2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-2011

Claude Gerard v. John DeJongh

Precedential or Non-Precedential: Precedential

Docket No. 09-4579

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4579

_____________

CHARLES ILES

v.

GOVERNOR JOHN P. DE JONGH, JR., in his official and 

individual capacity, and THE GOVERNMENT OF THE 

UNITED STATES VIRGIN ISLANDS

(D.C. No. 1-07-cv-00094)

CLAUDE S.M. GERARD

v.

GOVERNOR JOHN P. DE JONGH, JR., in his official and 

individual capacity, and THE GOVERNMENT OF THE 

UNITED STATES VIRGIN ISLANDS

(D.C. Nos. 1-07-cv-00019 & 1-07-cv-00053)

John P. de Jongh, Jr., in his official capacity,

and the Government of the Virgin Islands,

Appellants
2

_____________________

On Appeal from the District Court

of the Virgin Islands

District Judge: Honorable Raymond L. Finch

___________________

Argued December 14, 2010

Before: McKEE, Chief Judge, FUENTES, SMITH, Circuit 

Judges

(Opinion Filed: April 19, 2011)

Pamela R. Tepper, Esq. [ARGUED]

Vincent F. Frazer, Esq.

Elliott M. Davis, Esq.

Richard S. Davis, Esq.

Office of the Attorney General of Virgin Islands

Department of Justice

34-38 Kronprindsens Gade, 

GERS Building, 2nd Floor

Charlotte Amalie,

St. Thomas, USVI 00802

Counsel for Appellants

Jeffrey B.C. Moorhead, Esq. [ARGUED]

CRT Brow Building

No. 1132 King Street, Suite #3

Christiansted, 

St. Croix, USVI 00820-5076
3

Counsel for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge: 

Shortly after commencing his first term in office, U.S. 

Virgin Islands Governor John P. de Jongh, Jr., fired Claude 

S.M. Gerard and Charles Iles, two public employees in the 

Department of Planning and Natural Resources. Both 

employees sued the Governor and the Government of the 

Virgin Islands, claiming that their terminations deprived them 

of their property interests in public employment without due 

process of law. Following an evidentiary hearing, the District 

Court agreed and issued a preliminary injunction directing 

that Gerard and Iles be reinstated and that they be 

compensated for lost wages. Governor de Jongh and the 

Government of the Virgin Islands appeal the order granting 

the preliminary injunction. We will reverse.

I.

In June 2004, then Governor Charles W. Turnbull 

signed two Notices of Personnel Action (“NOPA”) relevant 

to this case. In one notice, he transferred Appellee Charles 

Iles from his previous government position to that of Permits 

Coordinator for the Division of Coastal Zone Management, 

within the Department of Planning and Natural Resources. 

The NOPA listed Iles’ new position as “exempt.” Thereafter, 

Iles signed a letter addressed to the Acting Director, Division 
4

of Personnel, which stated:

In accordance with Act 5336, Section 

6(c) and Section 8(a), I am electing to be placed 

in the EXEMPT SERVICE of the Government 

of the Virgin Islands by accepting the position 

of Permits Coordinator, Division of Coastal 

Zone Management at $43,000.00 per annum, in 

the DEPARTMENT OF PLANNING AND 

NATURAL RESOURCES.

This request is voluntary as certified by 

witness. 

In the other notice, Governor Turnbull transferred 

Appellee Claude S.M. Gerard from his previous position to 

that of Assistant Director for the Division of Coastal Zone 

Management, within the Department of Planning and Natural 

Resources. The NOPA also stated that Gerard’s position was 

“exempt.” Gerard then signed a letter to the Acting Director, 

Division of Personnel that was identical to the one signed by 

Iles, except for its statement that Gerard’s new position was 

“Assistant Director, Division of Coastal Zone Management at 

$50,000.00 per annum.” 

In January 2007, de Jongh succeeded Turnbull as 

Governor of the Virgin Islands. Shortly after taking office, 

and without prior notice or a hearing, Governor de Jongh

terminated both Gerard and Iles from further government 

service. In a letter to Iles, he said:

You are hereby advised that your services as 

Permits Coordinator of the Coastal Zone 

Management in the Department of Planning and 
5

Natural Resources will no longer be necessary. 

Therefore, your employment with the 

Government of the Virgin Islands is terminated 

effective February 9, 2007. 

On behalf of the people of the Virgin Islands, I 

would like to thank you for your service. I wish 

you the best in all your future endeavors.

Governor de Jongh also terminated Gerard, writing 

him the same letter he wrote to Iles, except for substituting 

the position of “Assistant Director” for “Permits 

Coordinator.” 

