right next case of the day spring versus west indian company limited number seventeen dash to seven seven six and seventeen dash two seven seven seven you understand this is very simple case based on your prior holding an employee of a public employee or is a public employee and i want to highlight a few things that may not have come through on in the in the briefing in this matter we believe that this court has already decided the issue of whether or not the opponents are public employees in your prior opinion your honor you dealt specifically with the issue addressed in the thirty you stated in your opinion that page sixteen that you were not persuaded by the argument that under the general business corporation laws of the virgin islands waco is empowered to take action and therefore is a private corporation well i don't against it but which we haven't decided this issue yet have we not this narrow issue but it's an employment case both of them are and we're deciding whether or not it's a public entity you decided it was a public entity you also stated in your opinion at page fifteen that you were persuaded by white coats argument that should be considered a governmental entity because their employees unlike other governmental employees are not beneficiaries of the government retired government retirement system personal merit system and not subject to jurisdiction i think you can where you are but here you go you're saying they were quote unquote regular employees right yes yes yes it did seems that to be a regular employee that you wanted to do one of two things one is you must have been appointed to a position in the classified or career service or served in temporary position visitation for more than two years and a partner agency of the executive branch the white will continue to operate up until your opinion and still continues to do so as it was a private business even though it was a public entity so nothing actually was w accomplished as far as first of all that sounds like a practical way of saying you don't need either of those let me explain why we don't need either of the well because why close a truly eccentric or unusual organization not the people that work there but if the way the way it came into being in the way it's evolved over time i'm not saying that at all your honor i think that they were operating because they didn't know what they were as a public entity well but i'm interested in your answer to judge she care says question which of those t you need to meet one of those two or both of those two and i haven't heard you say which of those two you're calling to me it's our position that we are that these employees are regular employees this smith was a grandfathered in she wasn't hired she was hired before the act in one thousand nine hundred two sprout was hired after the act her work but they were hard on her under a regime involving an employee handbook at all is that all separate from where the regular employees are no no your honor we believe that it's our position that they are regular employees and then they meet the competitive hiring procedures i mean they have to literally go back and where they appointed or were they temporary or  saying they can meet the definition of regular without one of those two they can't because of the situation that went on at waco they continue to operate as a private and private company and they didn't change their ways  of operating with regard to employees but if you look at this fight it case it actually holds that the shelter was acting as an officer of a public agency that's what vita states in the standing issue so therefore when i think everyone agrees that it's public because for the reasons you articulated i think that's a given i think the you've still got to persuade us that they're regular employees in the statute seems to require one of the two things that judge gets asked you about and i still haven't heard whether they've been appointed or we're temporary well neither one of them have been appointed they were there nor were they temporary no they were not temporary they're right so they so they  they're not regular for one of those two reasons they have to be regular for some other reason let me let me show you my cards i thought you were going to argue perhaps that they have to be regular by default but in other words there are two types of employees there are the exempt in the nonexempt and if you're in the civil service and you're not an exempt worker then you have to be regular unless you're probationary and you know that these two are probationary they're long they were long tenured so they were probationary so your argument that the they have to be regular there's no other option is exactly what we're arguing in the briefs i was simply trying to highlight for your honor some things that i thought were not in the breeze but we met we go through it that does seem contrary to the statutory language the judge she cited to you so what do you have a statutory hook for us apart from the one he cited or is it more just sort of the nature of things that they're civil servants and therefore it necessarily follows that all civil does but that code the what what we believe your honour's is that first of all let me let me before i get to that let me just go back to one with regard to the prior questions your honor code does listen number of exceptions to whether or not someone is exempt or career and none of which of these apply in this case therefore there is no other option and for the appellant to be classed as career public service employees that's what we're arguing in the pre and that's it three b i see twenty five or fifty one a b and c so if you look at that they've been appointed by the governor and all that right and that didn't happen either we had again because of the legacy aspect of this strange entity that we were looking at it in a vacuum now with if we've got this idiosyncratic entity that's been grandfathered in it is as you say a public entity it's pretty odd isn't it of common sensical level to say that a c o n a c f o are entitled to the sort of panoply of civil service protections that are typically given to non managerial or or middle middle management i mean they were the at the very highest echelons of the company other than the c e o well there's something very sort of odd about that claim a something it all it