NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-2776

_____________

GERSHWAIN SPRAUVE,

Appellant

v.

THE WEST INDIAN COMPANY LIMITED; JOSEPH BOSCHULTE, in his Personal 

Capacity and as President and Chief Executive Officer of the West Indian Company 

Limited; BOARD OF DIRECTORS OF THE WEST INDIAN COMPANY LIMITED

_____________

No. 17-2777

_____________

ANDREA V. SMITH,

Appellant

v.

THE WEST INDIAN COMPANY LIMITED; JOSEPH BOSCHULTE, in his Personal 

Capacity and as President and Chief Executive Officer of the West Indian Company 

Limited; BOARD OF DIRECTORS OF THE WEST INDIAN COMPANY LIMITED

_____________

On Appeal from the District Court 

of the Virgin Islands

(Nos. 3:13-cv-00008 & No. 3:13-cv-00030)

District Judge: Hon. Susan D. Wigenton

______________

Argued: December 13, 2018

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

(Filed: January 17, 2019)
2

Karin A. Bentz [ARGUED]

The Law Offices of Karin A. Bentz

5332 Raadets Gade, Suite 3

St. Thomas, VI 00801

Counsel for Appellants

Adriane J. Dudley

Carol A. Rich [ARGUED]

Dudley Rich

5194 Dronningens Gade, Suite 3

St. Thomas, VI 00802

Counsel for Appellees

__________________

OPINION*

__________________

CHAGARES, Circuit Judge. 

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

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

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

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

affirm. 

I.

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

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

 

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

does not constitute binding precedent.
3

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

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

instrumentality.” Id.

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

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

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

relationship between Sprauve and Boschulte quickly soured. Boschulte accused Sprauve 

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

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

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

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

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

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

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

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

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

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

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

fired Smith for “failure to execute.” Joint Appendix (“JA”) 750. 
4

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

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

alleged that their terminations violated their respective Fourteenth Amendment rights to 

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

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

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

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

JA 75; see also JA 36. 

Sprauve and Smith timely appealed.

II.

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

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

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

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

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

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

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

 

1 The District Court initially dismissed the suits, holding that the federal claims, 

premised on constitutional violations, failed because WICO and Boschulte were not state 

actors. Sprauve, 799 F.3d at 228–29. But we reversed, holding that “WICO must be 

considered a government entity for the purposes of Sprauve’s and Smith’s constitutional 

claims.” Id. at 227.

2

In both cases, the District Court declined to exercise supplemental jurisdiction 

over the claims arising under Virgin Islands law. 
5

III.

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

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

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

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

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

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

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

§ 530(a)(2)(C)(ii).

3

 

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

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

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

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

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

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

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

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

 

3 WICO and Boschulte contend that we should not consider this argument because 

Sprauve and Smith failed to raise it below. It is true, generally, “that a federal appellate 

court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 

106, 120 (1976). Here, though Sprauve and Smith did not raise their “regular 

employees” argument below, the District Court still discussed it. Because the argument 

was thus “passed upon below,” id. at 120, we will consider it. 
6

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

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

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

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

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

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

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

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

manner.

4

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

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

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

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

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

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

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

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

 

4 Sprauve and Smith insist that they were appointed to their positions because 

WICO had competitive hiring procedures. But WICO’s use of a competitive hiring 

process does not mean that its employees were “appointed.” As explained above, 

appointment involves filling a position based on a certified list provided by the Director 

of Personnel. See V.I. Code tit. 3, § 526. Exceptions to the appointments process exist, 

but Sprauve and Smith do not claim any apply here. See, e.g., id. § 529 (emergency 

appointments). 
7

Accordingly, Sprauve and Smith have not established that they are entitled to forcause protection. As they do not offer any other basis for reversal, we hold that the 

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

5

IV.

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

summary judgment. 

 

5 Our decision in Sprauve is not to the contrary. We held there “that WICO must 

be considered a government entity for the purposes of Sprauve’s and Smith’s 

constitutional claims.” 799 F.3d at 227. That does not mean that WICO’s employees are 

“regular employees” under § 530. Indeed, we emphasized that we were “only examining 

whether WICO is a government entity for the purpose of determining whether 

constitutional claims can be lodged directly against it.” Id. at 230 n.3.