IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
MARSHA JAGRUP
CIVIL CASE NO SX 15 CV 548
Plaintiff
v ACTION FOR DAMAGES
V I BOARD OF NURSE LICENSURE 2021 VI Super 29
Defendant
Trudy Fenster, Esq
LAW OFFICE OF TRUDY FENSTER P C
St Croix, U S V I
Attorneyfor Plamtzfl
Venetia H Velazquez, Esq , AAG
DEPARTMENT OF JUSTICE
St Croix, U S V I
Attorneyfor Defendant
BRADY, Douglas A Judge
MEMORANDUM OPINION and ORDER
1| 1 Before the Court is Defendant VI Board of Nurse Licensure’s (“VIBNL”) Motion to
Dismiss, filed November 20, 2020, fully briefed Defendant asserts that the present action must be
dismissed for lack of subject matterjurisdiction and for Plaintiff’s failure to state a claim for which
relief is available, pursuant to V I R Civ P l2(b)(l) and 12(c), respectively For the reasons set
forth herein, the Court will deny Defendant’s Motion
BACKGROUND
1| 2 On September 25, 2015, the Governor Juan F Luis Hospital (“JFL”) received a complaint
alleging that on June 12, 2015, its employee, Plaintiff Marsha Jagrup, had a patient sign over his
assets to her prior to succumbing to his illness in violation of JFL’s code of conduct ' Plaintiff
Nurse Jagrup was placed on administrative leave June 16, 2015 An investigation hearing was
convened July 7 2015 followed by subsequent hearings on July 28 2015 and August 17, 2015
at which Nurse Jagrup was represented by counsel Plaintiffwas immediately terminated following
' Pl ’5 Opp to M0 to Dismiss, Ex 5
Marsha Jagrup v VI Board ofNurse Ltcensure, SX 15 CV 548
Memorandum Opinion and Order
Page 2 of 9 2021 VI Super 29
the August 17, 2015 hearing 2 On September 25, 2015, JFL submitted a written complaint to
VIBNL describing the incident and Jagrup’s termination 3 On October 1, 2015, through its Interim
Executive Director, VIBNL sent a letter to Plaintiff notifying her of its receipt of JFL’s complaint
and the initiation of an investigation by the Board’s Disciplinary Committee 4 The letter instructed
Plaintiff not to seek employment as a registered nurse anywhere in the territory until a formal
disciplinary judgment was rendered 5
1| 3 Plaintiff initiated this action by Complaint filed November 12, 2015, seeking emergency
injunctive relief to enjoin VIBNL from suspending her license, as well as compensatory and
consequential damages The Complaint alleges that VIBNL’s letter, received October 6, 2015,
acted as an immediate suspension of her nursing license 6
1l 4 Plaintiff claims that she sought renewal of her nursing license prior to its scheduled
December 2015 expiration,7 and followed up by calling VIBNL in 2018 to inquire about the status
of her license renewal Defendant’s representative informed Jagrup in 2018 that it did not have
any renewal application for her on file, that she would need to reapply; and that VIBNL had lost
many documents in 2017 from Hurricane Irma 8
1| 5 Plaintiffclaims that as recently as January 14 2021 VIBNL informed her that the Attorney
General’s Office must give clearance before it can entertain any renewal application for her
suspended nursing license 9 Plaintiff asserts that, to date, Defendant has not held a formal hearing
or provided her with its determination or a report of its findings concerning the complaint filed
2 Id
3 Id
4 Pl ’5 Opp to M0 to Dismiss, Ex 4
5 Id
6 Complaint 1“] 31 32 The Court takes judicial notice of the records of the Superior Court that reflect that
Plaintiff also filed two additional actions arising from her termination Marsha Jagrup v Juan F Luzs
Hospital (SX 20l5 CV 00573) which remains pending and Marsha Jagrup v Benjamm Martmez (SX
2015 CV 00529) which was dismissed, pursuant to the parties’ settlement, by Order entered August 7
2020
7 Pl ’8 Opp to M0 to Dismiss, Ex 1 3
8Def ’s Mo to Dismiss, Ex C Interrog Resp 5
9 Pl 5 Opp to M0 to Dismiss, Ex 1, Jagrup Afi'ld 1] 20
Marsha Jagrup v V] Board ofNurse chensure, SX 15 CV S48
Memorandum Opinion and Order
Page 3 of 9
2021 VI Super 29
against her 1° Defendant maintains that it did not receive Plaintiff’s license renewal application
prior to the expiration of the license on December 31, 2015 as required by 27 V I C § 97(a) As