was why well to due process protections as long as they meet the definition of a regular employee of course are entitled to due process if they're public employees but the civil we're at we're discussing here whether their civil servants are not entitled to all civil service protections and if you're right what that means then is that number two in the number three person in the company or the the two number twos can be completely at odds on all manner of policy and goal setting and management style with the o they could be completely at odds in every way and you're saying that the c e o must continue to work with these two people isn't that the upshot of your argument that's factually what happened your honor so you want you want this public entity talking about the facts of this case i'm saying the upshot of your argument if is that if the c e o in the c f o are entitled to civil service protections they could have be working during this could be like you know adams and jefferson they could be working directly across purposes and you're saying the c e o must continue to work with with those two people the i'm saying that based on the facts of this case these folks were grandfathered in they didn't have a choice whether or not the company was sold to the government or not they were there they continued to do their jobs and and they then were required to and gershwin's brawl went through his competitive process of trying to become the c e o there was competitive process for that interview's everything and he lost and they gave him another job that doesn't necessarily mean there's going to be chaos and there and i had the reserve the rest of my time ok all right thank you thank you good morning your honour's for the counsel carol rich of dudley rich and behalf of the west indian company limited i want to begin by going to the underlying problem that became obvious as my opponent was trying to answer your questions the idea that these two people should be considered to be career public service employees of an executive branch of the virgin islands was not explored or examined in the way your honors are examin it wasn't raised before the district court and it's not part of this record you would have to go picking back through the record two things that were raised in twenty thirty nine and then not included and not addressed again when the summary judgment were before the district court to find any place where mr sparrow or miss smith ever tried to argue that they should be treated as career public service employees of the virgin islands government's executive branch understand that argument but the district court did consider it  to this record to consider it so you know let's assume we will consider we understand your argument though well yeah and i just wanted to add that the district court considered it only in raising the fact that there was nothing in the record to address it and therefore there was no evidence to even suggest that it would apply and so if you that is a matter of consider whether didn't they were classified or no evidence they were regular either neither there was simply no evidence on the subject and what the judge mentioned were just two reasons why there was no such evidence mentioning that they hadn't sat for competitive exams and the three otherwise didn't need to definition but also to go back to your honor's prior opinion in this case we submit that there is absolutely nothing in the district court's opinion that is in any way inconsistent with this court's holding in the prior opinion this court did not hold that w public employer for purposes of career public service this court held that white though is a public entity for purpose of concert right but in this case we have to determine what it is and it's in the executive branch right it has to be were else could have been well i think that argument sort of misses the point it is not an executive branch branch agency under a virgin island statute you have to look to virgin islands law to determine what waco is and where it fits and where it does not where does it fit if it does it if it's not part of the executive where does it fit within the virgin islands government it fits under the act by which it was acquired and it and that is unique because weikel was not created by statute weikel was purchased and a statute was enacted to approve that purchase and to an act the stock purchase agreement as law and so why go fits only under the act and the stock purchase agreement it does not fit under the other categories because it wasn't created by statute does that mean it's a public entity not within any of the three branches of the virgin islands government it is owned by the executive branch i agree with that your honor is as every single entity is but that isn't the test for whether these are career public service employees one of the sayings that the opponents are simply ignoring is the definitions in section five thirty of title three as to which employees  are entitled to property interest in their continued employment and if you look at title three three five thirty it contains a series of definitions as to who is entitle to these protections and particularly under section two there is a requirement that a person to have this due process right as a regular career public service employee must have been dismissed by a head office or of an executive department or agency and then there is a further definition of what that means not simply by reference to whether it's the executive branch of the judicial branch but in the laws of the virgin islands there's a specific definition or head officer is defined and it and the executive branch agency is defined instrumentality of the government includes a whole list of agencies which in some ways may be similar to what i call like the water and power authority the waste management authority but at no time even since the acquisition of waco has reichl ever been added to section eating so why pro is truly unique its own by the executive that are you arguing that none of its employees are entitled to civil service protections that is correct your honor and because the act  employees are are treated differently they are hired differently they are fired differently and they have different rights when they are fired because they are entitled to use the wrongful discharge act to address their firing