BBA AS IIS



HE TERRITORIAL COURT OF ‘THE VIRGIN ISLANDS

DIVISION OF ST. _ THOMAS AND ST. JOERN



LISTON MONSANTO. and

MARIO- LIMA - a a



Plaintiffs CIVIL NO. 188/1982

ACTION FOR VIOLATION OF

LEGISLATIVE PROVISION,

SPECIFIC PERFORMANCE/

MANDATORY INJUNCTION,

DAMAGES, and

DECLARATORY JUDGMENT



“GOVERNMENT OF THE

VIRGIN ISLANDS



Defendant



er ee et eet et Net ne Smee eee Se et Set :



4; BRENDA J. HOLLAR, ESQUIRE



lt Post Office Box 8897

ods ' St. Thomas, Virgin Islands 00801

vas _ 1) =-Attorney for the Plaintiffs



': TERRYLN P. MEYERS, ESQUIRE

Assistant Attorney General



' Government of the Virgin Islands



' Department of Law



Post Office Box 280

St. Thomas, Virgin Islands 00801

~~Attorney for the Defendant



: MEYERS, J.



MEMORANDUM OPINION AND ORDER

(Filed (A&, 3/ , 1984)

/ /



I. INTRODUCTION



This Court is called upon to determine the following

issues: (1) whether the hiring of Mr. John J. Ferrant (Ferrant),



allegedly contrary to the guidelines set forth in the Personnel

Monsanto, et al v. Government

Civil No. 188/1982. 13+



|i Merit system, 3 V.I.C. §451, et seq., (System), gives rise to a

‘tort; (2) if so, whether the Plaintiffs should be permitted to



| file a late claim under the Virgin Islands Tort Claim Act,



| 33 v.1.c. §§3408, et seq., (1970), (Act); (3) whether Ferrant's

departure from the Government renders the Plaintiffs' underlying



| claim for declaratory and injunctive relief moot; and (4) whether

f the Government's employment of Ferrant by contract in the Virgin



1 Islands Bureau of Internal Revenue (Bureau) to the position of



: Chief of the Delinquent Accounts and Return (Chief of the D.A.R.),

: a classified position within the System, is valid. For the



i reasons set forth below, the Court holds (1) that the hiring of



| Ferrant, even if contrary to the guidelines set forth in the

System, does not give rise to an action in tort as contemplated by

the Act; (2) that there being no tort, Plaintiffs' motion to file

a late tort claim will be denied summarily; (3) that Ferrant's

departure from the Government service does not render the



' Plaintiffs' underlying claim for declaratory and injunctive relief

moot; and (4) that the Government's employment of Ferrant, by

contract, in the Bureau to the position of Chief of D.A.R., a



classified position within the System, is valid.



IIT. FACTS



On August 22, 1980, Act No. 4473, now codified as



33 V.I.C. §680 et seg., created the Bureau. The Plaintiffs,

Seenetatarencneres fe eee ee eee SESS: Run rte be St en ent ete CEES



| Monsanto, et al v. Government

Civil No, 188/1982 : ~3-



‘Liston Monsanto and Mario Lima, at the time of the filing of this



fz case, were “classified Revenue Officers within the Bureau. i/



ve "Sometime in April of 1981, the Government of the Virgin

Islands" (Government) , hired Ferrant, by contract, to fill the

vacancy of Chief of the D.A.R. The position of Chief of the

'-D.A.R. was and still is a classified position within the System.



;



The hiring of Ferrant by contract and the alleged non-compliance



with the procedures as outlined in the System gave rise to an



2/



administrative action.= Plaintiffs, aggrieved by the



| administrative decision of the Government Employees Service

\:

+ Commission (GESC), brought an action for a writ of review in the



District Court of the Virgin Islands against the GESC and the



i/ 3 V.1I.C. §45la (Supp. 1982) divides the classification of

personnel into two categories: career service and positions

exempted from career service. Those positions which are not

exempt automatically fall into the classified or career service

category, pursuant to 3 V.1I.C. §45la(c) (Supp. 1982).



2/ Under 3 V.I.C. §521-§526, the procedures require that all

appointments and promotions to positions in the classified service

be made on the basis of merit and fitness to be ascertained by

competitive examinations.



The entrance and promotion tests must be conducted by the

Director of Personnel who must thereafter compile a resulting list

not later than thirty days after the date the test was given. The

Director of Personnel must also give written: notice to the test



taker of his final earned rating and his relative standing on the

list.



Whenever a department head wishes to fill a vacancy in the

classified service, he must submit a statement to the Director of

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Whereupon the Plaintiffs, on March 2, 1982, instituted the instant

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ionsanto, et al v. Government

ivil No. 188/1982 ~-4-



Government. The District Court, in an order dated February 8,



1982, among other things, dismissed the Government, pursuant to



i Rule 12(b) (1), Federal Rules of Civil Procedure, as a party for



lack of subject Iatter jurisdiction because the action was before



it exclusively on a writ of review of the administrative decision



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|| of the GESC pursuant to 5 V.I.C. App. V R.11 and 5 V.I.C. §1422.



action against the Government seeking declaratory and injunctive



relief. On or about March 30, 1982, Ferrant left the Bureau.



