Victoria Vooys v. Maria Bentley , 901 F.3d 172 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3912
___________
VICTORIA VOOYS, JOSEPH GERACE
d/b/a CANE BAY BEACH BAR
v.
MARIA BENTLEY; CB3, INC.; WARREN MOSLER;
CHRIS HANLEY; CHRISMOS CANE BAY, LLC
Warren Mosler; Chris Hanley; Chrismos Cane Bay, LLC,
Petitioners
__________
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE VIRGIN ISLANDS
(V.I. S. Ct. Civ. No. 2015-0046)
(V.I. Super. Ct. Civ. No. 2005-00368)
___________
Argued December 12, 2017 before Merits Panel
Argued En Banc February 21, 2018
___________
Before: SMITH, Chief Judge, MCKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
VANASKIE, SHWARTZ, KRAUSE, RESTREPO, BIBAS,
and SCIRICA,* Circuit Judges.
(Filed: August 21, 2018)
*
Participating as a member of the En Banc Court
Pursuant to 3rd Cir. I.O.P. 9.6.4.
Lee J. Rohn, Esq.
Rhea R. Lawrence, Esq. [ARGUED]
Lee J. Rohn & Associates, LLC
1101 King Street
Christiansted, VI 00820
Counsel for Plaintiffs-Respondents
Stephen L. Braga, Esq.
Laura Cooley (Third Year Law Student) [ARGUED]
Tanner Russo (Third Year Law Student) [ARGUED]
Alaric Smith (Third Year Law Student)
Cole A. Wogoman (Third Year Law Student)
University of Virginia School of Law
Appellate Litigation Clinic
580 Massie Road
Charlottesville, VA 22903-1789
Counsel for Defendants-Petitioners
Dwyer Arce, Esq. [ARGUED]
Kutak Rock
1650 Farnam Street
The Omaha Building
Omaha, NE 68102
Edward L. Barry, Esq.
Law Offices of Edward L. Barry
2120 Company Street
Christiansted, VI 00820
John-Russell B. Pate, Esq.
The Pate Law Firm
P.O. Box 890
St. Thomas, VI 00804
Counsel for Amicus Curiae Virgin Islands Bar Association
Andrew C. Simpson, Esq.
Andrew C. Simpson Law Offices
2191 Church Street, Suite 5
Christiansted, VI 00820
Counsel for Amicus Curiae Companion Assurance
Company
2
___________________
OPINION
_________________
McKEE, Circuit Judge
We are asked to grant certiorari review of a decision of
the Supreme Court of the Virgin Islands that reinstated
contractual claims that arose from the sale of a bar in the
islands. The Superior Court of the Virgin Islands dismissed
the suit in April of 2015 based on Plaintiffs’ failure to post a
security bond. The Supreme Court of the Virgin Islands
thereafter reversed that decision and reinstated the suit based
upon its conclusion that the provision of Virgin Islands law
allowing a court to order nonresident plaintiffs to post such a
bond violated the Privileges and Immunities Clause of the U.S.
Constitution.
Defendants now ask us to reverse the Supreme Court of
the Virgin Islands pursuant to our certiorari authority to review
that court’s final decisions. Congress enacted H.R. 6116 in
order to revoke that authority for all “cases commenced on or
after” December 28, 2012.1 We must decide whether “cases,”
as used in H.R. 6116, was intended to apply to all suits initiated
in the Superior Court of the Virgin Islands, the court of original
jurisdiction, or whether it was intended to apply to appeals
from final decisions of the Supreme Court of the Virgin Islands
that were filed on or after that date irrespective of when the suit
was filed.
We previously addressed this issue in United Industrial
Service, Transportation, Professional and Government
Workers of North America Seafarers International Union ex
rel. Bason v. Government of the Virgin Islands.2 We have
1
Act of Dec. 28, 2012, Pub. L. No. 112-226, 126 Stat.
1606 (codified at 48 U.S.C. § 1613 and 28 U.S.C. § 1260)
[hereinafter H.R. 6116].
2
United Indus., Serv., Transp., Prof’l & Gov’t
Workers of N. Am. Seafarers Int’l Union ex rel. Bason v.
Gov’t of the Virgin Islands, 767 F.3d 193 (3d Cir. 2014)
[hereinafter Bason].
3
granted initial hearing en banc in this matter to revisit the
jurisdictional issue we decided in Bason. For the reasons set
forth below, we now conclude that Bason incorrectly
interpreted H.R. 6116 as referring to suits filed in the Superior
Court of the Virgin Islands on or after December 28, 2012. We
now hold that Congress intended for the effective date for H.R.
6116 to apply to the date an appeal from a final decision of the
Virgin Islands Supreme Court is filed and not to the date a suit
is filed in the Superior Court. Since the petition in this matter
was filed after the effective date of H.R. 6116, we hold that we
lack jurisdiction to hear this appeal. Accordingly, we will
dismiss the petition for certiorari review.3
I. BACKGROUND
A. Factual and Procedural History
In 2003, Plaintiffs Joseph Gerace and Victoria Vooys
purchased Cane Bay Beach Bar, which is situated on the island
of St. Croix, U.S. Virgin Islands. In 2005, they sued
Defendants Warren Mosler, Chris Hanley, Chrismos Cane Bay
LLC, and others in the Superior Court of the Virgin Islands for
breach of contract and other claims related to the sale of that
business. Plaintiffs resided in the U.S. Virgin Islands from the
time they filed their suit until the fall of 2012, when they
moved to the U.S. mainland. Their suit was still pending when
they relocated. Upon learning that Plaintiffs were no longer
Virgin Islands residents, Defendants petitioned the Superior
Court for an order requiring Plaintiffs to post a security bond
for potential costs pursuant to title 5, section 547 of the Virgin
Islands Code.4 That provision allows defendants to demand
that nonresident plaintiffs post a bond to cover potential costs
of litigation and allows a court to stay litigation until the bond
3
Although we conclude that we lack jurisdiction to
review the decision of the Supreme Court of the Virgin
Islands in this matter, we clearly have jurisdiction to decide
the underlying question of our jurisdiction. See Chicot Cty.
Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376
(1940) (Federal courts have authority “to determine whether
or not they have jurisdiction to . . . construe and apply the
statute under which they are asked to act.”).
4
V.I. Code Ann. tit. 5, § 547.
4
is paid.5 The court granted Defendants’ request in April of
2013 and ordered Plaintiffs to post a bond of $1,050 each
within thirty days of the order.
Defendants moved to dismiss after Plaintiffs failed to
meet that deadline.6 Plaintiffs vehemently opposed the motion,
arguing, inter alia, that the Virgin Islands nonresident bond
provision was unconstitutional. In April 2015—almost three
years after H.R. 6116 became law—the Superior Court
rejected Plaintiffs’ challenge to the constitutionality of the
nonresident bond requirement and dismissed the suit.
Plaintiffs appealed to the Supreme Court of the Virgin
Islands. In August 2016, that court reversed the decision of the
Superior Court and reinstated the complaint. Defendants
appealed that decision to this Court and we granted certiorari
review in March of 2017. However, after a panel of this Court
heard the parties’ arguments on the merits, we issued a sua
sponte order for initial hearing en banc to reexamine whether
Congress intended us to retain certiorari jurisdiction over
appeals filed after the effective date of H.R. 6116.
We now hold that our certiorari jurisdiction to review
decisions of the Supreme Court of the Virgin Islands does not
extend to any appeal that was filed on or after the date that H.R.
6116 became law. Before we discuss the merits of that
jurisdictional issue, we will place our decision into its
historical context and explain the evolution of our relationship
to the Virgin Islands judicial system.
B. Historical Background
1. Virgin Islands Courts and the Third Circuit’s
Certiorari Jurisdiction
In 1917, the United States purchased what was then the
Danish West Indies from Denmark “in exchange for $25
million in gold and American recognition of Denmark’s claim
to Greenland.”7 Judicial oversight of what became the U.S.
5
Id. § 547(a).
6
See id. § 547(d) (enabling court to dismiss an action
upon nonpayment of bond).
7
Robert M. Jarvis, “A Peculiar Niche”: Admiralty
Law in the United States Virgin Islands, 26 J. Mar. L. & Com.
157, 160 (1995); see Convention for Cessation of the Danish
5
West Indies, U.S.-Den., Aug. 4, 1916, 39 Stat. 1706. A series
of natural, political and social events had made the islands
much less attractive and less valuable to Denmark. These
included the introduction of steam vessels that no longer
needed to “tranship at [St.] Thomas,” a “precipitous fall in
global sugar prices, . . . droughts, [the] development of the
sugar beet in Europe, and an unusually large number of
hurricanes.” Jarvis, supra, at 160. The islands also lost much
of their commercial value with the end of slavery. “Although
Denmark banned slavery in 1802 . . . , it was not until July 3,
1848 that [the Governor-General of the Danish West Indies]
freed the islands’ slaves” on what is now celebrated in the
Virgin Islands as Emancipation Day. Id. at 160 n.12.
Yet while the plan to purchase the Virgin Islands was
formulated in 1916, official acquisition came after a long and
arduous back-and-forth on the part of the U.S. Government.
It began with Secretary of State William H. Seward signing a
treaty with Denmark in 1867 for the purchase of St. Thomas
and St. John. Id. at 160 n.13. Thereafter, the island of St.
Thomas was flooded by a “tremendous tidal wave,” “[a]
terrible earthquake shook it,” and opposition to the islands’
acquisition grew “after the ratification of the Alaska purchase,
[which] added to the avalanche of objections” from Congress.