Gerard and Iles filed complaints in the District Court 

for the Virgin Islands, alleging, among other things, that 

Governor de Jongh and the Government of the Virgin Islands 

had deprived them of their property interests in public 

employment without due process of law. Thereafter, Gerard 

and Iles moved for a preliminary injunction seeking

immediate reinstatement and back pay. After an evidentiary 

hearing, the District Court granted Gerard’s and Iles’ motions 

for preliminary injunctions and ordered that Governor de 

Jongh reinstate Gerard and Iles to their prior positions. The 

District Court also ordered that Gerard and Iles be 

compensated for the wages they would have otherwise 

received from the date of their termination to the date of their 

reinstatement. Governor de Jongh and the Government filed 

appeals from the preliminary injunction.1

 1 We have jurisdiction over this interlocutory appeal of a grant 

of a preliminary injunction pursuant to 28 U.S.C. § 

1292(a)(1).
6

II.

A.

To determine whether to grant a preliminary 

injunction, “a district court must consider: (1) whether the 

movant has shown a reasonable probability of success on the 

merits; (2) whether the movant will be irreparably injured by 

denial of the relief; (3) whether granting preliminary relief 

will result in even greater harm to the nonmoving party; and

(4) whether granting the preliminary relief will be in the 

public interest.” McTernan v. City of York, 577 F.3d 521, 

526 (3d Cir. 2009) (quoting United States v. Bell, 414 F.3d 

474, 478 n.4 (3d Cir. 2005)) (internal quotation marks 

omitted).

Although this case comes to us from the appeal of the 

grant of a preliminary injunction, Governor de Jongh only 

challenges the District Court’s ruling as to the first element of 

the preliminary injunction standard—the likelihood of 

success on the merits of Gerard and Iles’ procedural due 

process claim. 

We have explained that to establish a procedural due 

process claim, a plaintiff must demonstrate that “(1) he was 

deprived of an individual interest that is encompassed within 

the Fourteenth Amendment’s protection of life, liberty, or 

property, and (2) the procedures available to him did not 

provide due process of law.” Biliski v. Red Clay Consol. 

School Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009) 

(quoting Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d 
7

Cir. 2006)).

2

 “The question of whether an employee has a 

property right in continued employment is a question of state 

[or territorial] law.” McDaniels v. Flick, 59 F.3d 446, 458

(3d Cir. 1995) (citing Board of Regents of State Colleges v. 

Roth, 408 U.S. 564, 577 (1972)). However, before 

determining whether Gerard and Iles have a property right in 

their employment under Virgin Islands law, it is helpful to 

examine the various statutory provisions governing public 

employment in the Virgin Islands. Employee classifications 

contained in the statutory provisions are important because 

they determine which employees are entitled to due process 

protection before termination. 

B.

Beginning with the two broadest categories under 

Virgin Islands law, public employees are divided into (1) 

“career service” and (2) “exempt service” employees. See

Martinez-Sanes v. Turnbull, 318 F.3d 483, 487 (3d Cir. 2003) 

(“Thus, employees of the Virgin Islands are divided into two 

categories, the ‘[Career] Service’ entitled to Civil Service 

protection, and the ‘Exempt Service’ not so entitled.”). The 

division between these two categories is set forth in 3 V.I.C. § 

451a(c), which provides that “[a]ll positions in the Executive 

Branch of the United States Virgin Islands Government not 

exempted under subsection (b) of this section shall be in the 

 2 In order to comport with due process, in cases where it is 

possible to conduct a pre-termination hearing, “[t]he tenured 

public employee is entitled to oral or written notice of the 

charges against him, an explanation of the employer’s 

evidence, and an opportunity to present his side of the story.” 

Biliski, 574 F.3d at 220.
8

career service.” In other words, an employee is in the career 

service unless the employee holds an exempt position

described in 3 V.I.C. § 451a(b)(1)-(8). Because the parties 

agree that subsections (1) through (7) of § 451a(b) are not 

applicable here, we focus our analysis on subsection (8). 

Under subsection (8), an employee is exempt if he or she is:

an officer or employee in a position of a policydetermining nature when the position is so 

designated by the Governor and submitted to 

the Legislature; and an employee who is a 

special assistant, or who is on special 

assignment to, or whose position requires a 

confidential relationship with a policy-making 

official when the position is so designated by 

the Governor and submitted to the Legislature.

(emphasis added). Thus, a position is exempt and not in the 

career service category when the Governor designates it as a 

position of a “policy-determining nature” and it is submitted 

to the Legislature. The exempt designation is important 

because employees in that category can be terminated without 

cause. Employees who are not “exempt” are then considered 

“career service” employees.