such, Jagrup’s licensure concluded on that date and, thereafter she had no license that VIBNL
could encumber or terminate ”
LEGAL STANDARD
1| 6 Subject matter jurisdiction defines the court’s authority to hear a given type of case Joseph
v Legislature of the Vzrgm Islands 2017 WL 7660718 at *2 (V I Super 2017) (citations
omitted) Virgin Islands Rule ofCivil Procedure 12(b)(l) and (h)(3) provide that a party may move
for a dismissal on the basis that the trial court lacks subject matter jurisdiction, and that if the trial
court at any time determines that it lacks subject matter jurisdiction, the action must be dismissed
Such dismissal should be without prejudice because a determination that subject matterjurisdiction
is lackmg does not constitute a decision on the ments of the case Id
1] 7 All motions to dismiss based on Rule 12(b)(1) are not the same The applicable standard
of review under Rule 12(b)(1) differs depending on whether the moving party has made a “facial
attack” or a “factual attack” on the court’s power to hear the case Id Similar to a Rule 12(b)(6)
motion, a facial attack argument considers a complaint on its face, with all facts taken as true, as
insufficient to invoke subject matter jurisdiction based on a jurisdictional defect Alternatively, a
factual attack disputes the existence of jurisdictional facts as sufficient to confer subject matter
jurisdiction Thus, in determining which standard applies, the Court looks at the specific challenge
raised by the movant Id
1] 8 Here, Defendant asserts that the Court does not have subject matter jurisdiction as the
matter before it is moot and thus, not justiciable ‘2 Defendant contests the truth of Plaintiff” s factual
allegations and introduces evidence that controverts Plaintiff’s claims '3 These assertions
constitute factual attacks as they concern the Court’s “actual ability to hear the case based on facts,
or the lack thereof, as developed in the record ” Vzrgzn Islands Tel Corp v lels, 2018 WL
1° Id 1| 13
” Def’s Reply at 6 7
'2 Def ’3 Mot to Dismiss at 8
'3 Id at 6
Marsha Jagrup v V! Board ofNurse Licensure; SX 15 CV 548
Memorandum Opinion and Order
Page 4 of 9
2021 VI Super 29
3120823, at *1 (V I Super 2018) (citation and internal quotation omitted) Accordingly, the Court
may “weigh the evidence and satisfy itself as to the existence of its power to hear the case ” Id
11 9 Pursuant to V I R Civ P 12(c), a party may move for judgment on the pleadings after the
pleadings are closed, but early enough not to delay trial The Court views the facts alleged in the
pleadings and the inferences to be drawn from those facts in the light most favorable to the plaintiff
Umted Corp v Hamed
64 VI 297 305 (V I 2016) (citing Benjamin v AIG Ins Co ofPR 56
V1 558, 566 (V I 2012) (internal quotation marks omitted) A motion for judgment on the
pleadings should not be granted unless the moving patty has established that there is no material
issue of fact to be resolved, and that it is entitled to judgment in its favor as a matter of law Id In
determining whether it is proper to grant a motion for judgment on the pleadings, the Court may
not consider evidence from any source outside the pleadings and the exhibits attached to or relied
upon in the pleadings Id The “incorporation by reference” doctrine permits the Court to also
consider matters that are integral to, or referenced in, the Plaintiffs claim (though not attached
thereto), the authenticity of which have not been challenged, without the need to convert the
motion as one for summary judgment pursuant to Rule 12(d) Hess 011 Virgin Islands Corp v
Dame]
2020 VI Super 50 1] 24 72 V I 676 698 (V I Super 2020) (citations omitted)
DISCUSSION
Subject Matter Jurisdiction
1] 10 Defendant contends that the Court lacks subject matter jurisdiction as presently there is no
case or controversy before it and the issue is moot '4 “The entire premise of Plaintiffs Complaint
is that judicial intervention is necessary to prevent her license from being unduly encumbered by
the Defendant Given the fact that Plaintiff allowed her license to lapse shortly after filing this
lawsuit, and is not now a licensed nurse in this jurisdiction, the issue has become moot and there