_ Subsequently, on June 25, 1982, Plaintiffs filed a motion seeking



» leave of Court to file a late tort claim.



III. DISCUSSION



A. Alleged Tort



The Plaintiffs contend that the Government acted



contrary to the System when it hired Mr. Ferrant, by contract, to



2/



Footnote =" cont'd



Personnel showing the position to be filled and the duties of the

position. The Director of Personnel then certifies to the

appointing authority the names of three eligibles for the

position.



Upon receiving certification of eligibles, the appointing

authority, after consultation with the department head, shall

appoint one of the persons whose name was certified.

‘Civil No.”



onsanto, et al v. Government

188/1982 =5e



fill a classified position. Furthermore, they contend the System

does not afford Plaintiffs a remedy for the Government's wanton,

willful, and malicious violation of the System's statutory

provisions. Accordingly, Plaintiffs contend that their claim is

actionable as a tort pursuant to Restatement (Second) Torts §874A

which may be redressed through the Act.



, ‘Restatement (Second) Torts §874A states that:



[w]hen a legislative provision

protects a class of persons by

proscribing or reguiring certain

conduct but does not provide a



Civil remedy for the violation, the

court may if it determines that the

remedy is appropriate in furtherance

of the purpose of the legislation

and needed to assure the effective-

ness of the provision, accord to an

injured member of the class a right

of action, using a suitable existing

tort action or a new cause of action

analogous to an existing tort action.

(Emphasis added.)



A



The Government, on the other hand, contends that the

Act is not the mechanism through which a government employee

aggrieved by a violation of the System can obtain relief. The

Legislature of the Virgin Islands, it argues, did not "waive the



sovereign immunity of the territory from suit in employee



an ie Toh yen be ee ee ey pt ae 4 St te me npn tee oe age os, ee ae e dee we ee me ae,

Zens -. A GO LIL EAMES r wes? a SATS Ph Toe ee ee ee oe ow! a es aor per ee ee :



3 V.I.C. §531, the GESC is the vehicle through which the



Plaintiffs, aggrieved government employees, can have such

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onsanto, et al v. Government

‘Civil No. 188/1982 -6-



personnel matters reviewed, and the decision rendered there is

their exclusive remedy .2/

The Government's sovereign immunity was waived by



passage of the Tort Claims Act. However, the liability assumed



_was only with respect to "injury or loss of property or personal



injury or death caused by the negligent or wrongful act or



omission of an employee of the Government of the Virgin Islands



, while acting within the scope of his office or employment... ."



te

(

'



(Emphasis added.) Upon a showing that the cause of action falls



within the purview of the Act, the party must strictly adhere to



. the procedural requirements of the Act. V.I. Telephone Corp. v.



Government, 13 V.I. 405 (Terr. Ct. 1977). In the case at bar, the



Plaintiffs have failed to show that their claim falls within the

purview of the Act. The Plaintiffs do not allege an injury or

loss of property or personal injury or death as required in



33 V.I.C. §3408. “Instead, they allege a violation of a

legislative provision which expressly provides an appropriate

civil remedy to redress the harm complained of. Section 874A of



the Restatement of Torts, upon which the Plaintiffs rely, is



3/ While the Plaintiffs are required to exhaust their

administrative remedies, judicial review is available thereafter.

Hence, the Government's argument that the administrative remedy is

Plaintiffs' exclusive remedy is misplaced. See, Turnbull v.

Holder, 11 V.I. 93 (D.V.I. 1974); 5 V.I.C. §1421.

onsanto, et al v. Government

ivil No. 188/1982 — “a



‘triggered only when the legislative provision in question does not



‘provide a civil remedy. Such is not the case here. Accordingly,



| the Plaintiffs' motion for leave to file a late tort claim will be



| denied summarily since the Court has concluded that there has been



' no tort.



B. Mootness

On March 2, 1982, the Plaintiffs instituted the instant



action against the Government seeking, inter alia, to have the



Court declare the contract between Ferrant and the Government null



, and void ab initio and to have the Court grant various injunctive



relief. On or about March 30, 1982, Ferrant left the Government's



employ. The question which the Court raises sua sponte is whether



Ferrant's departure from the Government renders the Plaintiffs’



4/



claim for declaratory and injunctive relief moot.—’ The Court



concludes it does not.



. ae



The United States Supreme Court in County of L.A. v.



Davis, 440 U.S. 625 (1979) established a two-prong test to

determine when a case is moot. First, whether "it can be said



with assurance that there is no reasonable expectation that the



4/ Plaintiffs' prayer for declaratory and injunctive relief is



properly before the Court pursuant to 5 V.I.C. §§1261, 1262, and

1268 (1967) as the GESC is without statutory authority to grant



such relief.

alleged v violation will recur," and, second, whether "interim



relief or events have completely and irrevocably eradicated the



effects: of the alleged violation." Id. at 631. Accord, Garden



‘State | Bar Ass’ nv. “Middlesex County Ethics Comm., 651 F.2d 154 (3a



cir. 1961).



