the applicable standards for(cid:13) entitlement to protection under the First and Fourteenth(cid:13) Amendments: A person who is a policy-maker or in a(cid:13) confidential relationship to a policy-maker loses First(cid:13) Amendment protection under the Branti v. Finkel line of(cid:13) cases, and also may properly be exempted from Civil(cid:13) Service protection under the Virgin Islands statute, and(cid:13) thus not have a Fourteenth Amendment "property interest"(cid:13) in continued employment.(cid:13) Unfortunately, however, there seems to have been a(cid:13) routine practice of not adhering strictly to the requirements(cid:13) of the Virgin Islands merit system regime. Many non-policy(cid:13) positions were filled without competitive examinations, and(cid:13) the employees were required to sign acknowledgments that(cid:13) they would be exempt from Civil Service protection. There(cid:13) is some suggestion in the record of a general understanding(cid:13) that merely reviewing resumes and making selections(cid:13) fulfilled the requirement of competitive examinations, or(cid:13) that appointment to a position on the basis of political(cid:13) patronage necessarily warranted exemption from Civil(cid:13) Service protections, regardless of the nature of the job.(cid:13) Appellants argued in the District Court that all of the(cid:13) appellees were bound by the terms of the "Notice of(cid:13) Personnel Action" ("NOPA") which they signed,(cid:13) acknowledging that they were in the "exempt" rather than(cid:13) "classified" service. The district judge rejected that(cid:13) argument, ruling that the statute took precedence over the(cid:13) provisions of the NOPA, citing Richardson v. Felix, 856 F.2d(cid:13) 505, 511 (3d Cir. 1988); and that appellees’ signatures on(cid:13) their NOPAs were coerced and involuntary. As we(cid:13) understand it, appellants do not now challenge that ruling.(cid:13) 7(cid:13) Under Third Circuit precedent that we are bound to(cid:13) follow, whether a person is a "policy-maker" who may be(cid:13) discharged for political reasons is a factual issue,(cid:13) reviewable under the "clearly erroneous" standard. Furlong(cid:13) v. Gudknecht, 808 F.2d 233, 235 (3d Cir. 1986); Rosenthal(cid:13) v. Rizzo, 555 F.2d 390 (3d Cir. 1977). But see, e.g.,(cid:13) McGurrin Ehrhard v. Connolly, 867 F.2d 92 (1st Cir. 1989)(cid:13) (Breyer, J.) )("In light of the important constitutional and(cid:13) governmental interests surrounding the application of the(cid:13) [Elrod-Branti] exception, we believe it the kind of legal(cid:13) question that the court, not the jury, is best suited to(cid:13) determine."); Rosenthal, 555 F.2d at 396 (Aldisert, J.,(cid:13) dissenting). Cf. Zold v. Township of Mantua, 935 F.2d 633,(cid:13) 636 (3d Cir. 1991) (court of appeals must give the facts(cid:13) bearing on the Elrod-Branti issue "special scrutiny"). We(cid:13) likewise hold that, under 3 V.I.C. S 451a(b)(8), whether an(cid:13) employee holds a "position of a policy-determining nature"(cid:13) or a position requiring "a confidential relationship to a(cid:13) policy-making official" is a factual issue reviewable only for(cid:13) clear error.(cid:13) The District Court ruled that none of the four appellees(cid:13) qualified as policy-makers, hence they were not removable(cid:13) for political reasons. As to all of the appellants except(cid:13) Audrey Callwood, the District Court will be affirmed.(cid:13) Patrick Sprauve was a special assistant in the Department(cid:13) of Finance, gathering information for audits, compiling an(cid:13) assessment for the Government Development Bank, and(cid:13) carrying out assignments from the Commissioner of(cid:13) Finance. He was then transferred to the Roofing Program,(cid:13) where he acted as a coordinator between the Roofing(cid:13) Program and the Department of Finance. The District Court(cid:13) did not err in concluding that Mr. Sprauve was not within(cid:13) the confidential or policy-making exception. Indeed, only(cid:13) the Governor now challenges that ruling.(cid:13) Appellee Maxwell George was a "Revenue Accounts(cid:13) Manager" in the Department of Health. He supervised a(cid:13) department including some 26 employees, and was(cid:13) responsible for seeing to it that services performed by the(cid:13) Government in the three American Virgin Islands, St.(cid:13) Thomas, St. John and St. Croix, were paid for. He had no(cid:13) input into policy matters but was, in effect, a bill-collector.(cid:13) 8(cid:13) Here again, only the Governor in his individual capacity(cid:13) challenges the District Court ruling that Mr. George was(cid:13) not a policy-maker. The District Court’s ruling was not(cid:13) clearly erroneous.(cid:13) As to both Sprauve and George, the finding that they(cid:13) were not policy-makers establishes not only that their First(cid:13) Amendment rights were violated when they were discharged(cid:13) for political reasons, but also that their Fourteenth(cid:13) Amendment rights were violated when they were fired(cid:13) without due process in the form of the required notice and(cid:13) hearing.