is no case or controversy to be resolved ”'5
1| 11 The doctrine of standing to initiate an action in the federal courts has two aspects a
“prudential” or claims processing aspect reflecting the need of all courts to control the presentation
" Def ’5 Mot to Dismiss at 8
'5 Def ’5 Mot to Dismiss at 12 13
I Marsha Jagrup v VI Board ofNurse Licensure; SX 15 CV 548
Memorandum Opinion and Order
Page 5 of 9 2021 VI Super 29
ofclaims in the litigation to assure full and fair exploration ofthe issues raised; and a constitutional
component based on the Article III case and controversy requirement of the U S Constitution,
which restricts the scope of federal court jurisdiction Our Supreme Court has held that standing
is a non jurisdictional claims processing rule in Virgin Islands courts, since Article III of the
Constitution does not apply to local courts and no provision of the Revised Organic Act or other
Virgin Islands law includes a case or controversy requirement See Fenster v DeChabert, 65 V I
20 41-42 (V I Super 2016) (citing Benjamin v A10 56 V I at 564)
1} 12 Like standing, the mootness doctrine in the Virgin Islands is a non jurisdictional claims
processing rule that has been incorporated into Virgin Islands law only as a matter of judicial
policy Mapp v Fawkes
61 VI 521 530 (VI 2014) (citing Benjamin v .410 56 VI at 564
Vazquez v Vazquez, 54 V I 485, 489 n 1 (V I 2010)) The central question in a mootness problem
is whether a change in the circumstances that prevailed at the beginning of litigation has forestalled
the prospect for meaningful relief Virgin Islands Taxi Ass’n v Virgin Islands Port Auth , 67 V I
643 663 (V I 2017) (quoting Zoning Bd ofAdjustment ofGarfield Cnty v De Vzlbtss
729 P 2d
353, 356 (Colo 1986)) A motion becomes moot when something occurs after a motion is filed
that resolves the issues raised in that motion Id Consequently, the expiration of Plaintiff’s license
shortly after she initiated this litigation represents a change in the prevailing circumstances at the
beginning of the litigation, forestalling the Court from granting Plaintiffs request for injunctive
relief and rendering moot Plaintiff's request for a preliminary and permanent injunction
1| 13 However, injunctive relief is but one form of relief that Plaintiff seeks by her Complaint
Plaintiff also prays for compensatory and consequential damages, attomey’s fees, and any other
reliefto which she may be deemed entitled These requests for relief are not moot Plaintiff claims
that Defendant suspended her nursing license indefinitely, and Defendant maintains that Plaintiff’s
license has merely expired Uncontested is Defendant’s noncompliance with 27 V I C § 100 which
gives rise to a genuine controversy as to whether Plaintiff’s rights to due process were violated
resulting in damages to her '6
'6 “The Board may deny, revoke or suspend any license to practice nursing issued by the Board or applied
for in accordance with the provisions of this subchapter, upon proof that the person (6) is guilty of
violating the nursing profession Code of Ethics ” 27 V I C § 100(8) (emphasis added)
Marsha Jagrup v VJ Board ofNurse chensure, SX 15 CV 548
Memorandum Opinion and Order
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2021 VI Super 29
Upon the filing of a sworn complaint with [VIBNL] charging a person with having
been guilty of any action specified in subsection (a) of this section as grounds for
disciplinary action, [VIBNL] shall appoint members to investigate the charge,
together with a notice of the hearing, to be served on the accused at least 20 days
prior thereto The accused shall have the right to appear personally or by counsel
or both, to procure witnesses, and to offer evidence on his or her behalf A complete
stenographic record of all hearings shall be kept and made available in the case of
appeals Appeals from decisions ofthe Board may be made to a competent court of
law
27 V [C §100(b)
1] 14 Plaintiff asserts that she has a property interest in her nursing license of which she was
deprived without due process of law '7 By its October 1, 2015 letter, Defendant advised Plaintiff
