filed: January 14, 1993; As Corrected February 12, 1993.
On Appeal From the District Court of the Virgin Islands. D.C. Civ. No. 91-00269.
Before: Becker, Cowen and Roth, Circuit Judges.
This appeal presents the question of which agency -- the Virgin Islands Port Authority ("VIPA") or the Virgin Islands Government Employees Service Commission ("GESC") -- possesses jurisdiction to determine the validity of the discharge from employment of a permanent VIPA employee. VIPA appeals from an order of the District Court of the Virgin Islands which affirmed the decision of the GESC ordering reinstatement of Patricia Fitch. VIPA's principal argument is that the GESC lacked jurisdiction because VIPA is an autonomous governmental entity and Fitch's dismissal by the governing board of VIPA is not subject to GESC review. We agree with the district court that jurisdiction lies with the GESC, hence we affirm.
In September 1979, Fitch was hired by VIPA for the position of "port attorney." After completing a six month probationary period required of all VIPA employees, Fitch was given "permanent" status as a career employee. In March 1988, Fitch was assigned a new title of Director of Property Management and Legal Affairs, which resulted in her acquiring additional responsibilities but no salary increase. At that time, there was no indication that Fitch's new title would change her status as a permanent career employee.
On April 10, 1991, VIPA's new governing board demanded that all directors of VIPA submit their resignations. Fitch refused to resign. On April 19, 1991, Fitch was served with a letter terminating her employment, effective immediately, and alleging three causes for her discharge: (1) failure to resign when so directed; (2) statements that she made to the press concerning her refusal to resign; and (3) inadequate performance as Director of Property Management and "problems" with accounts receivable.
On April 29, 1991, Fitch filed a notice of appeal with the GESC requesting a hearing on the charges, reinstatement, back pay, and costs and attorneys' fees. A final hearing on the merits was then held before the GESC. On July 12, 1991, the GESC reversed Fitch's dismissal and ordered that the termination be reduced to a 10-day suspension without pay, and that after the suspension Fitch be reinstated.
VIPA filed a petition for writ of review with the District Court of the Virgin Islands. The district court filed a memorandum and order affirming the decision of the GESC. This appeal followed.
The question of which agency possesses jurisdiction is a matter of construction of the relevant statutory scheme. In order to understand that scheme, we look first to the earlier case law in the area because that case law (on which VIPA relies) spawned the statutory changes that control the outcome of the case.
VIPA relies largely on the unpublished order of the District Court of the Virgin Islands in GESC v. George, No. 85-264 (D.V.I. Mar. 22, 1988), wherein the court held that the GESC did not have jurisdiction over the Virgin Islands Water and Power Authority ("WAPA") or any other autonomous government instrumentality (presumably including VIPA). With little Discussion, the court relied on its earlier opinion in Shulterbrandt v. GESC, (D.V.I. Apr. 3, 1979) in which it had declared void a statutory amendment that gave employees of WAPA a right to appeal to the GESC because, in the court's view, the amendment violated WAPA's enabling statute, which created WAPA as an autonomous instrumentality separate from the Government of the Virgin Islands.
In 1980, however, after Shulterbrandt was decided, the legislature (presumably in response to that decision) amended the enabling statutes of both WAPA and VIPA. The VIPA enabling statute now ...