The career service category is further divided by § 451 

into two subcategories: employees who are “regular” and 

those who are “not regular,” respectively. Thus, the 

categories of career service employees and regular employees 

are not interchangeable. Richardson v. Felix, 856 F.2d 505, 

509 (3d Cir. 1988). As we explained in Richardson, a 

“regular” employee is one “who has been appointed to a 

position in the [career] service in accordance with this chapter 
9

[relating to the Personnel Merit System] after completing his 

working test period.” Richardson, 856 F.2d at 509 (citing 3 

V.I.C. § 451 (1967)) (alterations in Richardson). Therefore, a 

“career service” employee is also a “regular” employee only 

if he has been appointed to his position in accordance with the 

Personnel Merit System and has completed his probationary 

period. 

Further, in interpreting Virgin Islands law, we have 

previously held that under the employee termination 

procedures of § 530, employees who are “regular employees” 

may be terminated only for cause, thus granting them “a 

property interest in continued employment.” Id.; see also

Martinez-Sanes, 318 F.3d at 489 (stating, in interpreting 

Virgin Islands law, that “[o]nly ‘regular’ employees had Civil 

Service Protection” and vacating injunction based on 

procedural due process claim, because plaintiff had not 

completed his probationary period as required by the 

definition of “regular” employee.) (emphasis added); 

Richardson, 856 F.2d at 511 n.8 (“As noted earlier in our 

discussion, section 530, the provision that makes regular

employees terminable only for cause, also sets forth 

procedures for the termination of such employees.”) 

(emphasis added). Accordingly, not all “career service” 

employees have due process protection, but rather, only those 

who also meet the definition of “regular” employees. 

C.

In the case before us, the District Court explained that 

under § 451a(b)(8), regardless of whether Gerard and Iles 

were in positions designated as policy-determining in nature, 

the Governor had not submitted those designated positions to 
10

the Legislature, as required for any “exempt” employee under 

§ 451a(b)(8). 

Governor de Jongh argues that the District Court

incorrectly concluded that the Governor must submit these

designations to the Legislature before employees in those 

positions can become “exempt.” It is true that in MartinezSanes, when determining whether an employee was in the 

“exempt service” under § 451a(b)(8), we focused exclusively 

on the fact-intensive question of whether a given employee 

was in a position of a policy-determining nature. 318 F.3d at

488-90. We did not analyze whether the employee’s position 

had been designated as “exempt” by the Governor and 

submitted to the Legislature. However, in 1999 when the 

suits in Martinez-Sanes were filed, § 451a(b)(8) did not 

include the current language requiring that a “position of a 

policy-determining nature” be “so designated by the 

Governor and submitted to the Legislature” before it could 

become an “exempt” position. In Martinez-Sanes, this Court 

relied on the pre-2000 version of § 451a(b)(8), which stated 

that “exempt” employees include:

[a]n 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 with a policy-making 

official when the position is so designated by 

the Governor and submitted to the Legislature.

318 F.3d at 487 (quoting the pre-2000 version of § 

451a(b)(8)). Notably, the first clause regarding “position[s] 

of a policy-determining nature” is separated from the rest of 
11

the subsection by a semicolon, thus indicating that the later 

modifier “when the position is so designated by the Governor 

and submitted to the Legislature” does not modify this first 

clause, as it does the remaining clauses in the subsection. The 

current language, however, makes “exempt”:

an officer or employee in a position of a policydetermining nature when the position is so 

designated by the Governor and submitted to 

the Legislature; and an employee who is a 

special assistant, or who is on special 

assignment to, or whose position requires a 

confidential relationship with a policy-making 

official when the position is so designated by 

the Governor and submitted to the Legislature.

(emphasis added). This change in the language of § 

451a(b)(8), which extends the designation and submission 

requirements to those employees in positions of a policydetermining nature, was created by a 2000 amendment to § 

451a. In light of this intervening change in the language of § 

451a, Martinez-Sanes can no longer be relied on to support

the position that Governor de Jongh advocates. 

Governor de Jongh argues that even if § 451a(b)(8) 

does require that all positions of a policy-determining nature 

be designated as such and “submitted to the Legislature,” 

testimony at the District Court hearing established that both 

Gerard’s and Iles’ designated positions were submitted to the 

Legislature. However, we have reviewed the pages in the 

Joint Appendix where this testimony allegedly occurred and 

find no evidence to support the claims made by Governor de 

Jongh. (De Jongh Brief, at 14-15, citing JA, at 157-204). On 
12

page 15, in footnote 2 of his brief, de Jongh also cites to 

Gerard’s “trial” transcript to support his claim of evidence 

that the designations were submitted to the Legislature. 