that the complaint against her would be “thoroughly investigated by the Board’s Disciplinary
Committee” and would result in a formal disciplinary judgment '8 The letter promised that Jagrup
would “be notified of the status of this case as the process continues and decisions are made based
on the findings ”‘9 Jagrup was instructed not to seek employment as a registered nurse anywhere
in the territory while the investigation progressed 2°
1] 15 After JFL filed its sworn complaint with VIBNL on September 25 2015 the Board was
required to investigate the issue and hold a hearing as its October 1, 2015 letter promised and the
statute required Plaintiff was never advised of her right to appear at a hearing, to hear the charge
against her or to offer evidence on her own behalf VIBNL apparently now asserts that by biding
its time and doing nothing to comply with the statute’s disciplinary complaint procedures, its
statutory obligations ended December 31, 2015 when Jagrup’s license lapsed, rendering Plainitff’s
claim moot Yet, the expiration of the license is immaterial to the question whether Defendant
failed to comply with the statutory processes to adjudicate the claim against Plaintiff resulting in
damages to her
11 16 Plaintiff claims to have attempted to renew her license before its December 31, 2015,
expiration by submitting an application for renewal She supports this claim with a V I Bureau of
'7 Complaint 1| 38
'8 Pl ’3 Opp to M0 to Dismiss, Ex 4
191d
20 Id
Marsha Jagrup v VI Board ofNurse Licensure, SX 15 CV 548
Memorandum Opinion and Order
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Intemal Revenue (“BIR”) September 16, 2015 letter for submission “To Your Licensing
Authority ” The BIR letter was sent “in response to your application of 8/12/2015 for a new or
renewal of a license” and “is for license purposes only ”2' Jagrup has presented no application for
license renewal and confirms that VIBNL told her in 2018 that it had no renewal application for
her on file, noting that its “building was destroyed in 2017 from Hurricane Irma and they lost a lot
of documents” and that she would have to submit a new application 22 A question of fact exists as
to whether Plaintiff did seek renewal of her licensure before its expiration, an event that would
have required VIBNL to complete the disciplinary proceedings concerning the license “applied
for pursuant to the language of 27 V I C § 100(a)
1[ 17 Plaintiffclaims that Defendant VIBNL failed in its obligation to ascertain whether she was
guilty of any violation of the Code of Ethics of the nursing profession As a result of VIBNL’s
reporting to the National Nursing Database of the pending charges it failed to adjudicate, Plaintiff
claims that she is unable to gain employment from by any healthcare facility in the country The
License Verification Report relating to Plaintiff, dated January 11, 2019, advises of disciplinary
action in the Virgin Islands with effective dates “10/01/2015 indefinite/unspecified” with the
basis for the action noted as “exploiting a patient for financial gain ”23
1| 18 Defendant asserts that it did not suspend Plaintiff’s license and because of the expiration
of the license, Plaintiff had no property right that Defendant could encumber However, Plaintiff
claims that it was Defendant’s inaction in meeting its obligation to investigate and adjudicate the
complaint against her that has kept in limbo her privilege to practice her profession Defendant
does not claim to have investigated or held hearings on the complaint, arguing that the December
31, 2015 expiration ofthe license relieved it of any statutory requirement to resolve the claim, and
that the license expiration has rendered the matter moot Defendant barred Plaintiff from seeking
employment until the resolution of its disciplinary proceedings, then neglected to provide her with
an oppoxtunity to be heard and to contest the complaint against her Because VIBNL did not
2' Pl ’s Opp to M0 to Dismiss, Ex 2
22 Def ’5 Mot to Dismiss Ex C, P] Interrog Resp No S
’3 Pl’s Opp to M0 to Dismiss, Ex 6
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II
3/09/2021