APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN (D.C. Civil No. 77-271)
Before Adams, Maris and Sloviter, Circuit Judges.
On this appeal from a decision of the district court of the Virgin Islands, we are required to decide whether officers and employees of the Government of the Virgin Islands have blanket immunity for torts committed while they were acting in their official capacity. We hold they do not, and reverse the decision of the district court which held to the contrary.
Plaintiff Richard Davis sued Knud-Hansen Memorial Hospital, an instrumentality of the Government of the Virgin Islands, the Government of the Virgin Islands, and Dr. Curtis R. Coulam, "a physician employed at Knud-Hansen Memorial Hospital," alleging that from November 15 to November 23, 1975, he was negligently treated by Dr. Coulam at Knud-Hansen for a compound fracture of the right tibia. Service of the complaint on Dr. Coulam was not effected for some time. In the interim the court dismissed the complaint as to the Hospital and the Government because of plaintiff's failure to comply with the procedural requirements of the Virgin Islands Tort Claims Act, V.I. Code Ann. tit. 33, §§ 3401-13 (Supp.1978).*fn1 That order is not the subject of this appeal.
Thereafter, Dr. Coulam was served. On January 15, 1979, he moved to dismiss plaintiff's complaint, alleging that he was immune from suit pursuant to section 2(b) of the Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1541(b), or, in the alternative, on the ground of common law immunity. On October 5, 1979, the court granted defendant's motion and dismissed the complaint as to Dr. Coulam.
The district court held that section 2(b) of the Revised Organic Act of the Virgin Islands "clothed all officers and employees of the government with immunity from tort suits for all acts performed while acting within the scope of their employment." The court rejected the view articulated in a recent series of Virgin Islands cases that held there was no statutory immunity for government employees sued in their individual capacity. The court interpreted the 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 brought under 42 U.S.C. § 1983. The court held that section 2(b) of the Revised Organic Act should be interpreted analogously with the Federal Tort Claims Act, which the court apparently construed as providing immunity for federal employees even for negligence in the course of ministerial functions.*fn2 The court concluded that it was "difficult to adhere to the ministerial/discretionary dichotomy, however reasonable and logical it might be, when the plain language of our basic law commands otherwise." The court reasoned that the interest sought to be protected is that of the public fisc, and that "permitting suits against the government employees and officers does work to the financial detriment of the government" because public employees threatened with the possibility of legal action would demand that the government pay for their insurance. Therefore, defendant's motion to dismiss was granted, on the ground that's 2(b) confers immunity to all officers and employees of the Government of the Virgin Islands with respect to their official doings."
Resolution of this issue requires analysis of the conflicting lines of cases on the scope of the immunity granted by section 2(b) of the Revised Organic Act that emanated from the two district court judges of the Virgin Islands, Judge Christian who wrote the opinion in the instant case and the late Judge Young. Section 2(b) of the Revised Organic Act of July 22, 1954, which provides for the territorial government of the Virgin Islands, states:
The government of the Virgin Islands ... shall have the right to sue by such name and in cases arising out of contract, to be sued:
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 Act).
48 U.S.C. § 1541(b).*fn3 In 1971, the legislature of the Virgin Islands enacted the Virgin Islands Tort Claims Act which, inter alia, waived ...