Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John, D.C. Civ. No. 84-72.
Seitz, Sloviter, and Becker, Circuit Judges. Becker, Circuit Judge, dissenting.
Defendant Government of the Virgin Islands ("Government") appeals the final judgment of the district court in favor of plaintiff Atchley Richardson. This court has jurisdiction under 28 U.S.C. § 1291 (1982).
The following facts are undisputed. In August 1980, Richardson was hired as a member of the Virgin Islands Police Auxiliary ("Auxiliary"). The Auxiliary, known until 1978 as the Home Guard, is part of the Department of Public Safety ("Department") and is under the command of the Commissioner of Public Safety ("Commissioner").*fn1
The duties of members of the Auxiliary are set forth in general terms at V.I. Code Ann. tit. 23, § 1157 (Supp. 1987), which states that "members of the Police Auxiliary shall cooperate with the police force at all times and shall perform such other duties as may be prescribed by the Governor. During times of emergency, proclaimed by the Governor, they shall be vested with full police authority." The duties of Auxiliary members are described in somewhat more detail in regulations issued by the Commissioner in 1980 under the authority of V.I. Code Ann. tit. 23, § 1153 (Supp. 1987). Those regulations indicate that members perform such functions as controlling crowds, directing traffic, and issuing traffic citations. V.I. R. & Regs. tit. 23, § 1153-4 (1982). In addition, members patrol in pairs with police officers and generally assist police officers in their law enforcement duties. Id.
Before joining the Auxiliary, Richardson was required to pass a physical examination and complete a training course. Id. § 1153-3. While on duty, he wore a uniform similar to that worn by regular police officers, id. § 1153-6, and carried a firearm.
In 1981 Richardson applied to the Department for a position on the regular police force. As part of the application process, he was required to submit to psychological testing. The results of Richardson's psychological tests came to the attention of the Commissioner, Otis L. Felix. On the basis of those results, Felix determined that Richardson was unsuited to continued service in the Auxiliary. By letter dated May 11, 1982, Felix in effect demanded that Richardson resign from the Auxiliary or face termination.*fn2 Richardson chose to resign.
In March 1984, Richardson commenced this action under 42 U.S.C. § 1983 (1982), against Felix and the Government. Richardson claimed that his forced resignation without prior notice or hearing violated his due process rights. He also asserted that the Department violated his right to equal protection by terminating him on the basis of his performance on the psychological tests when other Auxiliary members were not required to take or pass such tests.
The case was tried to the court. In its memorandum opinion, the court assumed that Richardson's resignation amounted to a termination by the Department. The court held that the Government had denied Richardson due process by terminating him without first giving him notice and an opportunity to be heard. The court found no liability on Felix's part. It did not address Richardson's equal protection claim. The Government was ordered to reinstate Richardson to his position on the Auxiliary and to remit back pay. This appeal by the Government followed. Richardson does not cross-appeal the court's disposition of his claims against Felix.
To the extent that the judgment of the district court rests upon conclusions of law, our review is plenary. We shall not set aside the court's findings of fact unless they are clearly erroneous. Fed. R. Civ. P. 52(a).
One who has been dismissed from public employment must make two showings to establish that the dismissal violated due process: (1) that the dismissal deprived him of a property or liberty interest, and (2) that the employer did not afford him adequate procedural protections in connection with the action. Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 108 S. Ct. 1780, 1787, 100 L. Ed. 2d 265 (1988); Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 538-41, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). In the absence of circumstances requiring his prompt removal, an employee with a protected interest in his employment may be terminated only after receiving notice of the charges against him and an opportunity for a hearing sufficient to respond to those charges. Id. at 542-48.
The issue in this case is a narrow one. The Government does not now dispute that Richardson's resignation amounted to a dismissal by the Department. In addition, it is undisputed that Richardson was not given any notice or chance for a hearing before his termination became a fait accompli, and the Government does not point to any circumstances that made such pre-termination notice and hearing impractical. Thus, Richardson prevails on his due process claim if he can establish that his dismissal deprived him of a protected ...