Id. However, the Danish Government was now “[s]o
anxious” to consummate the sale that it was “ready to add the
remaining island of [St. Croix] at a nominal price.” Id.
Much discussion, formal and informal,
finally resulted in the signature of a Danish-
American treaty (January 24, 1902) for the
purchase of the islands for $5,000,000. . . .
[T]he Senate readily ratified the treaty, but the
upper house of the Danish Parliament rejected it
by one vote. It was not until 1917 that both
governments were able to exchange ratifications
of a treaty of purchase; by then, in the
atmosphere of war, the price had gone up to the
exorbitant figure of $25,000,000.
6
Virgin Islands was promptly assigned to the Court of Appeals
for the Third Circuit by the Act of March 3, 1917.8 The
pertinent provision—consisting of a mere thirty-five words—
provided: “In all cases arising in the . . . West Indian Islands
and now reviewable by the courts of Denmark, writs of error
and appeals shall be to the Circuit Court of Appeals for the
Third Circuit . . . .”9
Now home to a population of around 100,000, the U.S.
Virgin Islands became an unincorporated American territory in
1954.10 However, the evolution of the islands’ legal system
and its relationship to the Third Circuit date back much further
and are the result of numerous enactments by both the U.S.
Congress and the Virgin Islands legislature.11
Professor Robert M. Jarvis, who has extensively
studied the history of the Virgin Islands, has authored a
detailed explanation for how we obtained jurisdiction over
Id. at 161 n.13 (quoting S. Bemis, A Diplomatic History of the
United States 399-403, 521 (3d ed. 1950)).
8
Act of March 3, 1917, Pub. L. No. 64-389, ch. 171, §
2, 39 Stat. 1132, 1133 (current version at 48 U.S.C. § 1392).
9
Id.10
Revised Organic Act, Pub. L. No. 83-517, ch. 558, §
2, 68 Stat. 497 (1954) (codified as amended at 48 U.S.C. §
1541(a)). An unincorporated territory is one that is not
nearing statehood and whose subjects do not enjoy full
constitutional guarantees. Gov’t of Virgin Islands v. Bodle,
427 F.2d 532, 533 n.1 (3d Cir. 1970). For example, Virgin
Islands residents are not permitted to vote in presidential
elections, although they are U.S. citizens. Ballentine v.
United States, 486 F.3d 806, 811 (3d Cir. 2007). They are
represented in Congress by a single non-voting delegate. 48
U.S.C. § 1711.
11
For a thorough history of Virgin Islands governance
from 1906, while they were still a colony of Denmark, to
Congress’s enactment of the legislation establishing the
framework for modern Virgin Islands governance, see the
opinion of U.S. District Court Judge Thomas K. Moore in
Ballentine v. United States, No. Civ. 1999-130, 2001 WL
1242571, at *1-7 (D.V.I. Oct. 15, 2001).
7
the islands’ courts.12 According to Professor Jarvis, officials
in the U.S. Bureau of Insular Affairs originally “felt that the
issue of the USVI appeals should be dealt with after the
purchase of the islands was complete.”13 The Bureau’s
Chief, Brigadier General Frank McIntyre, so testified before
the Foreign Affairs Committee of the U.S. House of
Representatives in 1917:
The Chairman: What courts have they?
Gen. McIntyre: The courts are very
simple. In all the higher cases they have now a
provision for appeal to Denmark. For instance
12
See Jarvis, supra note 6, at 166 n.38. Despite
numerous inquiries that have been made into the issue,
Professor Jarvis admits that the “question of why the Third
Circuit, which sits in Philadelphia, was chosen is one that has
baffled historians for years.” Id. However, the most probable
explanation is that Delaware Senator Willard Saulsbury, Jr.,
inserted the language assigning the Virgin Islands to the Third
Circuit at the last minute. Senator Saulsbury chaired the
Committee on Coast and Insular Survey as well as the
Committee on Pacific Islands and Puerto Rico. Id. at 167
n.38. His “position put him in line to greatly influence the
final wording of any bill. Accordingly, it is very easy to
believe that when it came time to decide what to do about
appeals from the islands[,] Saulsbury was consulted and, as
[Judge Albert Maris of the Third Circuit] suggests,
[Saulsbury] recommended the Third Circuit as the best
alternative available.” Id.
As Professor Jarvis explains, “Saulsbury would have
been comfortable proposing the Third Circuit,” as “he had
tried several cases before the court, including a difficult
admiralty appeal.” Id. In any event, the timing of the
insertion of the pertinent language—immediately before
Easter recess—and the brevity of the key provision reinforces
the argument that Senator Saulsbury could have provided for
appeals to the Third Circuit with very little fanfare or notice.
See infra note 17.
13
Jarvis, supra note 6, at 166 n.38.
8
the sheriff also exercises the office of judge.
They have very few cases that go to Denmark.
Mr. [William S.] Goodwin [D-Ark.]: Are
the decrees of the courts in English?
Gen. McIntyre: The records of the courts
are written in Danish, and one of the difficulties
is that most of the laws are in Danish. A great
many of them have not been translated.
The Chairman: It is necessary for us to
make some provision for appeals?
Gen. McIntyre: I think not, because, I
think, the proposition is simple, and I think that
matter can be handled later after there has been a
study and report on just exactly what you need.
The Chairman: And this bill gives the
President the necessary authority?
Gen. McIntyre: Yes, sir.14
However, despite General McIntyre’s expressed desire
to delay resolution of the issue of judicial oversight over the
newly acquired islands, the move to grant the Court of
Appeals for the Third Circuit that authority was
accomplished quickly and by insertion of the above-quoted
thirty-five words into the legislation.15 The legislation was
passed less than three weeks after General McIntyre
testified.16
14
Id. (quoting Cession of Danish West Indian Islands:
Hearings on H.R. 20755 Before the Comm. on Foreign
Affairs, 64th Cong. 33 (1917) (testimony of Brigadier Gen.
Frank McIntyre, Chief of U.S. Bureau of Insular Affairs)).
For a thorough discussion of the political structure of the
Virgin Islands under Danish rule, see Ballentine, 2001 WL
1242571, at *1-4.
15
Jarvis, supra note 6, at 166 n.38; see Act of March 3,
1917, ch. 171, § 2, 39 Stat. at 1133 (vesting Third Circuit
with judicial authority over Virgin Islands cases).
16
Jarvis, supra note 6, at 166 n.38.
9
For Congress, the choice of the Third Circuit may have
been much less puzzling then than it appears to be today.
The First Circuit already was supervising Puerto
Rico. The Second Circuit’s docket was
overwhelmed with cases from New York. The
Fourth Circuit, with only two authorized judges,
had been considered short-handed for years. The
Fifth Circuit, although geographically the closest
circuit to the islands, was handling appeals from
the District Court in the Panama Canal Zone. . . .
[T]he remaining circuits . . . were simply too
distant to provide effective oversight. As such,
Congress probably felt that there was no reason
to wait for the results of the [study General
McIntyre suggested be undertaken of the Virgin
Islands courts] when the conclusion [Congress]
was likely to draw was already clear.17
Moreover, resolution of the issue was no doubt
facilitated by the fact that the legislation was introduced on
the eve of a congressional recess.18 As Professor Jarvis
explains, “[t]o the extent that Congress considered the matter
. . . , the Third Circuit probably seemed like the logical
choice.”19 That choice was likely also informed by
geographic practicality. With Philadelphia as its seat, judges
of the Third Circuit could easily travel to the Virgin Islands,
which in those days could be reached by steamer from
17
Jarvis, supra note 6, at 167 n.38. In addition, the
Eleventh Circuit did not yet exist. It was not established until
nearly fifty years later, in 1981. Fifth Circuit Court of
Appeals Reorganization Act of 1980, Pub. L. No. 96-452, § 2,
94 Stat. 1994, 1994 (codified as amended at 28 U.S.C. § 41).
18
Jarvis, supra note 6, at 166-67 n.38. The bill to
assign the Virgin Islands to the Third Circuit came up on
March 3, 1917, just one day before the adjournment of the
64th Congress on March 4, 1917. See Act of March 3, 1917,
ch. 171, § 2, 39 Stat. at 1133.
19
Jarvis, supra note 6, at 166-67 n.38.
10
neighboring New York.20, 21
20
Id. at 167 n.38 (citing Interview with Albert B.
Maris, Circuit Judge, Third Circuit Court of Appeals (Apr.
18, 1984) (transcript available from the Federal Judicial
Center)). It is almost certain that there was not great
competition for authority over any aspect of the Virgin
Islands. The islands were not easy to reach for most circuit
courts of appeals and they were not yet economically
developed. Jarvis, supra note 6, at 168 n.38. “[D]uring the
early years of American rule[,] conditions actually worsened,
and in 1928 a devastating hurricane swept over the islands.”
Id.
More critically, the judicial system in the Virgin
Islands was considered to be “archaic.” A Bill to Provide a
Civil Government for the Virgin Islands, and for Other
Purposes: Hearings on S. 2786 Before the S. Comm. on
Territories and Insular Possessions, 68th Cong. 6 (1924)
[hereinafter 1924 Senate Hearings] (statement of A. A. Berle,
Jr., Counsel for the Virgin Islands Committee and the Virgin
Islands branch of the American Federation of Labor). It had
been based on “an old Danish system, which even the Danes
were about to revise.” Id. Accordingly, any move by Senator
Saulsbury to place the judicial oversight of the Virgin Islands
close to his home state of Delaware would have been met
with much more apathy than opposition, and perhaps no small
amount of relief.
