Herbert v. Gov't Employees' Serv. Comm'n, Civil No. 84/84
| Decision Date | 21 March 1985 |
| Docket Number | Civil No. 84/84 |
| Citation | 21 V.I. 358 |
| Parties | RALPH HERBERT, Petitioner/Appellant v. GOVERNMENT EMPLOYEES' SERVICE COMMISSION, Respondent/Appellee |
| Court | U.S. District Court — Virgin Islands |
Writ of Review on a final order of the Government Employees Service Commission (GESC), which held that the GESC did not have jurisdiction to hear an appeal of an employee termination because the appeal was not filed within 10 days after termination letter was received by employee. The District Court, O'Brien, J., held that since substantial evidence existed to support the GESC determination that employee did not suffer from a disability which would necessitate tolling the 10 day appeal period, and since dismissal letter to employee did not have to contain notice of the 10 day filing period for an appeal, GESC's decision dismissing the appeal was upheld.STEDMAN HODGE, ESQ., St. Thomas, V.I., for petitioner/appellant
BRENDA J. HOLLAR, ESQ., St. Thomas, V.I., for respondent/appellee
MEMORANDUM OPINION AND ORDER
Once again the appellant, Ralph Herbert ("Herbert"), is seeking review of a decision of the Government Employees Service Commission ("GESC") which dismissed his appeal with prejudice for lack of jurisdiction. This Court must review both findings of fact and conclusions of law. In doing so we will affirm the decision of the GESC.
Appellant Herbert, a corrections supervisor with the Virgin Islands Bureau of Corrections, received a termination letter on November 6, 1979. This letter did not include notice that Herbert had ten (10) days to appeal his termination to the GESC. Nearly one year later Herbert brought this matter before the GESC. The Secretary of the GESC notified Herbert that the Commission lacked jurisdiction to hear his appeal because Herbert had failed to file his appeal within the ten (10) day limitation period. 3 V.I.C. § 530(a).
Herbert then filed an action in Territorial Court. After a great deal of procedural confusion, a number of continuances, a change of attorneys and a recusal order, the case was dismissed on April 19, 1982 for lack of prosecution. A subsequent motion for reconsideration was denied because the Territorial Court found no explanation for the delay and found a jurisdictional defect which would have required dismissal.
Herbert appealed that decision to the District Court which, although affirming the Territorial Court's dismissal did so without prejudice and encouraged Herbert to return to the GESC to obtain an adequate determination as to whether he complied with the requirements of 3 V.I.C. § 530. Herbert v. Government of the Virgin Islands, Civ. No. 82-210, 1983 St. X. Supp. (D.V.I. March 30, 1983).
Herbert then requested and received what will euphemistically be called a hearing before the GESC. At that hearing the GESC failed to hear testimony or take evidence; the Commission simply adopted the opinion of the Secretary that the GESC did not have jurisdictionover the matter because Herbert had failed to file a timely appeal as mandated by 3 V.I.C. § 530.
Herbert again sought the assistance of this Court. In an order dated September 8, 1983 this Court reversed the decision of the GESC and ordered the GESC to hold another hearing to receive whatever evidence was available on the issue of the timeliness of Herbert's appeal.
A new hearing was held on February 3, 1984 at which time evidence was taken and testimony heard. A GESC opinion, dated February 20, 1984, dismissed the appeal with prejudice for lack of jurisdiction. The Commission based its opinion on the following findings:
Herbert then sought review of that decision and this Court granted Herbert's application for a Writ of Review on March 21, 1984.
[1-3] In reviewing actions of administrative agencies, this Court applies a different standard of review for determinations of fact than for conclusions of law. Agency determinations of fact warrant greater deference by courts of review, and these determinations will be upheld if there is substantial evidence in the record to support the factual finding. Perry v. G.E.S.C., 18 V.I. 524, 527 (D.V.I. 1981); Branch v. Bryan, 18 V.I. 54, 56 (D.V.I. 1980); Brown v. Harris, 1980 St. T. Supp. 405, 407 (D.V.I. Sept. 18, 1980); Turnbull v. Holder, 11 V.I. 94, 98 (D.V.I. 1974); Donastorg v. GESC, 6 V.I. 368, 371, 285 F. Supp. 111, 112 (D.V.I. 1968). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Donastorg, supra at 112. The determination of what amount of evidence is substantial is a matter of law to be determined by the Court after evaluation of the entire record. LewesDairy, Inc. v. Freeman, 401 F.2d 308 (3d Cir. 1968), cert, denied, 394 U.S. 929 (1969); Hayes v. Celebreze, 311 F.2d 648 (3d Cir. 1963).
[4] Agency applications of law receive more intrusive review. Their conclusions will be upheld only if the Agency has applied the relevant law correctly. Perry, 18 V.I. at 527. For interpretations of law, this Court is free to substitute its own judgment for that of the agency. Kirby v. Government, 1983 St. X Supp. 122, 125 (D.V.I. April 8, 1983); Virgin Islands Hotel Assoc. v. Virgin Islands Water & Power Authority, 1972 St. X Supp. 6, 9 (D.V.I. February 2, 1972).
[5] The only factual issue on review is whether substantial evidence exists to support the GESC determination that Herbert did not suffer from a disability that would...
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Lavallee Northside Civic Ass'n & Lavallee Vill. Dev. Ass'n, Inc. v. Virgin Islands Bd. of Land United Statese Appeals, Civil No. 1988/168
...F.2d 131, 132-33 (3d Cir. 1987) (per curiam). Our review of its findings of fact is much more deferential. Herbert v. Government Employees' Serv. Com'n, 21 V.I. 358, 360 (D.V.I. 1985) (citations omitted).A) Statutory Appeal Rights 12 V.I.C. § 914 provides an aggrieved such as the petitioner......