Although this transcript was not included in the Joint 

Appendix, we have obtained a copy and have considered it. 

After reviewing the testimony of Milton E. Potter, Assistant 

Director for the Division of Personnel for the Virgin Islands 

Government, we agree with the District Court that de Jongh 

has not shown that Gerard and Iles were “designated [as 

being in a position of a policy-determining nature] by the 

Governor and submitted to the Legislature.” 3 V.I.C. § 

451a(b)(8). 

The Governor further argues that the District Court 

broke off the evidentiary hearing despite his insistence that he

be permitted to present additional evidence. Again, however, 

nowhere in the record is there any indication that Governor de 

Jongh’s counsel wished to continue the hearing or proffer 

additional evidence. Indeed, just before the hearing ended,

Governor de Jongh’s counsel told the District Court: “Your 

Honor, [the] Government rests.” (JA, at 202).

Accordingly, after determining that there was no 

evidence to suggest that Gerard or Iles’ designated positions 

had been submitted to the Legislature, the District Court did 

not err when it found that neither Gerard nor Iles occupied an 

exempt position. Thus, because by definition “[a]ll positions 

in the Executive Branch of the United States Virgin Islands 

Government not exempted . . . shall be in the career 

service[,]” 3 V.I.C. § 451a(c), the District Court correctly 

found that Gerard and Iles were career service employees.

D.
13

As previously noted, merely because a Virgin Islands

public employee is part of the “career service” does not 

necessarily mean that he is also a “regular” employee with a 

property interest entitled to due process protection. In this 

regard, the District Court erred by conflating “career service” 

employees with “regular” employees. To be a “regular” 

employee and thus gain a property interest in employment, an 

employee must have been “appointed to a position in the 

[career] service in accordance with this chapter after 

completing his working test period.” 3 V.I.C.§ 451. “[T]his 

chapter” refers to Title 3, Chapter 25 of the Virgin Islands 

Code, which in addition to §§ 451 and 451a, also includes

Sections 521 through 535. These sections set forth the 

standards and requirements for “tests, appointments, 

promotions, and dismissals” of “regular” public employees. 

Under Section 521, to have been “appointed to a position in 

the [career] service in accordance with this chapter” requires

that an employee have been appointed “on the basis of merit 

and fitness, to be ascertained by competitive examinations.” 3 

V.I.C. § 521.

Here, the District Court found that neither Gerard nor

Iles had shown that they were appointed “on the basis of 

merit and fitness, . . . [as] ascertained by competitive 

examination.” (JA, at 11) (quoting 3 V.I.C. § 521). Nor is 

there anything in the record to suggest that Gerard or Iles was

ever appointed in accordance with Chapter 25 as is required 

to become a “regular” employee. Thus, although Gerard and 

Iles were “career service” employees, they were not “regular”

employees under the plain language of 3 V.I.C.§ 451.3

 3 Although, when interpreting identical statutory language in 

 
14

Gerard and Iles also contend, however, that a 2010 

amendment to § 530 applies in this case, and that the 

amendment removes the requirement that a “regular” 

employee have been appointed in accordance with the 

requirements of Chapter 25 of the Virgin Islands Code, 

including the competitive merit provisions. Whether the 

amended definition of a “regular” employee applies to Gerard 

and Iles depends on an analysis under Landgraf v. USI Film 

Prods., 511 U.S. 244 (1994), which sets forth the following 

two-part test for determining whether a statute enacted after 

the events of a suit nevertheless applies to that suit:

When a case implicates a federal statute 

enacted after the events in suit, the court’s first 

task is to determine whether Congress has 

expressly prescribed the statute’s proper reach. 

If Congress has done so, of course, there is no 

need to resort to judicial default rules. When, 

however, the statute contains no such express 

command, the court must determine whether the 

new statute would have retroactive effect, i.e., 

whether it would impair rights a party possessed 

when he acted, increase a party's liability for 

past conduct, or impose new duties with respect 

to transactions already completed. If the statute 

 

Richardson, we found that the plaintiff was a regular 

employee merely by virtue of having been employed for more 

than a year, the majority opinion in that case simply did not 

address the additional requirement of § 451 that the employee 

have been appointed in accordance with the requirements of 

the Personnel Merit System.
15

would operate retroactively, our traditional 

presumption teaches that it does not govern 

absent clear congressional intent favoring such 

a result.