Applying the foregoing two-prong test to the facts of

this case, the Court finds that neither of the two conditions has

been met. The mere fact that Ferrant has left the Government's

employ "does not deprive the [Court] of the power to hear and



determine the case." United States v. W.T. Grant Co., 345 U.S.



629, 632 (1953). There still remains a controversy between the

parties with respect to the Government's authority to hire certain

personnel by way of contract rather than through the statutory



procedures outlined in the System (3 V.I.C. §§521, et seq). See,



Walling v. Helmerich & Payne, 323 U.S. 37, 42-43 (1944).

Accordingly, the doctrine of mootness is inapplicable to this



matter.



C. The Statutes



When first enacted on August 22, 1980, §681(c) of Act

No. 4473 contained the following language:



The Bureau shall have the power and it

shall be its duty to...employ personnel,

subject to laws applicable to the Virgin

Islands Personnel Merit System to assist

in carrying out its power and duties.

{| Monsanto, et al v. Government

|| Civil No, 188/1982 -9-



However, on September 26, 1980, a mere 35 days after the



“Legislature amended that section to its present codified language

in 33 V.I.C. §681(c), which states that

,



. The Bureau shall have the power and it

ee shall be its duty to...employ personnel,

1 : on contract or subject to laws applicable

to the Virgin islands Personnel Merit

System to assist in carrying out its

powers and duties. (Emphasis added.)



Plaintiffs' prayer in their complaint that the Court



declare the contract between Ferrant and the Government null and

i, void ab initio is grounded on the theory that the Government acted



« contrary to the System's provisions with respect to, inter alia,



competitive examinations. In light of the present language of

33 V.I.C. §681(c), this contention is without merit.

It is well-settled that, where two statutes contain

provisions with respect to the same subject matter, the latest of

. the two enactments is controlling to the extent that there is an



inconsistency ‘between them. Adkins v. Arnold, 235 U.S. 417



(1914); American Home Assurance Co. v. DeFreitas, 18 V.I. 26, 29



(D.V.I. 1980). Hence, in the instant case, to the extent that

there is an inconsistency between the provisions of 33 V.I.C.

§681(c) (Supp. 1982) with respect to the Bureau being able to

employ personnel by contract and the procedures outlined in the

System (3 V.I.C. §§521-526), the provisions of 33 V.I.C. §681(c)

are controlling as they are the latest legislative enactment.

Furthermore, "{iJf a statute is explicit and unambiguous in its



language and intent, judicial interpretation...is improper.

|



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et al v. Government

88/1982 0 -10-



fonsanto,

Civil No



‘Interpretation is appropriate [only] where a challenged statutory



i provision might reasonably bear two or more constructions."



Government v. Thomas, 9 V.I. 17, 21 (Mun. Ct. 1971). Such is not

‘the case here. |

| The language of §681(c) is written in the disjunctive.



"Cannons of construction ordinarily suggest that the terms



' connected by a disjunctive be given separate meanings, unless the



- context dictates otherwise." Reiter v. Sonotone Corp., 442 U.S.



337, 340 (1979). The Legislature amended the language of §681(c),

a mere 35 days after its initial enactment, to allow the Bureau to

hire personnel by contract. There should be no doubt that this

amendment to §681(c) is indicative of a legislative intent to



change existing law. See, Ali v. Gibson, 16 V.I. 426, 445; 483 F.



Supp. 1102, 1111 (D.V.I. 1979); cert. denied 449 U.S. 1129. This



conclusion is further supported by the legislative findings that

"a maximum effort is required to improve the assessment and

collection of all taxes owed the Government... under its existing

tax laws." It was in furthering that goal that the



Legislature empowered the Bureau with the authority not only to

hire personnel subject to the laws applicable to the System, but

also to hire them on contract, if necessary. That is what the



Bureau did when it hired Ferrant on contract -- nothing more,



nothing less.

Government



onsanto, et al v.



ivil No



188/1982



-1l1-



IV.



CONCLUSION



Since the hiring of Ferrant by contract does not give



rise to an action in tort as contemplated by the Act, the



Plaintiffs’ motion to file a late tort claim will be denied



summarily.



Purther, the Plaintiffs' underlying claim for



declaratory and injunctive relief will be dismissed since the



+t



Court concludes that the Government's employment of Ferrant, by



contract



in the Bureau to the position of Chief of D.A.R



a



tr



classified position within the System, is valid



I /



i



Dated:



1984



Labor 3)



f



ISHMAEL A. MEYERS



Judge of the Territorial Ceéurt of the



Virgin Islands



ATT



2



»



ihe vA wan



VIOLA (E. “SMITH



Administeater eigen of the Court