(cid:13) The case of appellee Jeremiah Lee stands on a somewhat(cid:13) different footing. He had not actually begun work in the(cid:13) position for which he was hired, although, as found by the(cid:13) District Court, all of the formalities had been completed,(cid:13) and the failure to allow him to begin work was politically-(cid:13) motivated. The job in question was that of a "Trades(cid:13) Inspector" in the Department of Planning and Natural(cid:13) Resources. No one now contends that this was a policy-(cid:13) making position, and the finding that he was indeed hired(cid:13) and, in effect, terminated for political reasons establishes(cid:13) that his First Amendment rights were violated. But this(cid:13) does not mean, as the District Court seems to have(cid:13) assumed, that he had a sufficient property interest in the(cid:13) job to give rise to Fourteenth Amendment concerns. Only(cid:13) "regular" employees had Civil Service protection. In order to(cid:13) be a "regular" employee, satisfactory completion of a(cid:13) probationary period was required, and Mr. Lee plainly did(cid:13) not fulfill that requirement. Thus, although his firing for(cid:13) political reasons violated his First Amendment rights, his(cid:13) Fourteenth Amendment due process rights were not(cid:13) violated.(cid:13) As to appellee Audrey Callwood, however, we conclude(cid:13) that the District Court erred. Her position was that of(cid:13) Coordinator of Special Events in the Department of(cid:13) Tourism. She testified that her primary responsibility was(cid:13) creating and implementing events for the community that(cid:13) celebrated cultural and historical holidays. She did this at(cid:13) the direction of the Commissioner and Assistant(cid:13) Commissioner of Tourism.(cid:13) 9(cid:13) In Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), this(cid:13) Court held that a secretary in the Office of Public(cid:13) Information of Bucks County was a policy-maker. Although(cid:13) many of her duties were plainly clerical, the Court also(cid:13) noted:(cid:13) "There is no dispute over the fact, however, that Brown(cid:13) was responsible for writing press releases. The court(cid:13) below found that the duties of the position also(cid:13) required her to write speeches, communicate with(cid:13) legislators and, most important, present the views of(cid:13) the Commissioners to the press and public on a daily(cid:13) basis. The court below correctly determined that(cid:13) Brown’s position is one which cannot be performed(cid:13) effectively except by someone who shares the political(cid:13) beliefs of the Commissioners."(cid:13) 787 F.2d at 170.(cid:13) In Assaf v. Fields, 178 F.3d 170, 178 (3d Cir. 1999) the(cid:13) Court stated:(cid:13) "We have held that a "common thread" among cases(cid:13) identifying a policy-making or confidential position is(cid:13) "that their positions related to the government’s activity(cid:13) vis-a-vis the public. That is, these positions entail the(cid:13) formulation or implementation of policies that have a(cid:13) direct impact on the public or the representation of(cid:13) government policies to the public."(cid:13) Because Ms. Callwood’s position involved constant(cid:13) interaction with the public on behalf of the Government,(cid:13) and because of the obvious importance of tourism to the(cid:13) Government of the Virgin Islands we conclude that, just as(cid:13) in the Brown case, compatible political affiliation can be a(cid:13) legitimate job requirement. The District Court’s decision(cid:13) cannot be squared with these Third Circuit precedents.(cid:13) To summarize, we uphold the injunctions entered by the(cid:13) District Court as to Patrick Sprauve and Maxwell George on(cid:13) both First Amendment and Fourteenth Amendment(cid:13) grounds, and as to Jeremiah Lee on First Amendment(cid:13) grounds. As to appellee Audrey Callwood, the judgment(cid:13) appealed from will be reversed.(cid:13) 10(cid:13) Appeal No. 99-3644 - Vivian Fludd v. Turnbull, et al.(cid:13) The Government and the Governor in his individual(cid:13) capacity also appeal from an order of the District Court(cid:13) granting a permanent injunction in favor of Vivian Fludd,(cid:13) reinstating her to her position as Executive Director of a(cid:13) medical clinic at Frederiksted. The District Court ruled that(cid:13) her position was not one where political affiliation was a(cid:13) permissible factor in the discharge decision -- i.e., that her(cid:13) First Amendment rights were violated -- and that, in any(cid:13) event, the Governor lacked the legal authority to fire her.(cid:13) Because we agree with the District Court on the first issue,(cid:13) we need not dwell upon the second.(cid:13) The evidence as to whether Ms. Fludd occupied a policy-(cid:13) making position was conflicting, and we cannot say that(cid:13) the district judge’s credibility choices were clearly(cid:13) erroneous. Morever, the district judge was justified in(cid:13) considering the non-political nature of the activities carried(cid:13) out by medical clinics. See Furlong v. Gudknecht , supra.