which does not apply to the government poised to go before the public employee situation where we have into two that was previously a private corporation and then was the stock was acquired by the government and the agreement between the government and the corporate and the corporation that the purchase agreement became law and i think the best way to look at how we deal with this is the way the virgin islands supreme court dealt with that in the taxi case which is why we cited and discussed it in our brief and in that case which by the way i argued before the virgin islands supreme court we had a long discussion about how and why close position that for its most of its operational purposes it operates under the general corporations laws of the virgin islands as opposed to all of the structures that apply to other government agencies is because of the way it was acquired and because of act fifty eight thirty i cannot remember the number but if the act by which it was acquired and the virgin islands supreme court examined this court's previous opinion and the issues very carefully and they came to that same conclusion they did say that for purposes of whether you could have taxpayer standing against waikato that they considered it public but for all other purposes including its decisions about contracting an operation it was entitle to the deference of the business judgment rule because the legislature intended it to operate like a corporation and they were concerned with some of the same things that your honour's have raised here with allowing michael to operate as it has very successfully done for the good of the virgin islands without having to go through a lot of the cumbersome government procedures that could screw one of the major focuses of arcturus and treat industry into complete chaos the idea that every employee of waco is entitle to full civil service protection would mean that michael would have no ability to decide who its management is why go has a board and the board has a process and again i  absolutely not your honor that they had their chance below and it is not up to the court i would like with the argument wasn't the sprawling smith are entitled to civil service protections what was the argument the argument below and i detailed this in the brief and you can see it in the appendix they made the argument that they were entitled to protection under the wrongful discharge act the stock purchase agreement and the employee handbook that was their argument that was everything that was presented below they also made arguments under the first amendment and under equal protection all of those arguments were rejected they have abandoned those but the district court carefully considered and rejected the arguments because under the wrongful discharge act it does not apply to executive managerial employees like these two plaintiffs and so that didn't help them and the court found that the handbook and the act gave them no property interest and then the court also noted that the only other place they could get a property interests under virgin islands law would have been if they had been career public service employees which they were not and there was nothing in the record to suggest they might be and the reason they were i think i recall they just record saying was they're not regular employees who just recorded they didn't follow any of the processes in the personal merit system or under the virgin islands code to become regular employees they didn't sit for competitive exams they weren't appointed by the governor they they didn't were involved in the personal merit system they didn't fit any of those criteria because he don't work they work for an interview that's owned by the government but they weren't hired through that process and as your honor pointed out had that's policy making employees ten do not have a property interesting continued employment if they were in the executive branch i know this isn't your argument but i'm trying to give you a hypothetical so i can understand this better if this were firmly within the executive branch of government ism is bents right the because they don't satisfy one of those exceptions including appointment by the governor the default position is they would be civil servants well the problem with that they're not in the executive branch of the government because the only point of by the government i make any sense i ask you hypothetical i'm saying i'm trying to understand the dichotomy here i understand what you're saying that this is not you said clearly i think that white was owned by the executive branch but not within the executive branch and it operates outside the executive branch in terms of hiring firing etc employee rights etc that's your argument right yes sure and that is consistent with how the virgin islands supreme court has reconciled this court's prior opinion with the act and the stock perryman in the laws of the virgin islands which i submit this is a question of virgin islands long and looking to how the virgin islands supreme court reconciled those things is extremely persuasive all right but if the counterfactual if it were in the executive branch isn't ms bents right that if you don't satisfy one of those i think seven exceptions the most sort of  theoretically applicable one here would have been appointment by the governor and cetera if you don't satisfy one of those you're in the civil service correct that would mean that everyone at waco no no no no white i want talk about i'm i'm asking a hypothetical i'm asking if executive branch workers who aren't subject to one of those exceptions by default they are in the classified service in the civil service right am not sure that that is the case your honor ok it could be i don't think that it applies to what's happening here i understand your honor is hypothetical and i hadn't really thought about it that way because it's so far removed from the facts of this case i understand the concern and the problem is that that would then also change a whole lot of other ways in which the government operates that i don't think was ever the intent of those statutes and that the other problem is that you have to reconcile the legislative scheme for government and career and public service employees and all the definitions that appear in that scheme with the stock purchase agreement and the white