This began to change when Albert B. Maris was
appointed to the Third Circuit. He “was keenly interested” in
the Virgin Islands and helped draft the Revised Organic Act,
which is discussed below. Jarvis, supra note 6, at 168 n.38;
see infra note 26 and accompanying text. Thereafter, he
“oversaw the effort to codify the islands’ laws” and
subsequently received the Virgin Islands Medal of Honor for
his work improving and modernizing the Virgin Islands legal
system. Jarvis, supra note 6, at 168 n.38.
The relationship between the Third Circuit and the
Virgin Islands grew even stronger when President Truman
appointed William H. Hastie to our Court. Hastie had been
governor of the Virgin Islands and was thereafter appointed to
11
the District Court of the Virgin Islands. With that
appointment, he became the first African-American judge of a
federal district court. When President Truman appointed him
to the Court of Appeals for the Third Circuit, he then became
the first African-American judge of a federal circuit court of
appeals. Given his service as a Virgin Islands governor and
judge, “Hastie was well aware of the problems faced by the
islands’ fledgling legal system. Thus, throughout his time on
the Third Circuit (1949-76), Hastie sought to bring the
[C]ourt closer to the islands.” Id.
21
Despite the logic of Jarvis’s explanation, it is
noteworthy that A. Leon Higginbotham, Jr., who was a
prominent jurist on this Court and a noted legal historian, had
a different theory. Judge Higginbotham believed the choice
to assign the Virgin Islands to the Court of Appeals for the
Third Circuit was largely the result of the hostile political and
racial climate at the time. In an interview for the Lyndon
Baines Johnson Library Oral History Project, Judge
Higginbotham opined that we were assigned jurisdiction over
the Virgin Islands for “[t]he same reason why you have
Puerto Rico in the First Circuit, which is Massachusetts.”
Interview by Joe B. Frantz with A. Leon Higginbotham,
Circuit Judge, Third Circuit Court of Appeals, in
Philadelphia, PA (Oct. 7, 1976) (transcript available from the
Lyndon Baines Johnson Library Oral History Collection at
http://www.lbjlibrary.net/assets/documents/archives/oral_hist
ories/higginbo/higginbo.pdf). Judge Higginbotham
explained:
When the Virgin Islands became a U.S.
possession it was then 90 per cent non-white,
about 90 per cent black, and the closest circuit
to it would be the Fifth, which is Alabama,
Mississippi, Louisiana, Georgia, Florida, Texas.
With the degree of hostility between whites and
blacks it was thought—so I understand, I have
no documentation of it—that it would be better
to have them in a different circuit. And I
believe the same was true of Puerto Rico; the
12
However, the choice of the Third Circuit was not
without criticism. Just seven years later, in 1924, A. A.
Berle, Jr., who was counsel for the Virgin Islands Committee
and for the Virgin Islands branch of the American Federation
of Labor, advocated for a different venue in his testimony
before the Senate Committee on Territories and Insular
Fourth Circuit, which is Virginia, Maryland,
North Carolina, and maybe also South Carolina,
or the Fifth were geographically closer.
Id.
However, when viewed in context with then
current events, it is not at all certain that legislators
would have been concerned about the racial
demographics of the Virgin Islands when deciding
which Court of Appeals to assign them to. President
Woodrow Wilson had already begun segregating the
federal government around the time of the U.S.’s
annexation of the Virgin Islands. See Kathleen L.
Wolgemuth, Woodrow Wilson and Federal
Segregation, 44 J. Negro Hist. 158, 161 (1959) (noting
that under President Wilson’s administration, “[b]y the
end of 1913, segregation had been realized in the
Bureau of Engraving and Printing, the Post Office
Department, the Office of the Auditor for the Post
Office, and had even begun in the City Post Office in
Washington, D.C.”); id. (stating that during Wilson’s
presidency, “[f]ederal segregation was being enacted
to keep Negroes and whites apart” while “other steps
were taken to appoint Negroes only to menial posts or
to restrict them from obtaining Civil Service jobs”).
Given this state of affairs, it is at least debatable
whether elected representatives would have been as
concerned about subjecting the Virgin Island’s
predominantly black population to the judicial
oversight of jurisdictions in the Deep South as Judge
Higginbotham’s theory assumed. Moreover, as Judge
Higginbotham conceded, there is little authority or
documentation to support his view.
13
Possessions of the United States.22 He testified about a
congressional commission that had made suggestions for the
structure of the government in the Virgin Islands.
Specifically, Berle informed the Senate Committee that
“[t]he commission . . . believes[] that in the revision of the
judicial system of the islands[,] special attention should be
given to the establishment of a court of appellate jurisdiction
more accessible than the present tribunal (United States
[C]ircuit [C]ourt, [T]hird [Circuit], Philadelphia, Pa.).”23
Yet as we have explained, there was really no realistic
alternative to the Third Circuit and certainly no closer, more
practical alternative at the time. The First and Second
Circuits were even farther away than the Third and, for the
reasons we have explained, the Fifth Circuit, though closer,
was simply not a practical choice.24
Although the United States acquired the Virgin Islands
in 1917, Congress neglected to organize any civilian
government there until 1936, when it enacted the Virgin
Islands Organic Act.25 That Act established a legislative
body in the Virgin Islands along with municipal councils in
Charlotte Amalie, St. Thomas and in Christiansted, St. Croix
(which had been the Danish Capital).26
22
1924 Senate Hearings, supra note 19, at 3
(statement of A. A. Berle, Jr.).
23
Id. (parenthetical in original).
24
See Jarvis, supra note 6, at 167 n.38 (discussing
geographic impracticalities of placing jurisdiction within
other circuits).
25
Id. at 161; see Organic Act of the Virgin Islands of
the United States (Virgin Islands Permanent Government
Act), Pub. L. No. 74-749, ch. 699, 49 Stat. 1807 (1936)
(codified as amended at 48 U.S.C. § 1405 et seq.).
26
Jarvis, supra note 6, at 161; Organic Act of the
Virgin Islands, ch. 699, § 2, 49 Stat. at 1807. Congress had
initially established only a temporary government on the
Virgin Islands consisting of “a governor appointed by the
President . . . with the consent of the Senate, [and providing
that the governor] might be an Army or Navy officer. As a
matter of custom, [the governor was] always . . . a naval
14
However, most of the more intricate details of Virgin
Islands governance were not resolved until Congress passed a
Revised Organic Act in 1954.27 That Act “laid the groundwork
for the current Virgin Islands court system,” including its “trial
courts and an appellate court.”28 In particular, it established
the District Court of the Virgin Islands as an Article IV court29
with “jurisdiction over federal questions, regardless of the
amount in controversy, and general original jurisdiction over
questions of local law, subject to the exclusive jurisdiction of
officer, but he was not technically responsible to the Navy . . .
nor was he technically responsible to any department of the
Government.” 1924 Senate Hearings, supra note 19, at 3-4
(statement of A. A. Berle, Jr.).
27
Revised Organic Act of the Virgin Islands, Pub. L.
No. 83-517, ch. 558, 68 Stat. 497 (1954) (codified as
amended at 48 U.S.C. § 1541 et seq.).
28
Defoe v. Phillip, 702 F.3d 735, 738 (3d Cir. 2012);
see Revised Organic Act, ch. 558, §§ 21-26, 68 Stat. at 506-
07. A. A. Berle described the difficulties with the Virgin
Islands judicial system, as initially constructed following
acquisition from Denmark, in his testimony before the Senate
Committee on Territories and Insular Possessions in 1924:
[T]he system is archaic; it is an old Danish
system, which even the Danes were about to
revise, and one of the particular difficulties of
which the islands bitterly complain lies in the
fact that a man is judged by a police officer,
who corresponds roughly with our district
attorney; and when he comes up for final trial,
this same judge-district attorney prosecutes him.
1924 Senate Hearings, supra note 19, at 6 (statement of A. A.
Berle, Jr.).
29
Article IV, Section 3 of the United States
Constitution states, in relevant part: “Congress shall have
Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property
belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2.
15
the local courts over civil actions where the amount in
controversy was less than $500”30 and over criminal actions
where the maximum punishment was a fine of $100,
imprisonment for six months, or both.31 Finally, the Revised
Organic Act established the District Court of the Virgin Islands
as an appellate court charged with reviewing the judgments and
orders of the local Virgin Islands courts.32
Pursuant to a series of amendments to the Revised
Organic Act in 1984 (the “1984 Amendments”), the appellate
role of the District Court expanded. One such amendment
created an Appellate Division of the Virgin Islands District
Court, which would appoint three-judge panels to hear appeals
30
Moravian Sch. Advisory Bd. of St. Thomas, V.I. v.
Rawlins, 70 F.3d 270, 272 (3d Cir. 1995); see Revised
Organic Act, ch. 558, §§ 22-23, 68 Stat. at 506.
31
Revised Organic Act, ch. 558, §§ 22-23, 68 Stat. at
506. Under the Revised Organic Act, the local Virgin Islands
courts also maintained exclusive original jurisdiction over “all
violations of police and executive regulations.” Id. at ch. 558,
§ 23.
32
Id. at ch. 558, § 22. As originally constituted, judges
of the District Court of the Virgin Islands were appointed by
the governor, who retained the right to remove them, and
apparently did so at will. 1924 Senate Hearings, supra note
19, at 6 (statement of A. A. Berle, Jr., Counsel for the Virgin
Islands Committee). See United States v. Malmin, 272 F. 785,
792 (3d Cir. 1921), wherein this Court granted a writ of
mandamus to restore the position of Judge Lucius J. M.
