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Anderson v. Davila

September 10, 1997

PETER ANDERSON

v.

RAMON DAVILA; KENNETH MAPP; ROBERT SOTO; ELTON LEWIS; GOVERNMENT OF THE VIRGIN ISLANDS, D/B/A VIRGIN ISLANDS POLICE DEPARTMENT, APPELLANTS



On Appeal from the District Court of the Virgin Islands

Division of St. Croix (D.C. Civil Action No. 96-cv-00118)

Before: BECKER, ROTH and WEIS, Circuit Judges

ROTH, Circuit Judge

Filed September 10, 1997

Argued April 8, 1997

OPINION OF THE COURT

This case results from the Virgin Islands Police Department's surveillance of Peter Anderson and his attorney, Lee Rohn, in retaliation for Anderson'sfiling of an employment discrimination suit against the Department, his former employer. At issue is the district court's permanent injunction forbidding the Police Department from further surveillance of Anderson and Rohn without the court's prior approval.

Peter Anderson, a former police officer in the Virgin Islands Police Department, filed a lawsuit against the Government of the Virgin Islands and its officers on the ground that he suffered employment discrimination. On the day after a local newspaper reported that Anderson was filing a lawsuit against his former employer, the Virgin Islands Police Department commenced an intensive investigation of both Anderson and attorney Rohn.

Andersen sought a preliminary injunction from the district court, claiming that such surveillance infringed his First Amendment rights. The district court consolidated the motion for preliminary relief with a trial on the merits and issued a permanent injunction terminating all surveillance of Anderson and Rohn. The injunction further required the Police Department to seek the district court's approval, should the Department wish to renew surveillance of either Anderson or Rohn.

The Government appeals the district court's injunction on several grounds. First, it contends that the district court improperly consolidated Anderson's motion for preliminary relief with a hearing on the merits, thus violating the notice requirements under Rule 65 of the Federal Rules of Civil Procedure. Second, the Government claims that the injunction was improperly granted because Anderson failed to demonstrate either a likelihood that he would prevail on the merits or that the government's surveillance threatened irreparable harm. Finally, the Government contends that the district court's injunction is overbroad and interferes with the police department's legitimate investigative operations.

We shall address each of these arguments in turn.

I. Facts

Prior to the filing of this lawsuit, Peter Anderson had worked for the Virgin Islands Police Department ("Department") and had attained the rank of captain in the Department. In January of 1995, the newly elected Governor and Lieutenant Governor of the Virgin Islands placed Ramon Davila in the position of Police Commissioner of the Virgin Islands. *fn1 Anderson alleges that Davila disliked and harassed him because of his race and place of birth. (Anderson is white and was born in the continental United States). After Davila became Police Commissioner, he allegedly directed a steady stream of threats at Anderson to the effect that he would make Anderson's work environment uncomfortable. In addition, Davila allegedly made false accusations about Anderson, limited his work assignments, interfered with his promotions, and cast racial slurs on him.

On January 22, 1996, while Anderson was still employed by the Police Department, he lodged a complaint with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination by the Virgin Islands Police Department. *fn2 At his hearing for injunctive relief, Anderson testified that he was subjected to transfers and demotions in retaliation for filing his complaint with the EEOC. On January 23, 1996, Anderson's attorney, Lee Rohn, sent a formal notice to the Governor of the Virgin Islands, communicating Anderson's intention to file suit against the Government and the Department for employment discrimination. Anderson resigned from the Virgin Islands Police Department on January 31, 1996.

On February 22, 1996, a St. Croix newspaper reported that Anderson had lodged a complaint with the EEOC and planned to file suit against the Government of the Virgin Islands for employment discrimination. *fn3 The front-page newspaper article identified Lee Rohn as Anderson's attorney and reported that Rohn planned to file a civil lawsuit on Anderson's behalf in April 1996. The article also quoted Anderson several times, including his belief that a "pattern of discrimination" had been directed at him by Commissioner Davila, that the color of his skin had hurt him "both professionally and personally" within the police department, and that he was the subject of "incredible malicious slander and maltreatment."

Within a few days of the publication of this article, the Police Department commenced an extensive investigation of Anderson and Rohn. This investigation included visual surveillance of Anderson talking to his attorney, as well as photographs of both Anderson's home and Rohn's Jeep. In addition, on February 23, 1996, one day after the publication of the article in the St. Croix Avis, Robert Soto, the Assistant Director of the National Strike Force ("NSF") of the Virgin Islands ordered a National Crime Information Computer ("NCIC") check of Rohn.

Anderson learned of the Police Department's surveillance operation from an anonymous source who placed Department photographs on the front seat of Anderson's car. The EEOC had issued Anderson a right to sue letter on July 26, 1996. On September 6, Anderson filed suit against the Department, the Government of the Virgin Islands, Ramon Davila and several other officials. After receiving the anonymous evidence of the Police Department's investigation, Anderson amended his complaint to include allegations of unconstitutional and retaliatory surveillance by the Department. In addition, on September 19, Anderson filed a motion for a temporary retraining order and a preliminary injunction. *fn4

On October 2 and 3, the district court held an evidentiary hearing on Anderson's motion for preliminary relief. At this hearing, Anderson requested an order enjoining the Department from further surveillance of either him or his attorney and also asked for an order prohibiting the Department from retaliating against officers or agents testifying on his behalf at the hearing.