house structure and you're saying it doesn't fit it's the ultimate square peg in a round hole exactly or don't even try to sort of analogize why go to the the regime the fairly fairly complicated regime of hiring and firing civil service because there are so many other elements to that regime it's not just a matter of first of all i what if this did apply to wipe then the heads of the agencies would have been appointed by the governor they would have been hired by the way these people were hired there and the position for instance that mr straw applied for and didn't get would have been advertised in that way it wasn't a civil service examination it didn't go through the whole political process it wasn't a notice of personnel action they're not paid through the government i mean there are so many different levels if i hate to maybe this is your next case but if white coat is what you say it is it sounds like it could be a separation of powers problem do you run or it's neither legislative judicial executive it's it's owned by the executive but it's not controlled and part of the executive that operates through its own handbook and its own policies and procedures i mean that seems well but i'm not saying that at all your honor because ultimately it is controlled by the executive and we don't dispute that is this court found white that was one hundred percent controlled and the executive power is within the authority of the public finance authority which holds one hundred percent of the shares to appoint members to the board of white though so it is controlled it's not a rogue agency the white go board is appointed by the p f a and ultimately through the governor and so it is always controlled by the executive it's just that operationally the board which is appointed by the executive and controlled by the executive which is the reason why this court held that for constitutional purposes it was considered a government entity that gives the executive the control but a decision has made made by the executive and by the legislature to allow weikel to operate through its corporate charter and that was an act into law so it's through the executive that's true it's just that it is a different structure but it doesn't make it a rogue agency or owner and it doesn't make it a fourth branch of government is that we would you don't want us to do i understand you want a firm and if it's on the basis that they're not regular employees is that it was a problematic here for your client well if you're suggesting that you would be affirming on the basis that on the basis that the district court granted summary judgment which is why those employees are subject to the wrongful discharge act the employee handbook and the strictures of the stock purchase agreement and these employees were treated under those provisions and under those provisions they did not show that they had a property interesting continued employment had they had an employment contract which could have been negotiated and in fact was attempted to be negotiated with mr sprowl but it never came to fruition then they would have been protected but why go is handled and all of its employees have been handled since its acquisition under the wrong filed wrongful discharge and that was com no that's not what she's arguing because that argument failed below and she decided to try a new one which came before this court that is what was argued below that is what was argued and that is what the court decided the argument below was there covered by the wrongful discharge act and there was a convoluted argument as to why even though they were managerial employees they should be covered anyway and that argument was abandoned but that was the argument in fact before the briefs were filed in the concise summary of the case that was still the argument it wasn't till the breeze was filed that this new argument was made so the arguments through out this case the argument that was addressed by the evidence the argument was addressed by the judge in the parties was that somehow through a reading of the wrongful discharge act in the stock purchase agreement you could find a property in trust under virgin islands law to protect these two employees and give them a fourteenth amendment claim and the district court examined all those arguments and said it's not there and that is what we want you to affirm because that was correct that is what was before the court that is what was argued and that is what applies to why go under virgin islands law as interpreted by this court in its prior opinion and as further interpreted and explained by the virgin islands supreme court in the taxi case thank you counsel thank you employees according to the definitions in the virgin islands code where did you argue that in the district court we argued it in the first of all it's raised in our complaint which is the count to the joint a ninety it's raised again in the er what is that what's a count style this violation of due process we've been arguing due process violations it's it's now ok but and then within that count where do you mention to mention regular employees allege that your clients were regular employees we don't allege regular employees but those issues came up in the first set in the first appeal that your honor authored we raised the issue of a process violation that they were told the protections of the virgin islands law they came back with the most likely you have to allege that they were classified and regular rights let's wind back your honour's we gershman sprout contrary to what appellant state in their brief which is completely false filed a claim with perv public employee relations what i'm asking in your complaint did you allege that strawman smith were classified civil servants now we did not legit it was a generic complaint that said because they work for white on it was a public entity they therefore when told the due process for all right ok so you made you made a claim that they were their constitutional rights were violated but in support of that claim you did not allege that they were classified regular civil servants we did later on in the briefing in the first appeal before the court already ruled it was a public entity we briefed that issue was brief but very well but after after our court ruled it was a public entity it went back to the district court as that's what i'm