Malmin, a district court judge in the Virgin Islands who had
been removed by the governor. The governor had appointed
the judge pursuant to a provision of the Colonial Code of the
Municipality of St. Croix. Id. at 787-88. However, the
provision granting the governor that power was set aside in
1920 by President Woodrow Wilson. Id. at 788. Shortly
following that repeal, the governor nevertheless removed
Judge Malmin from the bench and appointed a successor. Id.
We issued a writ ordering Judge Malmin’s reinstatement to the
bench and removing the judge whom the governor had
appointed to replace him. Id. at 792.
16
from local courts.33 Final decisions of the Appellate Division
could then be appealed to the Court of Appeals for the Third
Circuit as a matter of right.34
The 1984 Amendments also provided a mechanism that
allowed the Virgin Islands legislature to substantially alter this
basic framework. The Amendments granted that legislature
power to “divest the District Court of original jurisdiction for
local matters by vesting that jurisdiction in territorial courts
established by local law for all causes for which ‘any court
established by the Constitution and laws of the United States
does not have exclusive jurisdiction.’”35 The 1984
Amendments thus laid the groundwork for a “dual system of
local and federal judicial review in the Virgin Islands,”
33
See Act of Oct. 5, 1984, Pub. L. No. 98-454, title
VII, § 705, 98 Stat. 1732, 1739 [hereinafter 1984 Amendment
to Revised Organic Act] (codified at 48 U.S.C. § 1613a(a))
(“Prior to the establishment of [local Virgin Islands] appellate
court[s] . . . , the District Court of the Virgin Islands shall
have such appellate jurisdiction over the courts of the Virgin
Islands established by local law to the extent now or hereafter
prescribed by local law . . . .”); id. (codified at 48 U.S.C. §
1613a(b)) (“Appeals to the District Court of the Virgin
Islands shall be heard and determined by an appellate division
of the court consisting of three judges, of whom two shall
constitute a quorum.”).
34
Id. at title VII, § 705, 98 Stat. at 1740 (codified at 48
U.S.C. § 1613a(c)) (“The United States Court of Appeals for
the Third Circuit shall have jurisdiction of appeals from all
final decisions of the district court on appeal from the courts
established by local law.”).
35
Parrott v. Gov’t of the Virgin Islands, 230 F.3d 615,
619 (3d Cir. 2000) (quoting 48 U.S.C. § 1611(b)); see 1984
Amendment to Revised Organic Act, title VII, § 702, 98 Stat.
at 1737 (codified at 48 U.S.C. § 1611(b) (1984)) (“The
legislature of the Virgin Islands may vest in the courts of the
Virgin Islands established by local law jurisdiction over all
causes in the Virgin Islands over which any court established
by the Constitution and laws of the United States does not
have exclusive jurisdiction.”).
17
whereby the Virgin Islands courts could expand their original
jurisdiction over both criminal and civil matters.36 By 1991,
the Virgin Islands had “exercised that power, vesting exclusive
jurisdiction over local [civil] actions in the Territorial Court of
the Virgin Islands—now known as the Superior Court of the
Virgin Islands.”37 Thereafter, “the District Court continued to
hear appeals from local trial courts, and it retained concurrent
jurisdiction over local crimes that are similar to federal
crimes.”38
This concurrent jurisdiction ended in 1994 when the
Virgin Islands legislature vested exclusive jurisdiction over all
local crimes with the Superior Court of the Virgin Islands.39
That court thus became the initial, exclusive arbiter of both
local criminal and civil actions.
The District Court of the Virgin Islands continued to
serve an appellate function until 2004, when the Virgin Islands
legislature exercised the authority Congress had given it in the
Revised Organic Act to establish the Supreme Court of the
36
Parrott, 230 F.3d at 619.
37
Defoe, 702 F.3d at 738; see Act of Sept. 5, 1990, No.
5594, § 1, 1990 V.I. Sess. Laws 271 (codified as amended at
V.I. Code Ann. tit. 4, § 76(a)) (granting the Superior Court of
the Virgin Islands “original jurisdiction in all civil actions
regardless of the amount in controversy” and thus divesting
the District Court of the Virgin Islands original jurisdiction
over purely local civil matters); 1984 Amendment to Revised
Organic Act, title VII, § 703, 98 Stat. at 1738 (“[T]he District
Court of the Virgin Islands shall have general original
jurisdiction in all causes in the Virgin Islands the jurisdiction
over which is not then vested by local law in the local courts
of the Virgin Islands . . . .”).
38
Defoe, 702 F.3d at 738.
39
Act of Sept. 30, 1993, No. 5890, § 1, 1993 V.I. Sess.
Laws 214 (codified as amended at V.I. Code Ann. tit. 4, §
76(b)); see 1984 Amendment to Revised Organic Act, title
VII, § 702, 98 Stat. at 1737 (codified at 48 U.S.C. § 1611(b)
(1984)).
18
Virgin Islands.40 The creation of that court “altered the
relationship between the federal judiciary and the Virgin
Islands court system.”41 In addition to ending the federal
district court’s appellate jurisdiction over local decisions,42 the
establishment of the Supreme Court of the Virgin Islands gave
rise to our certiorari jurisdiction over final decisions of that
court pursuant to the 1984 Amendments to the Revised
Organic Act, as codified in 48 U.S.C. § 1613.43 It also
provided for a mechanism for the termination of that certiorari
jurisdiction. We explained this in Pichardo v. Virgin Islands
Commissioner of Labor:
[U]nder the terms of the Revised Organic Act,
for the first fifteen years after the establishment
of the Virgin Islands Supreme Court, [the Court
of Appeals for the Third Circuit] “shall have
jurisdiction to review by writ of certiorari all
final decisions of the highest court of the Virgin
Islands from which a decision could be had.”44
[The Act] also requires our Court to submit
reports to Congress regarding whether the
Supreme Court of the Virgin Islands has
“developed sufficient institutional traditions to
40
See Act of Oct. 29, 2004, No. 6687, § 1, 2004 V.I.
Sess. Laws 179 (codified as amended at V.I. Code Ann. tit. 4,
§ 2(a)) (designating the Supreme Court of the Virgin Islands
as the “court of last resort” pursuant to the power Congress
granted the Virgin Islands legislature under section 21(b) of
the Revised Organic Act).
41
Defoe, 702 F.3d at 739.
42
See 48 U.S.C. § 1613a(a) (setting forth that the
District Court’s appellate jurisdiction ends once the Virgin
Islands legislature creates its own appellate court).
43
48 U.S.C. § 1613 (1994), amended by 48 U.S.C. §
1613 (2012); 1984 Amendment to the Revised Organic Act,
title VII, § 704, 98 Stat. at 1739.
44
48 U.S.C. § 1613 (1994 version).
19
justify direct review by the Supreme Court of the
United States from all such final decisions.”45
Thus, Congress included an interim reporting obligation
in recognition of the possibility that the new Supreme Court of
the Virgin Islands “might develop sufficient institutional
traditions [to replace our certiorari review with certiorari
review by the U.S. Supreme Court] before the fifteen-year
mark.”46
The rate of maturation and sophistication of the
Supreme Court of the Virgin Islands is noted in our 2012
opinion in Banks v. International Rental & Leasing Corp.
(which predated H.R. 6116).47 There, we certified a
controlling question of Virgin Islands law to the Supreme
Court of the Virgin Islands pursuant to rules that court had
adopted to advise us on questions of local law when
appropriate.48 We did so because “the United States Supreme
Court has encouraged federal appellate courts to seek guidance
from the highest court of the appropriate jurisdiction if that
court has adopted procedures for accepting certified questions
of law.”49 In relying on the resulting opinion of the Supreme
Court of the Virgin Islands to resolve the issue before us, we
45
Pichardo v. Virgin Islands Comm’r of Labor, 613
F.3d 87, 94 (3d Cir. 2010) (quoting 48 U.S.C. § 1613 (1994
version)).
46
Kendall v. Daily News Pub. Co., 716 F.3d 82, 86 (3d
Cir. 2013) (Kendall I); see Defoe, 702 F.3d at 739-40
(discussing 2012 interim report).
47
680 F.3d 296 (3d Cir. 2012).
48
Id. at 298-99; see V.I. Sup. Ct. R. 38(a) (“The
Supreme Court of the Virgin Islands may answer questions of
law certified to it by a court of the United States . . . if there is
involved in any proceeding before the certifying court a
question of law which may be determinative of the cause then
pending in the certifying court and concerning which it
appears there is no controlling precedent in the decisions of
the Supreme Court.”).
49
Banks, 680 F.3d at 298.
20
commented that the opinion was “commendably thorough and
very well reasoned.”50
2. Repeal of the Third Circuit’s Certiorari Jurisdiction
Pursuant to our obligation to periodically assess its
development and maturation, our prior Chief Judge appointed
a committee to undertake an in-depth inquiry into the progress
and jurisprudence of the Supreme Court of the Virgin Islands.51
In 2012, that committee issued a glowing assessment. It
unanimously concluded that the Supreme Court of the Virgin
Islands had demonstrated “sufficient institutional traditions to
justify direct review by the Supreme Court of the United
States.”52 Accordingly, the committee recommended that
Congress eliminate our certiorari jurisdiction in favor of direct
review by the U.S. Supreme Court.53
Congress quickly acted upon our recommendation.
