2003 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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

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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 

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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. 

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 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 
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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. 

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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 politicallymotivated. 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 policymaking 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 policymaking 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 

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