asking where in that district court did you argue to the the trial judge remember we were here to review the work of the trial judge where did you argue to the trial judge that's province smith are classified regular employees it wasn't addressed in the motion for summary judgment that we responded to so we responded to what what was pled by the defendant and there they didn't plead defendants well what they say they briefed and but you so you didn't plead it in your complaint that they were classified or regular then they file a summary judgment motion and the issue of whether they're classified or regular is never really joined and briefed and argued to the trial court that's what it sounds like is that the facts were never developed an answer morny a prior questions your honor i mean but the facts are in the record i think your honour's can reverse based on what's in the record that the district court eroni slee failed basically what our briefs did what our brief does is do with the district court should have done which is go through the analysis to whether doesn't just say what opposing counsel says today rather she also mentions that they're not regular human rights goes off that's a that's in the opinion as i recall he goes off on this tangent stating that because he didn't state for competitive exams therefore they can't be public employees well that's not correct under the virgin islands code and they do fit in that that that exception that if they are i would you address though what ms rich was arguing because it's it's interesting that the notion that that white crow is truly idiosyncratic it's owned and controlled by the executive branch but that it's just wrong to assume that because it's owned and controlled by the executive branch that all of its employees are subject to the chapter twenty five and all the civil service requirements i don't think it's wrong to assume and i think that if the legislature want know it it made it makes it clear that the that regime takes those public corporations out of the civil service so because it's not it's a how do we know this one's in the  service because of the catch off there they they have to fit into the to the definition because if they're not if they're not exempt and they meet the definition of regular employee they therefore are employees of the executive branch and are members of the career service of the virgin islands and the reason this is so such an odd case and in a moment go ahead is because these folks were hired at the time  if they were if they would have been a government employee they would have gone and sat through the regular process because they were grandfathered in some of these facts don't exist because but if we tried to argue in our brief factually that they still fit it we looked at the issue what is a competitive exam you don't have to sit down and take a test to be to have competitive procedures and if you look at what the whole bushel to was hired and mr straw was not hired that was a competitive procedure so they fit into this box because they don't fit in anywhere else and that's what the statutes say and that's what your prior holding i believe it's consistent with your prior holding and i believe it's consistent with the virgin islands supreme court holding in the tax you want you want all of y co then to be subject to these civil service regime the civil service regime and opposing counsel wants not of way to be subject to the civil service rules and i that's where that's where we ireland fortunately your honour's the it's an odd thing to fit but by if you find can we just be be sort of you know brutally honest and say this thing doesn't fit anywhere wall and that's what that's what it sounds like we've learned here in court today i mean you're both you're both trying mightily both seem very knowledgeable about this but you both seem to me making a pitch where it doesn't fit i've unfortunately i've been representing these folks one employed seventeen years that was marched out by security and embarrassing back that way and after seventeen years of service and the other one thirty one years of service same way marched out by security by mr sholto who no longer is running away at the head of waco he's gone and it's just unfortunate and they have due process rights once they were purchased by the government they they acquired purchase due process rights pursuant to your prior opinion that's our position this is the public employer by arguing their public employer and that they are regular career service employees we are therefore giving up the wrongful discharge act argument and what how i read fifty eight twenty six now is the intent of the danes at the time of the purchase was we have these folks for ever and this is how things operate this employer's more hundred two it was an amended until two thousand and ten around the time of the hotel association case so at the time of the purchase the w d a covered these folks i could represent any one of them under the w d a if they would have coverage so the purchase said we have all these people you can't fire him alicia's you have good cause so we don't as rights have to be transferred to where did the purchaser say that it's in the activity of twenty six we've been arguing that that's not the stock purchase agreement for good cause that's what it's that's why your argument now no but i'm this is so what does that have to do with this where we are now it's consistent with your honor's you're struggling with how to upload this opinion unfortunately you're asked to do the job the legislature with which hasn't been done they have a much stronger than job holder reversed i'm struggling to understand where in the world white go fits because it strikes me just personally as a as a remarkably idiosyncratic entity and i've never seen i don't see a clear analogue with the federal government or i don't know if it is it not completely idiosyncratic i mean it's possible your honor but i believe based on the facts if it's under the executive branch it's either kids not judicial it's not legislative so where is it in the le bron case says that amtrak is is an executive agency so bron it's considered executive under the v and then we also don't have a constitution here we have the organic tax we have to look you know we have that's another issue all right thank you counsel thank you we'll take