Id. at 280.

At the first step, we determine that there is nothing in 

the language of the 2010 amendment that indicates that the

Virgin Islands Legislature “expressly prescribed” that its new 

definition of a “regular” employee should apply to cases 

pending at the time of its enactment. Because we discern no 

such express command, we next determine whether the 

amendment would have a “retroactive effect” if applied to 

Gerard and Iles. If it would have such a retroactive effect, 

then the traditional presumption directs that it would not 

govern Gerard and Iles’s claims, given the absence of clear 

congressional intent to the contrary. 

Landgraf teaches that a statute has “retroactive effect” 

when “it would impair rights a party possessed when he 

acted, increase a party’s liability for past conduct, or impose 

new duties with respect to transactions already completed.” 

Id. Here, applying the new definition of a “regular” 

employee to Gerard and Iles would both expand de Jongh’s 

liability for past conduct and impose new duties on de Jongh 

with respect to completed transactions by requiring him to 

reinstate Gerard and Iles, provide them with notice and a 

hearing, and make a showing of cause before terminating 

them. Moreover, applying the new definition of a “regular” 

employee to Gerard and Iles would conflict with 

“considerations of fair notice [to de Jongh]” and frustrate de 

Jongh’s “reasonable reliance [on the existing statute], and 
16

settled expectations . . .” that he was permitted to terminate 

Gerard and Iles without cause or a hearing. Id. at 270. All of 

these considerations “offer sound guidance” that the 

amendment, if applied to Gerard and Iles, would have a 

retroactive effect. Id. Because the Virgin Islands Legislature 

has not expressly stated that the amendment to § 530 should 

apply to suits arising before it was enacted, and because we 

find that that the amendment would have a “retroactive 

effect” under Landgraf, the traditional presumption that the 

amendment does not govern applies. Instead, we review the 

claims of Gerard and Iles under the definition of a “regular” 

employee that existed at the time their suit arose. 

Accordingly, because Gerard and Iles are not “regular” 

employees under that definition, as we previously explained, 

they lack a due process property interest in their employment.

E.

Although we vacate the preliminary injunction, we 

nevertheless find that, even had we affirmed the injunction,

the District Court’s award of back pay to Gerard and Iles 

would have been erroneous as a matter of law. The District 

Court concluded that under § 1983, Governor de Jongh could 

be sued in his official capacity for back pay. In reaching this 

conclusion, it relied on our previous statement that the 

remedy of reinstatement and the accompanying restoration of 

back pay generally constitutes a form of injunctive relief. 

Gurmankin v. Costanzo, 626 F.2d 1115, 1122 (3d Cir. 1980). 

It also relied on language in Will v. Michigan Dep’t of State 

Police, which provided that “a state official in his or her 

official capacity, when sued for injunctive relief, would be a 

person under § 1983 . . .” 491 U.S. 58, 71 & n.10 (1989). 
17

The District Court appears to have taken the language 

in Will to permit a public official to be sued in his official 

capacity under § 1983 for all injunctive relief, rather than 

merely for prospective injunctive relief. However, Will

makes clear that a state employee may be sued in his official 

capacity only for “prospective” injunctive relief, because 

“official-capacity actions for prospective relief are not treated

as actions against the State.” Id. at n.10. (quoting Kentucky v.

Graham, 473 U.S. 159, 167 n.14 (1985); Ex parte Young, 209 

U.S. 123, 159-60 (1908)). We have previously upheld this 

key distinction, affirming the dismissal of § 1983 claims for 

past wages even when presented as claims for “injunctive 

relief,” because those claims were retrospective rather than 

prospective. See, e.g., McCauley v. Univ. of the Virgin 

Islands, 618 F.3d 232, 240-41 (3d Cir. 2010) (holding that,

under § 1983, plaintiffs “cannot seek money damages” but 

can “seek prospective injunctive relief” against University of 

the Virgin Islands personnel in their official capacities); Brow 

v. Farrelly, 994 F.2d 1027, 1037 & n.12 (3d Cir. 1993) 

(upholding dismissal of claim for “injunctive” relief, 

including past wages and benefits, because it “was essentially 

a claim for retrospective damages . . . and thus not actionable 

against territorial officials in their official capacities under 42 

U.S.C. § 1983”).

Accordingly, the District Court’s award of back pay, 

although injunctive in nature, is impermissible retrospective 

relief and would be reversed even had we affirmed the 

preliminary injunction. 

III.

For the foregoing reasons, we reverse the decision of 
18

the District Court, vacate the preliminary injunction, and 

remand for further proceedings not inconsistent with this 

opinion.