Ocasio v. Bryan
Decision Date | 02 December 1966 |
Docket Number | Civil No. 82-1966 |
Citation | 5 V.I. 677 |
Parties | CRUZ OCASIO, et al., Plaintiff v. ETHELBERT BRYAN, et al., Defendant |
Court | U.S. District Court — Virgin Islands |
See, also, 261 F.Supp. 409
Hearing on motion for order dismissing complaint. The District Court, Gordon, J., held that action under Civil Rights Act sounded in tort and limitation imposed by Revised Organic Act of 1954 applied to such actions, thus it was necessary for plaintiff to aver that Virgin Islands Legislature consented to tort action, as required by Revised Organic Act.
Complaint dismissed without prejudice.RONALD TONKIN, ESQ. (YOUNG, ISHERWOOD & MARSH), St. Croix, Virgin Islands, for plaintiffs
PETER O'DEA, ESQ., Assistant Attorney General, Charlotte Amalie, Virgin Islands, for defendants
MEMORANDUM OPINION
Defendant's motion for an Order dismissing the complaint in the above action on the grounds that the complaint :
A. Fails to aver consent from the Legislature of the Virgin Islands as required by Section 2(b) of the 1954 Revised Organic Act of the Virgin Islands; B. Fails to state a claim upon which relief can be granted;
C. Is so vague as to preclude framing a responsive pleading; came on for hearing on September 13, 1966; the above appearances were made; counsel were heard; and the motion was submitted and taken under advisement.
ISSUE A: Must plaintiffs aver that they have obtained consent from the Legislature of the Virgin Islands as required by Section 2(b) of the 1954 Revised Organic Act.
1. Plaintiff claims that the language of Dryer v. Kazu-hisa Abe, 138 F.Supp. 220, in discussing the Hawaiian Organic Act in relation to 42 U.S.C. § 1983 ( ) says that the Hawaiian Organic Act does not vitiate the effect of § 1983, otherwise it would be possible for a territory to avoid enforcement of the Civil Rights Act. Plaintiff is correct as far as they have argued. The pertinent language is as follows:
The act there merely says that that federal law (The Hawaiian Organic Act) should be construed as territorial law to include persons acting under its authority as acting under color of territorial law. The Hawaiian District Court declared that it (The Hawaiian Organic Act) was considered territorial law for that purpose.
Plaintiff asserts that according to Monroe et al. v. Pape et al., 365 U.S. 167 (1961) the federal remedy is supplementary to the state remedy and the latter doesn't have to be sought first. Plaintiff further asserts that the federalremedy exists independent of the territorial remedy and therefore consent need not be first obtained. We are not involved here with a state remedy nor are we involved with a remedy created by a territorial legislature. Title 48 U.S.C. § 1541(b) does not provide a separate territorial path that plaintiffs might pursue to arrive at the relief they seek. It instead imposes a road block to the federal Civil Rights Act path by means of immunity to territorial employees (unless the territorial legislature's approval is obtained to allow the action). The real issue involved is which is superior, the federal Civil Rights Act or the federal limitation to proceed in 48 U.S.C. § 1541 (b) (the 1954 Revised Organic Act). The pertinent language of 48 U.S.C. § 1541(b) is as follows:
"Provided, that no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by this chapter and said section."
[1] 2. The next inquiry is whether the Civil Rights Act is in fact an action in tort, since the 1954 Revised Organic Act prohibition is directed to actions to recover damages for torts. See Southerland d/b/a Southerland Tours v. St. Croix Taxicab Association et al, 315 F.2d 364, 369 (1963). The Third Circuit Court of Appeals stated in Basista v. Weir, 340 F.2d 74, 81 (1965) as follows:
Recited in Anderson v. Haas et al., 341 F.2d 497, 502 (1965). The conclusion must be that the Civil Rights Act is an action in tort.
[2-7] 3. The next query is whether or not the immunity established by the 1954 Revised Organic Act should apply to the Civil Rights Act. To resolve this question some general rules as to statutory construction should be stated.
". . . if the prior act would be invalid if passed after the effective date of the new constitutional provisions, then such prior act is repealed by the new constitutional provisions." 50 Am.Jur., Statute § 541.
"Moreover, a statute is only repealed by the repugnancy of matter in a subsequent statute to the extent of such repugnancy, and ifany part of the earlier act can stand as not superseded or affected by the later act, it is not repealed." 50 Am.Jur. Statutes § 544. "The fact that two statutes take effect on the same day is strong evidence that they were intended to stand together." 50 Am.Jur. Statutes § 548.
The following occurred chronologically with respect to the legislative and judicial history of the acts involved:
A. In 1871 Congress passed the Civil Rights Act involved herein.
B. In 1939 the Third Circuit Court of Appeals said in Hague v. C.I.O., 101 F.2d 774, 789, "We said such an action...
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Davis v. Knud Hansen Memorial Hospital
... ... The court interpreted the ... Page 182 ... decision of this court in Ocasio v. Bryan, 6 V.I. 43, 374 F.2d 11 (3d Cir. 1967), which denied statutory immunity to individual Government employees, as limited to suits for damages ... ...
- Ocasio v. Bryan, 16,391