Throughout the hearing, the Police Department asserted that its investigation was not carried out in response to Anderson's employment discrimination complaint. Instead, the Department maintained that it had no intention of investigating Anderson at all. Rather, the real target of their surveillance operation was Anderson's attorney, Lee Rohn, whose boyfriend had been sighted several months earlier, in December 1995, by the Virgin Islands National Strike Force (NSF) driving her Jeep through a known drug-dealing area. According to the Department, Rohn's boyfriend, Curtis Jacobs, had been implicated in illegal drug-dealing activity, and his use of her Jeep justified the Police Department's surveillance of its owner. The Police further explained that the photographs of Anderson were inadvertently taken by officers who mistook Anderson's home for Rohn's.

The Police Department presented little evidence to support its theory. For example, the Department was unable to demonstrate that it had investigated Lee Rohn or her Jeep in the months immediately following the Department's sighting of Curtis Jacobs. Moreover, there was testimony that the NSF 's Assistant Director, Robert Soto, was pleased with the Department's surveillance operation and had remarked "this is great" when he learned about the photographs of Anderson and Rohn.

The district court concluded at the end of its hearing that Anderson was entitled to injunctive relief. Not satisfied with the Department's justification for its surveillance, the district court concluded that "the defendants . .. engaged in surveillance of Peter Anderson and Lee Rohn as a direct result of the lawsuit Mr. Anderson filed." Anderson v. Government of the Virgin Islands, No. 1996-118 (D.V.I. Oct. 16, 1996) at 8. The district court further elaborated:

[T]he initial efforts to determine the ownership of the red Jeep and Mr. Jacob's connection to it were properly based upon reasonable suspicion arising from information received in an ongoing criminal investigation of drug activity. By late February 1996, however, what may have started as a proper investigation was converted and perverted into an effort to "dig up dirt" on Rohn and her client in response to the lawsuit. It is simply too large a coincidence that the NCIC check performed on Lee J. Rohn was requested on February 23, 1996, the day after the story about the filing of Anderson's lawsuit against the defendants appeared in the newspaper. It also defies logic that the photos of Peter Anderson's house were taken "by mistake," as the defendants would have us believe.

Anderson, No. 1996-118 at 13 (emphasis provided). Having concluded that the Police Department's surveillance operation was improper and had been initiated in response to Anderson's lawsuit, the District Court ordered the Police Department, "TO CEASE ALL SURVEILLANCE EFFORTS AGAINST PETER ANDERSON AND LEE J. ROHN unless and until they seek and obtain approval from this Court, based upon an appropriate showing that reasonable suspicion or probable cause exists for such investigation."

Anderson, No. 1996-118, order at 2. Prior to issuing its order, the court noted that it considered the hearing to be a trial on the merits and that the injunction was therefore permanent.

The present appeal followed. While the appeal was pending, the Government requested a stay of the district court's permanent injunction. On November 27, 1996, the district court denied the Government's request. In doing so, the court opined that a stay pending appeal was unnecessary because its injunction was not appealable. The court further held that its notice regarding the hearing was adequate and that the Government was unlikely to prevail on the merits. See Anderson v. Government of the Virgin Islands, 947 F.Supp. 894 (D.V.I. 1996).

II. Jurisdiction

Before we reach the merits of the Government's appeal, we must first decide whether we have jurisdiction to review the district court's injunction. The Government contends that we may review the district court's injunction pursuant to 28 U.S.C. Section(s) 1292, which provides jurisdiction over appeals from:

(1) Interlocutory orders of the district courts of the United States . . . and the District Court of the Virgin Islands . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions except where a direct review may be had in the Supreme Court. . . .

28 U.S.C. Section(s) 1292(a)(1). Anderson disagrees and argues that the District Court's injunction does not fall within Section 1292's jurisdictional grant because its subject matter (the propriety of the Department's surveillance operation) differs from the crux of Anderson's employment discrimination claim.

Anderson brought a motion for preliminary relief under Rule 65(a) of the Federal Rules of Civil Procedure and the District Court expressly ruled on and granted that motion. Ordinarily, our analysis should end here. "When a claimant makes a Fed.R.Civ.P. 65(a) motion for a preliminary injunction, and the court expressly rules on it, there is no difficulty in identifying the order as falling within Section 1292(a)(1). Such explicit orders must fall within the plain language of the section." Cohen v. Board of Trustees of the University of Medicine and Dentistry of New Jersey, 867 F.2d 1455, 1466 (3d Cir. 1989). Anderson nevertheless contends that his motion for relief differed from a "routine" Rule 65 motion because the relief requested in that motion (the cessation of surveillance) was only "incidental" to his employment discrimination claim. Anderson supports his argument with the district court's prediction that its order is not appealable because its relief is "incidental and unrelated to the underlying merits of the employment discrimination complaint." Anderson, No. 1996-118, at 44. See also Anderson, 947 F.Supp. at 900. The district court, however, does not have the last word on this matter. Cf. Bailey v. Systems Innovation, Inc., 852 F.2d 93, 96 (3d Cir. 1988) (district court's characterization of order not dispositive).

To be appealable under Section 1292, an order need not grant all of the relief requested in a complaint. Rather, an order is treated as "injunctive" within the meaning of Section 1292(a)(1) when it adjudicates even some of the relief sought in the complaint. "If the order grants part of the relief requested by the claimant, the label put on an order by the district court does not prevent the appellate tribunal from treating it as an injunction for purposes of section 1292(a)(1)." Cohen, 867 F.2d at 1466 (emphasis provided). Thus, the district court's view of its own order is irrelevant. In addition, the relief granted by the district court need not encompass the entire (or even the most "important" part of) the complaint. So long as the order touches the merits of part of the complaint, it will fall within Section 1292's grasp, assuming it is also ...


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