That same year, it passed H.R. 6116, which (as we noted at the
outset) replaced our certiorari jurisdiction with direct U.S.
Supreme Court certiorari review of “cases commenced on or
after” the statute’s effective date of December 28, 2012.54
More specifically, in section 3 of H.R. 6116, Congress
specified an “EFFECTIVE DATE” for the repeal of our
jurisdiction as follows: “The amendments made by this Act
50
Id. at 299.
51
Letter from D. Brooks Smith, Circuit Judge, Third
Circuit Court of Appeals, to Theodore A. McKee, Chief
Circuit Judge 1 (April 18, 2012),
http://www.visupremecourt.org/wfData/files/BookletReportof
VirginIslandsSupremeCourt.pdf.
52
Judicial Council of the U.S. Court of Appeals for the
Third Circuit, Report on the Virgin Islands Supreme Court
17, 23 (2012) [hereinafter Third Circuit Judicial Council
Report],
http://www.visupremecourt.org/wfData/files/BookletReportof
VirginIslandsSupremeCourt.pdf.
53
Id. at 17, 23. Indeed, we later noted that the
Supreme Court of the Virgin Islands “passed that test with
flying colors.” Kendall I, 716 F.3d at 86.
54
H.R. 6116, 126 Stat. at 1606-07.
21
apply to cases commenced on or after the date of the enactment
of this Act.”55
Thus, as we have already explained, we must now
decide if “cases commenced on or after the date of the
enactment” refers to all cases filed in the Virgin Islands courts
on or after the enactment of H.R. 6116 (as we held in Bason)
or only to appeals from final decisions of the Supreme Court
of the Virgin Islands that were commenced on or after that date.
II. DISCUSSION
“The doctrine of stare decisis is . . . ‘essential to the
respect accorded to the judgments of . . . [c]ourt[s] and to the
stability of the law.’”56 Thus, we do not lightly revisit an issue
that a panel of this Court has already decided in a precedential
opinion. Nevertheless, Federal Appellate Procedure Rule 35
appropriately allows courts of appeals to grant en banc
(re)hearing to reconsider prior precedential decisions when a
case “involves a question of exceptional importance.”57
Thus, stare decisis “does not compel us to follow a past
decision when its rationale no longer withstands ‘careful
analysis.’”58 “If [our] precedent’s reasoning was clearly
wrong, then stare decisis loses some (though not all) of its
force.”59 Indeed, en banc review serves a very important
institutional purpose for just that reason. It provides a vehicle
by which we can revisit prior decisions when appropriate.
Here, we have decided not only to revisit an issue we
have already resolved in a precedential decision, but also to
grant an initial en banc hearing on that issue without awaiting
a panel decision.
Initial en banc hearing is extraordinary; it
is ordered only when a majority of the active
judges who are not disqualified, determines that
55
Id. at § 3, 126 Stat. at 1607.
56
Arizona v. Gant, 556 U.S. 332, 348 (2009) (quoting
Lawrence v. Texas, 539 U.S. 558, 577 (2003)).
57
Fed. R. App. P. 35(a)(2).
58
Gant, 556 U.S. at 348 (quoting Lawrence, 539 U.S.
at 577).
59
Morrow v. Balaski, 719 F.3d 160, 180 (3d Cir. 2013)
(en banc) (Smith, J., concurring) as amended (June 14, 2013).
22
the case is controlled by a prior decision of the
court which should be reconsidered and the case
is of such immediate importance that exigent
circumstances require initial consideration by the
full court.60
We have concluded that this case presents such a question and
that exigent circumstances warranted initial en banc review.
Given the important role this Court has played in the
evolution of the judicial system of the Virgin Islands, the very
important institutional issues implicated by the revocation of
our certiorari jurisdiction, and the impact our decision will
have on thousands of pending cases in the courts of the Virgin
Islands, we believe that exigent circumstances justified initial
en banc review here.
As we have noted, we first decided the issue we revisit
today in Bason, a decision we issued shortly after H.R. 6116
became law. The “threshold question[]” there was “whether
[the Court of Appeals for the Third Circuit] retain[s] certiorari
jurisdiction over proceedings that were filed in the Virgin
Islands courts before the date of enactment of H.R. 6116.”61
More precisely, we defined the issue as “whether ‘cases
commenced’ carries a broader meaning referring to the filing
of a complaint in the Superior Court or a narrower meaning
referring to the filing of a certiorari petition in this Court.”62
We concluded that “cases commenced,” as used in H.R.
6116, encompassed initial “proceedings filed in the Virgin
Islands courts,” e.g., complaints filed in the Superior Court of
the Virgin Islands.63 Our conclusion rested on the traditional
understanding that a case is “commenced when it is first
brought in an appropriate court.”64 We reasoned that had
Congress “indeed meant to strip this Court of certiorari
60
3d Cir. I.O.P. 9.2 (2018) (emphasis added).
61
Bason, 767 F.3d at 201.
62
Id. at 205-06 (quoting Kendall I, 716 F.3d at 87).
63
Id. at 206.
64
Id. (internal quotation marks omitted) (citing
Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1094 (10th Cir.
2005))
23
jurisdiction over proceedings already filed in the Virgin Islands
courts before the enactment date of the legislation,” it would
have used clearer language to do so, just as it did when it
divested the Court of Appeals for the First Circuit of its
jurisdiction over final decisions of the Supreme Court of Puerto
Rico.65
Shortly after Bason, we briefly addressed the same
jurisdictional question in Fahie v. Virgin Islands.66 Like
Bason, Fahie came to us on a writ of certiorari to the Supreme
Court of the Virgin Islands.67 In addition to the briefing
provided by the parties there, the Virgin Islands Bar
Association filed an amicus brief “challenging our jurisdiction
to consider th[e] matter at all.”68 The jurisdictional issue
identified in Fahie was identical to the one that is now before
this en banc Court:
The operative question [was] whether [H.R.
6116] revokes jurisdiction over cases
commenced in the Superior Court on or after
December 28, 2012, or whether the law only
revokes jurisdiction over cases that have
commenced in our Court (through a petition for
writ of certiorari) on or after that date.69
That question was key because “the case against Fahie
commenced in the Superior Court in November 2011, but was
65
Id. at 206-07; see Act of Aug. 30, 1961, Pub. L. No.
87-189, § 3, 75 Stat. 417 (1961) (current version at 28 U.S.C.
§ 1258) (specifying that the repeal of jurisdiction of the First
Circuit Court of Appeals over cases from the Supreme Court
of Puerto Rico “shall not deprive the Court of Appeals for the
First Circuit of jurisdiction to hear and determine appeals
taken to that court . . . before the effective date of this Act”);
see also discussion infra, Part II.B.2.
66
858 F.3d 162 (3d Cir. 2017).
67
Id. at 164.
68
Id.
69
Id. at 167.
24
not the subject of a petition [for certiorari] to us until 2016,”
four years after H.R. 6116 became law.70
As in Bason, we began our jurisdictional analysis in
Fahie by noting that the Revised Organic Act had given us,
“for a limited time, certiorari jurisdiction over all final
decisions of the highest court of the Virgin Islands from which
a decision could be had.”71 But we explained that Bason had
already decided that “cases commenced” referred to “all cases
commenced in the Superior Court [on or] after December 28,
2012.”72 In a footnote that foreshadowed this appeal, we added
that “[e]ven if we were to agree that Bason was wrongly
decided, we are not at liberty to overturn the holding without
en banc review because it is not dicta.”73
A. The Meaning of “Cases Commenced”
H.R. 6116 did not define “cases commenced.” Bason
therefore focused on the need to construe undefined terms in a
70
Id. at 168.
71
Id. at 167 (citing 48 U.S.C. § 1613 (1994 version));
see 1984 Amendment to Revised Organic Act, title VII, § 704,
98 Stat. at 1739.
72
Fahie, 858 F.3d at 168.
73
Id. at 168 n.8. In Hodge v. Bluebeard’s Castle, Inc.,
62 V.I. 671 (V.I. 2015), a 2015 opinion written by Justice
Maria M. Cabret, the Supreme Court of the Virgin Islands
suggested similar reservations about the result we reached in
Bason. There, the court observed:
President Barack Obama signed H.R. 6116 into
law, ending the Third Circuit’s certiorari
jurisdiction 10 years early. Despite this, the
Third Circuit recently held that the effective
date of this legislation . . . referenced the date a
case was commenced by filing a complaint in
the Superior Court of the Virgin Islands, as
opposed to the date a case is commenced in the
Third Circuit seeking a writ of certiorari to the
Supreme Court of the Virgin Islands.
Id. at 689 n.10 (citing Bason, 767 F.3d at 206).
25
statute “in accordance with [their] ordinary or natural
meaning.”74 In doing so, we first pointed to precedent from the
U.S. Supreme Court and several of our sister circuit courts of
appeals and observed that “[t]he term ‘case’ has generally been
understood to include judicial proceedings of any kind.”75 We
then equated “cause” with “case,” noting that they “are
constantly used as synonyms in statutes . . . , each meaning a
proceeding in court, a suit, or action.”76 Accordingly, we
deduced that “cases commenced” in H.R. 6116 referred to
“case[s] or cause[s] of action . . . ‘when [they are] first brought
in an appropriate court.’”77
In conducting our analysis, we acknowledged the
Virgin Islands government’s argument that, based on U.S.