(cid:13) (Deputy Recorder of Deeds functions are non-political).(cid:13) We note also a further factor which the District Court(cid:13) mentioned. As a condition of obtaining federal funding, the(cid:13) Virgin Islands Government was required to arrange matters(cid:13) so that the clinic would no longer be directly supervised by(cid:13) the Virgin Islands Commissioner of Health, but rather(cid:13) would be controlled by a governing board of appointed(cid:13) officials serving fixed terms. The relationship between the(cid:13) governing board and the Virgin Islands government was set(cid:13) forth in a "memorandum of understanding" executed in(cid:13) 1997, which among other things, gave the board an(cid:13) advisory role in hiring and firing executive directors,(cid:13) interviewing applicants for the position, etc. Even if the(cid:13) district judge was incorrect in ruling that this change of(cid:13) format deprived the Governor of legal authority to discharge(cid:13) Ms. Fludd (an issue we find unnecessary to decide), it(cid:13) would indeed be ironic to hold that political affiliation was(cid:13) a legitimate job qualification, when the requirement of an(cid:13) independent board seems clearly to have been designed to(cid:13) remove the clinic staff from the political arena. We(cid:13) conclude, therefore, that the injunction was properly(cid:13) entered, because Ms. Fludd’s First Amendment rights were(cid:13) violated.(cid:13) 11(cid:13) Unlike the other appellees, Ms. Fludd has not asserted a(cid:13) Fourteenth Amendment due process violation.(cid:13) Qualified Immunity of the Governor(cid:13) The District Court granted injunctive relief only, and(cid:13) reserved for later disposition all damages issues. As to all of(cid:13) the appellees except Vivian Fludd, however, the District(cid:13) Court expressly ruled that the Governor was not entitled to(cid:13) qualified immunity. It is not entirely clear whether the(cid:13) District Court intended the same ruling to apply in the case(cid:13) of Ms. Fludd, but since the issue has been squarely(cid:13) presented to us and briefed by both sides, our decision will(cid:13) extend to the appeal affecting Ms. Fludd as well.(cid:13) The issue is whether the appellees’ firings violated a(cid:13) constitutional right which was clearly established at the(cid:13) time, such that an objectively reasonable decision-maker(cid:13) should have been aware of the likelihood that firing(cid:13) appellees violated their constitutional rights. The landmark(cid:13) decisions of the United States Supreme Court in Elrod v.(cid:13) Burns, 427 U.S. 347 (1976) and Branti v. Finkle, 445 U.S.(cid:13) 507 (1980) firmly established the constitutional right of(cid:13) every person not to be fired for political reasons unless(cid:13) political affiliation had a bearing on job performance - i.e.,(cid:13) unless the person involved was a policy-maker. And the(cid:13) plethora of appellate court decisions, in this circuit and(cid:13) elsewhere, which have been rendered since Elrod and(cid:13) Branti have provided numerous examples of what is and(cid:13) what is not a policy-making position. Reasonable officials(cid:13) may be on notice of the probable unlawfulness of their(cid:13) conduct, even if there is not a "previous precedent directly(cid:13) on point." Acierno v. Cloutier, 40 F.3d 597, 620 (3d Cir.(cid:13) 1994). As the Supreme Court stated in Anderson v.(cid:13) Creighton, 483 U.S. 635 (1982), the "clearly established"(cid:13) standard does not require that "the very action in question(cid:13) has previously been held unlawful." See also Pro v.(cid:13) Donatucci, 81 F.3d 1283 (3d Cir. 1996); Assaf v. Fields, 178(cid:13) F.3d 170 (3d Cir. 1999).(cid:13) We assume, as appellant’s counsel asserts, that the(cid:13) Governor did not intend to violate anyone’s constitutional(cid:13) rights, and that he entertained a genuine belief that his(cid:13) 12(cid:13) actions were not unlawful. But the issue is not his(cid:13) subjective intent, but whether it was objectively reasonable(cid:13) for him to discharge the appellees. In light of the(cid:13) precedents cited above, particularly the Pro v. Donatucci(cid:13) and Assaf v. Fields decisions, we conclude that the District(cid:13) Court was correct in denying qualified immunity.(cid:13) CONCLUSION(cid:13) As to appellee Audrey Callwood, the order appealed from(cid:13) will be reversed. As to the appellees Patrick Sprauve,(cid:13) Maxwell George and Vivian Fludd, the orders appealed from(cid:13) will be affirmed. As to appellee Jeremiah Lee, the injunctive(cid:13) order appealed will be affirmed, as to the First Amendment(cid:13) ground only. To the extent that the District Court denied(cid:13) the Governor’s assertion of qualified immunity, the orders(cid:13) appealed from will be affirmed.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 13