Supreme Court precedent as well as “the alleged purpose” of
H.R. 6116, the phrase “cases commenced” should be defined
as the filing of a certiorari petition.78 However, we dismissed
that argument without much discussion.79 Yet as the U.S.
Supreme Court has instructed, “[i]t is contrary to the spirit of
74
United States v. Brown, 740 F.3d 145, 149 (3d Cir.
2014) (quoting FDIC v. Meyer, 510 U.S. 471, 476 (1994)),
cited with approval by Bason, 767 F.3d at 206.
75
Bason, 767 F.3d at 206 (emphasis added).
76
Id. (quoting Hohn v. United States, 524 U.S. 236,
241 (1998)) (ellipsis in original) (internal quotations omitted).
77
Id. (citing Pritchett, 420 F.3d at 1094); see also, e.g.,
Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005)
(“In California, as in the federal courts, a suit is ‘commenced’
upon filing.”).
78
Bason, 767 F.3d at 206.
79
See id. at 209 (declining to find the U.S. Supreme
Court’s decision in Slack v. McDaniel, 529 U.S. 473 (2000),
controlling because Slack “did not discuss whether there may
be a meaningful difference between . . . an open-ended and
unmodified provision [like H.R. 6116] and a provision that
refers, for instance, to ‘appellate cases commenced’”); id. at
209 (distinguishing Slack because, unlike H.R. 6116, the
habeas provisions at issue there “did not divest one court of
its jurisdiction and confer such jurisdiction on another
court”).
26
the . . . law itself to apply a rule founded on a particular reason
to a case where that reason utterly fails.”80 Our reliance on the
generally accepted meaning of “cases” rather than focusing on
the reason the legislation was enacted or the specific context in
which the word was used in H.R. 6116, resulted in our adopting
a definition that was not sufficiently tethered to, or informed
by, congressional purpose.
We now conclude that the decision of the U.S. Supreme
Court in Slack v. McDaniel should have more sharply focused
and guided our inquiry in Bason. In Slack, the Court had to
decide whether a provision of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA)81 amending 28 U.S.C. §
2253, a habeas corpus statute, applied to a request for a
“Certificate of Appeal” (COA) from a district court’s denial of
a habeas petition.82 The Court noted that it had already held in
1997 in Lindh v. Murphy83 that “AEDPA’s amendments to 28
U.S.C. § 2254, the statute governing entitlement to habeas
relief in the district court, applied to cases filed after AEDPA’s
effective date.”84 Slack argued that the relevant AEDPA
provision did not apply to him because his habeas petition had
been “commenced in the [d]istrict [c]ourt pre-AEDPA,” i.e.,
before AEDPA imposed new requirements for habeas
petitions.85 The Court disagreed. It held that AEDPA did
apply because Slack had filed his COA request after AEDPA
was enacted.86 The analysis turned on the fact that the
provision Slack’s argument relied upon pertained to
“proceedings in the district courts while [28 U.S.C. § 2253, the
80
Patton v. United States, 281 U.S. 276, 306 (1930)
(quoting Reno Smelting Works v. Stevenson, 21 P. 317, 320
(Nev. 1889), abrogated on other grounds by Williams v.
Florida, 399 U.S. 78 (1970).
81
28 U.S.C. § 2253(c) (1994 ed., Supp. III).
82
Slack, 529 U.S. at 481.
83
521 U.S. 320 (1997).
84
Slack, 529 U.S. at 481 (citing Lindh, 521 U.S. at
327).
85
Id.86
Id. at 482.
27
controlling provision, was] directed to proceedings in the
appellate courts.”87
Slack thus informs our resolution of the meaning of
“cases commenced” in H.R. 6116. As the Court there
explained, “[w]hen Congress instructs . . . that application of a
statute is triggered by the commencement of a case, the
relevant case for a statute directed to appeals is the one initiated
in the appellate court.”88 The Court further explained that
“[w]hile an appeal is a continuation of the litigation started in
the trial court, it is a distinct step. We have described
proceedings in the courts of appeals as ‘appellate cases.’
Under AEDPA, an appellate case is commenced when the
application for a COA is filed.”89
Similarly, H.R. 6116 was enacted to address certiorari
review of decisions of the Supreme Court of the Virgin Islands.
90
The interpretation of “cases commenced” in H.R. 6116 must
therefore focus on appellate cases—cases on certiorari review.
Our analysis in Bason was unduly influenced by reliance on
trial-level cases and trial-level process.91 The resulting
87
Id. at 481.
88
Id. at 482.
89
Id. at 481-82 (citations omitted).
90
Cf. Bason, 767 F.3d at 209 (“[B]ecause [H.R. 6116]
is supposedly directed to proceedings in the Third Circuit, it
would purportedly then apply to proceedings initiated in the
Third Circuit after H.R. 6116’s date of enactment.”).
91
See id. at 207. This portion of Bason cited, for
example, the provision vesting federal district courts with
supplementary jurisdiction in the Judicial Improvements Act
of 1990, Pub. L. No. 101-650, title III, § 310, 104 Stat. 5089,
5114 (codified at 28 U.S.C. § 1367) (“The amendments made
by this section shall apply to civil actions commenced on or
after the date of the enactment of this Act.” (emphasis
added)); the removal jurisdiction provision of the Judicial
Improvements Act of 1985, Pub. L. No. 99-336, § 3(b), 100
Stat. 633, 637 (1986) (codified as amended at 28 U.S.C. §
1441) (“The amendment made by this section shall apply with
respect to claims in civil actions commenced in State courts
on or after the date of the enactment of this section.”
28
conclusion was insufficiently informed by the legislative
purpose of H.R. 6116 and thus inconsistent with the U.S.
Supreme Court’s analysis in Slack.92
B. Similar Jurisdictional Repeals
Interpreting “cases commenced” in H.R. 6116 as the
filing of a petition for certiorari review, as opposed to the filing
of a complaint, is consistent with Congress’s termination of the
certiorari jurisdiction other circuit courts of appeals
temporarily had over the supreme courts of other U.S.
territories.
1. Guam
Congress gave the Court of Appeals for the Ninth
Circuit temporary jurisdiction over appeals from the Supreme
Court of Guam in 1984.93 The relevant statute provided:
[F]or the first fifteen years following the
establishment of the [Supreme Court of Guam],
(emphasis added)); and the provision governing the district
courts’ removal jurisdiction and interlocutory appeals in class
action proceedings in the Class Action Fairness Act of 2005,
Pub. L. No. 109-2, § 9, 119 Stat. 4, 14 (codified as amended
at 28 U.S.C. § 1332) (“The amendments made by this Act
shall apply to any civil action commenced on or after the date
of enactment of this Act.” (emphasis added)). Bason, 767
F.3d at 207.
92
We emphasize that our analysis here is not intended
to necessarily provide guidance on statutes other than H.R.
6116. This includes, but is not limited to, those analogous
provisions in the Antiterrorism and Effective Death Penalty
Act of 1996, codified as amended in scattered sections of 8
U.S.C., 18 U.S.C., 22 U.S.C., 28 U.S.C., and 34 U.S.C.; the
Federal Rules of Appellate Procedure; the Third Circuit
Local Rules; the Third Circuit Internal Operating
Procedures; the Federal Rules of Civil Procedure; and
district-level statutes, such as those embodied in the Class
Action Fairness Act, codified at 28 U.S.C. §§ 1453 and
1711-1715.
93
Act of Oct. 5, 1984, Pub. L. No. 98-454, title VIII, §
801, 98 Stat. 1732, 1742 (current version at 48 U.S.C. § 1424-
2).
29
the United States Court of Appeals for the Ninth
Circuit shall have jurisdiction to review by writ
of certiorari all final decisions of the highest
court of Guam from which a decision could be
had. The Judicial Council of the Ninth Circuit
shall submit reports to the Committee on Energy
and Natural Resources of the Senate and the
Committee on Interior and Insular Affairs of the
House of Representatives at intervals of five
years following the establishment of such
appellate court as to whether it has developed
sufficient institutional traditions to justify direct
review by the Supreme Court of the United
States from all such final decisions.94
Thus, like our own jurisdiction over the Supreme Court of the
Virgin Islands, certiorari jurisdiction of the Court of Appeals
for the Ninth Circuit over the Supreme Court of Guam was
meant to sunset after fifteen years or until the judicial council
of that circuit determined that Guam had “developed sufficient
institutional traditions to justify direct review by the [U.S.]
Supreme Court.”95
Yet in 2004, before the expiration of fifteen years,
Congress amended the law to revoke the jurisdiction of the
Court of Appeals for the Ninth Circuit, just as it revoked our
certiorari jurisdiction in H.R. 6116.96 However, in contrast to
H.R. 6116, in the case of Guam, Congress failed to provide an
effective date for the legislation rescinding certiorari
jurisdiction. The amendment simply struck language that had
authorized the Court of Appeals for the Ninth Circuit to
exercise certiorari review over final decisions of the Supreme
Court of Guam:
94
Id.95
Id.96
See Act of Oct. 30, 2004, Pub. L. No. 108-378, § 2,
118 Stat. 2206, 2208 (current version at 48 U.S.C. § 1424-2)
(striking language in § 1424-2 regarding certiorari jurisdiction
of the Court of Appeals for the Ninth Circuit).
30
Section 22B of the Organic Act of Guam
(48 U.S.C. 1424–2) is amended by striking
“: Provided, That [for the first fifteen years
following the establishment of the appellate
court authorized by section 22A(a) of this Act,
the United States Court of Appeals for the Ninth
Circuit shall have jurisdiction to review by writ
of certiorari all final decisions of the highest
court of Guam from which a decision could be
had. . . .97]” and all that follows through the end
and inserting a period. 98
The Court of Appeals for the Ninth Circuit had to
interpret the scope of that repeal just two years later in Santos
v. Guam.99 There, a certiorari petition had been filed,
calendared, and argued in the Ninth Circuit prior to the
repeal.100 The court therefore had to determine “whether the
jurisdiction previously granted [to the Court of Appeals for the
Ninth Circuit], and existing at the time certiorari was granted,
. . . evaporated upon the enactment date of the repeal, or . . .
continued to exist until the pending appeal could be
decided.”101
As the Court of Appeals explained, “Congress [had]
amended the distribution of appellate jurisdiction in the
Territory of Guam without expressing an intent as to the
effective date of its new statute.”102 In resolving the issue, the
court looked to the U.S. Supreme Court’s 1952 ruling in
Bruner v. United States.103 The court read that case to explain
that “when a jurisdictional statute under which an action had
been properly filed was repealed, without any reservation as to
97
Act of Oct. 5, 1984, title VIII, § 801, 98 Stat. at
1742.
98
Act of Oct. 30, 2004, § 2, 118 Stat. at 2208.
99
436 F.3d 1051 (9th Cir. 2006).
100
Id. at 1052.
101
Id.102
Id. at 1053.
103
343 U.S. 112 (1952).
31
pending cases, all such pending cases were to be dismissed.”104
Because there was “no principled distinction between Bruner’s
jurisdiction-withdrawing statute” and the one revoking
certiorari authority over appeals from the Supreme Court of
Guam, the court reasoned that Congress must have intended
the revocation of jurisdiction to apply to all cases as soon as it
became law.105 Accordingly, the court concluded “Congress
had taken away [its] power to hear” and “to decide the case.”106
Thus, to the extent it is relevant to our inquiry, Santos counsels
in favor of broadly interpreting jurisdictional repeals that do
not contain a savings clause.
This case, is of course, different because Congress did
specify the date that H.R. 6116 was to become effective:
December 28, 2012.107 Defendants thus argue that “Congress
uses specific language to exempt cases already filed in the
appellate court divested of jurisdiction.”108 They suggest that
since the appeals process for this case began in the Virgin
Islands courts before H.R. 6116 became effective, and since
Congress did not specifically exclude appeals pending on its
effective date, the repeal occasioned by H.R. 6116 does not
apply here. However, that argument fails to address the
meaning of “cases commenced” in H.R. 6116. Thus, to accept
it, we would have to ignore the teachings of Slack and thereby
judicially amend H.R. 6116 by reading “cases commenced on
or after December 28, 2012” out of the statute. We decline to
do so.
2. Puerto Rico
We are similarly unpersuaded by attempts to analogize
H.R. 6116 to the revocation of certiorari jurisdiction that the
Court of Appeals for the First Circuit had over final decisions
of the Supreme Court of Puerto Rico.
Congress gave the Court of Appeals for the First Circuit
temporary certiorari jurisdiction over appeals from the
104
Santos, 436 F.3d. at 1052 (citing Bruner, 343 U.S.
at 115-17).
105
Id. at 1053.
106
Id.
107
H.R. 6116, § 3, 126 Stat. at 1607.
108
Pet’r’s’ Suppl. Br. 7.
32
Supreme Court of Puerto Rico in 1948.109 Unlike the Revised
Organic Act provision pertaining to decisions of the Supreme
Court of the Virgin Islands or the statute giving the Court of
Appeals for the Ninth Circuit jurisdiction over decisions of the
Supreme Court of Guam, the law vesting the Court of Appeals
for the First Circuit with jurisdiction over the Supreme Court
of Puerto Rico contained no sunset provision. Rather, it stated,
in relevant part:
The court[] of appeals for the First . . . Circuit[]
shall have jurisdiction of appeals from all final
decisions of the supreme court[] of Puerto Rico .
. . in all cases involving the Constitution, laws or
treaties of the United States or any authority
exercised thereunder, in all habeas corpus
proceedings, and in all other civil cases where
the value in controversy exceeds $5,000,
exclusive of interest and costs. 110
Nevertheless, Congress enacted legislation in 1961 that
repealed that certiorari jurisdiction. That legislation simply
stated:
Section 1293 of title 28, United States Code, is repealed:
Provided, That such repeal shall not deprive the Court
of Appeals
for the First Circuit of jurisdiction to hear and determine
appeals
taken to that court from the Supreme Court of Puerto
Rico before
the effective date of this Act.111
Thus, Congress expressly included a savings clause preserving
certiorari authority “over appeals taken to that Court from the
109
Act of June 25, 1948, ch. 646, § 1293, 62 Stat. 929,
929 (previously codified at 28 U.S.C. § 1293) (repealed
1961).
110
Id.111
Act of Aug. 30, 1961, Pub. L. No. 87-189, § 3, 75
Stat. 417, 417 (1961) (codified as amended at 28 U.S.C. §
1258).
33
Supreme Court of Puerto Rico before the effective date of [the]
Act.”112
In Bason, we focused on that distinction. We explained:
When Congress stripped the [Court of Appeals
for the] First Circuit of its jurisdiction over the
Puerto Rico Supreme Court, it expressly stated
that “such repeal shall not deprive the Court of
Appeals of jurisdiction to hear and determine
appeals taken to that court from the Supreme
Court of Puerto Rico before the effective date of
this Act.”113
....
In H.R. 6116, Congress took a different
approach . . . . Instead of enacting an exception
reserving our jurisdiction over “pending
appeals” (or even “pending cases”), Congress
chose to make it clear that it is the jurisdiction-
stripping (and jurisdiction-conferring)
legislation itself that only applies to “cases
commenced” on or after the enactment date.114
Thus, Defendants now understandably argue that
Congress’s failure to similarly limit H.R. 6116 to “appeals”
commenced on or after the effective date must mean that
Congress did not intend any such limitation. In other words,
Defendants argue that Congress must have meant “cases” in
the generally understood sense. That definition would
presumptively include any litigation (i.e., “case”) commenced
by filing a complaint in the Superior Court of the Virgin Islands
after December 28, 2012, the date H.R. 6116 became effective.
However, as we have already explained, that argument ignores
the U.S. Supreme Court’s guidance regarding how we should
interpret “cases” in a statute applying only to appeals. As the
Court explained in Slack, an appeal is its own “case” for
purposes of such statutes. 115 Therefore we will no longer
112
Id. (emphasis added).
113
Id.114
Bason, 767 F.3d at 206-07.
115
See Slack, 529 U.S. at 482.
34
assume Congress used “cases” in H.R. 6116 as that word is
generally understood.116 Moreover, aside from Bason, no
federal appellate court has interpreted the effective date of a
certiorari-stripping statute as an implicit jurisdictional
reservation of appellate jurisdiction over cases at the trial level,
absent specific language to that effect.
C. Practical Effects
Moreover, although we cited in Bason our Court’s
statement in a previous case that we should not “blindly”
construe undefined statutory terms, we did not heed that
admonition.117 We did not consider whether “the whole
legislation, . . . the circumstances surrounding [H.R. 6116’s]
enactment, or . . . the absurd results which follow from giving
such broad meaning to the words, makes it unreasonable to
believe that the legislator intended to include the particular
act.”118 We realize, of course, that our interpretation of a
statute should not unduly focus on its impact on pending
litigation. However, the practical consequences of a given
interpretation can help inform an inquiry into congressional
intent. As the U.S. Supreme Court instructed in Griffin v.
Oceanic Contractors, Inc., “interpretations of a statute which
would produce absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose are
available.”119 It is therefore appropriate to consider “the
116
See id. at 481 (“While an appeal is a continuation of
the litigation started in the trial court, it is a distinct step.”).
117
Bason, 767 F.3d at 206 (citing Brown, 740 F.3d at
149).
118
Holy Trinity Church v. United States, 143 U.S. 457,
459 (1892).
119
458 U.S. 564, 575 (1982); see also Comm’r of
Internal Revenue v. Brown, 380 U.S. 563, 571 (1965) (“[I]n
interpreting a statute, [a court has] ‘some scope for adopting a
restricted rather than a literal or usual meaning of its words
where acceptance of that meaning would lead to absurd
results . . . or would thwart the obvious purpose of the
statute.’ But it is otherwise ‘where no such consequences
[would] follow and where . . . it appears to be consonant with
the purposes of the Act.’” (ellipses and alteration in original)
35
specific context in which that language is used, and the broader
context of the statute as a whole,” if we are to “avoid
constructions that produce ‘odd’ or ‘absurd results’ or that are
‘inconsistent with common sense.’”120
H.R. 6116 was enacted for the sole purpose of
rescinding our certiorari jurisdiction over appeals from the
Supreme Court of the Virgin Islands. As noted earlier, the
Revised Organic Act established a maximum period of fifteen
years for us to exercise certiorari review.121 That window was
created to allow the new Supreme Court of the Virgin Islands
(citations omitted) (quoting Helvering v. Hammel, 311 U.S.
504, 510-11 (1941)); In re Magic Restaurants, Inc., 205 F.3d
108, 116 (3d Cir. 2000) (“Even where the express language of
a statute appears unambiguous, a court must look beyond that
plain language where a literal interpretation of this language
would thwart the purpose of the overall statutory scheme,
would lead to an absurd result, or would otherwise produce a
result ‘demonstrably at odds with the intentions of the
drafters.’” (citation omitted) (quoting Demarest v.
Manspeaker, 498 U.S. 184, 190 (1991)); United States v.
Schneider, 14 F.3d 876, 880 (3d Cir.1994) (“It is the
obligation of the court to construe a statute to avoid absurd
results, if alternative interpretations are available and
consistent with the legislative purpose.”).
120
Disabled in Action of Pa. v. Se. Pa. Transp. Auth.,
539 F.3d 199, 210 (3d Cir. 2008) (internal quotations
omitted) (quoting In re Price, 370 F.3d 362, 369 (3d Cir.
2004)); see also Long v. Tommy Hilfiger U.S.A., Inc., 671
F.3d 371, 374-75 (3d Cir. 2012) (“In analyzing whether the
statutory language is unambiguous, ‘we take account of the
specific context in which that language is used, and the
broader context of the statute as a whole.’” (quoting Disabled
in Action of Pa., 539 F.39 at 210)).
121
See 48 U.S.C. § 1613 (1994 version); see also 158
Cong. Rec. H6354 (daily ed. Nov. 14, 2012) (statement of
Rep. Bobby Scott) (“The Revised Organic Act specifically
grants the [T]hird [C]ircuit appellate jurisdiction for the first
15 years of the Virgin Islands Supreme Court’s existence.”
(emphasis added)).
36
to “develop[] . . . institutional traditions” sufficient to justify
direct U.S. Supreme Court review.122
A committee of our Court found that the Supreme Court
of the Virgin Islands had demonstrated such sufficiency in less
than fifteen years,123 and within a year of our Judicial Council
unanimously approving that committee’s report, Congress
enacted H.R. 6116 in recognition of that finding. This was a
momentous occasion in the history of the Virgin Islands
judicial system. One congresswoman characterized H.R. 6116
as a “historic milestone” demarcating “the verge of
accomplishing the final goal of making the U.S. Virgin Islands
Supreme Court just like all other [s]tate supreme courts.”124
Perpetuating our certiorari review by extending it to all suits
initiated in the Virgin Islands judicial system before H.R. 6116
was enacted is contrary to our recognition of the institutional
competence of the Supreme Court of the Virgin Islands and the
excellence of its jurisprudence.
Linking the “commence[ment]” of an appeal from the
Supreme Court of the Virgin Islands to the filing of a complaint
for purposes of our certiorari authority retains that authority
beyond the fifteen years Congress originally set for it. The
Virgin Islands Bar Association has represented without
contradiction that, as of 2014, there were over 6,000 pending
cases in the Virgin Islands courts, each taking an average of ten
years for adjudication.125 There is therefore a mounting
backlog of cases in the Virgin Islands courts.126
122
1984 Amendment to Revised Organic Act, title VII,
§ 704, 98 Stat. at 1739.
123
Third Circuit Judicial Council Report, supra note
51, at 23.
124
158 Cong. Rec. H6354-55 (daily ed. Nov. 14, 2012)
(statement of Del. Donna Christian-Christensen).
125
See Fahie, 858 F.3d at 167 n.6.
126
Amicus Companion Insurance Company urges that
to the extent there is any “backlog” in the Virgin Islands
courts, it is an apocryphal one. Br. of Amicus Curiae
Companion Ins. Co. 2-3. Yet it is undeniable, even with the
data Companion provides, that the “backlog” is increasing.
37
This very case illustrates the likelihood that a large
number of the now-pending cases will not be resolved for years
to come. This complaint was filed in 2005, but the claims only
reached the Supreme Court of the Virgin Islands on appeal in
2015, ten years later. The Supreme Court of the Virgin Islands
issued its decision in this case a year later, in 2016, and we
granted the petition for certiorari in 2017, nearly twelve years
after the case had originally been filed. It is therefore highly
likely that interpreting H.R. 6116 to include all suits filed
before H.R. 6116’s effective date of December 28, 2012,
would extend our certiorari review over a significant number
of cases through at least December 2022. Not only would this
be ten years past the effective date of H.R. 6116, but it would
also be eighteen years after the creation of the Supreme Court
of the Virgin Islands and a full three years beyond the fifteen-
year period Congress initially set for our certiorari jurisdiction
to end. Yet, it is beyond dispute that Congress intended H.R.
6116 to terminate our certiorari review, not prolong it.
We are, of course, aware of the concern expressed in
Bason that it would be unjust for us not to retain jurisdiction
over cases filed in the Superior Court of the Virgin Islands
before the effective date of H.R. 6116 given the parties’
expectations before that legislation was enacted.127 However,
we question the reasonableness of any such expectations. As
we have already noted, H.R. 6116 contained no express
savings clause or other instruction as to non-appellate cases
commenced before H.R. 6116’s effective date. Moreover,
nothing in the Revised Organic Act, the 1984 Amendments
thereto, or subsequent enactments of the Virgin Islands
See id. at 3 (showing increases in the V.I. judiciary caseload
in 2016 over both 2014 and 2015).
127
See Bason, 767 F.3d at 210 (“[L]ike litigants who
filed their certiorari petitions before December 28, 2012,
parties who were in the midst of litigating a proceeding in the
Virgin Islands courts could have reasonably expected that
they would have the right to file a petition for certiorari with
the Third Circuit and, at the very least, possibly obtain further
review with respect to questions of Virgin Islands law (which
would otherwise not be available in the Supreme Court).”).
38
legislature gave anyone reason to believe that our certiorari
jurisdiction would continue until a given appeal is ultimately
decided. Rather, our certiorari jurisdiction was always to be of
relatively short duration.
Moreover, as we have explained, the Revised Organic
Act clearly provided for our certiorari jurisdiction to end well
before the fifteen years Congress initially allowed for its
exercise.128 Attorneys and litigants therefore had no reason to
assume that we would continue to have authority to review any
final order of the Supreme Court of the Virgin Islands until
their case was ultimately resolved. That was particularly true
after the passage of H.R. 6116.129 In addition, litigants were
128
1984 Amendment to Revised Organic Act, title VII,
§ 704, 98 Stat. at 1739; 48 U.S.C. § 1613 (1994 version).
129
Amicus Companion Insurance Company wishes to
obtain review of an adverse decision by the Supreme Court of
the Virgin Islands that is based on Virgin Islands law.
Companion Ins. Co. Br., at v. It states that a “key factor” in
its decision to appeal the case through the Virgin Islands
courts “was the availability of potential certiorari review by
this Court if the V.I. Supreme Court’s decision was adverse.”
Id. at vi.
Companion’s reliance on our certiorari review was
misplaced for two reasons. First, the very passage of H.R.
6116—having occurred six years ago confirms Congress’s
conclusion that the Virgin Islands judiciary warrants
treatment “just like every high court in the States and
territories,” 158 Cong. Rec. H6354 (daily ed. Nov. 14, 2012)
(statement of Del. Christensen), and state supreme courts are
the final arbiters of matters of state law.
Second, we have long held that we defer to the
Supreme Court of the Virgin Islands in matters of local law
because that “best ensures that [we] can perform the role
given to us by Congress[] to nurture the development of
‘sufficient institutional traditions to justify direct review by
the Supreme Court of the United States.’” Pichardo, 613
F.3d at 97 (quoting 48 U.S.C. § 1613 (1994 version)). Our
very infrequent grants of certiorari review have rarely
resulted in reversals in the area of local law. We have
39
forewarned because, even before H.R. 6116 was enacted,
Congress had amended similar statutory schemes in order to
divest other federal circuit courts of appeals of jurisdiction to
review even pending appeals from the local courts of other U.S.
territories.130, 131
overturned or vacated a decision of the Supreme Court of the
Virgin Islands only twice since that court was created.
Neither of those cases appears to have impacted local
jurisprudence. Once was in Bason itself, which we now
overturn. Bason, 767 F.3d at 214-16 (vacating the opinion of
the court to the extent it addressed the moot issue of the
reinstatement of the deceased petitioner). The second
instance occurred in the very limited context of a contained
local political dispute. In re Kendall, 712 F.3d 814, 816 (3d
Cir. 2013) (Kendall II) (reversing the court’s convictions of a
judge of the Superior Court of the Virgin Islands for indirect
criminal contempt after he published a judicial opinion
chastising the court).
130
See Act of Oct. 30, 2004, § 2, 118 Stat. at 2208
(transferring certiorari jurisdiction over decisions of the
Supreme Court of Guam from the Court of Appeals for the
Ninth Circuit and to the U.S. Supreme Court); Santos, 436
F.3d at 1053-54 (deciding, pursuant to Act of Oct. 30, 2004, §
2, 118 Stat. at 2208, that the Court of Appeals for the Ninth
Circuit had no further jurisdiction to review decisions of the
Supreme Court of Guam, including those that had been
pending at the time of enactment).
131
Our holding is also consistent with our general
avoidance of retroactivity in interpreting statutes. Absent
clear congressional intent to the contrary, we normally
interpret statutes with the presumption that they do not apply
retroactively, i.e., to cases pending on the date of the law’s
enactment. Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006).
But as we clarified in Kendall I, this presumption against
retroactivity does not apply to H.R. 6116 because such a
“jurisdiction-stripping statute usually ‘takes away no
substantive right but simply changes the tribunal that is to
hear the case.’” Kendall I, 716 F.3d at 87 (quoting Hamdan,
548 U.S. at 577).
40
IV. CONCLUSION
In Bason, we acknowledged that the Supreme Court of
the Virgin Islands had “succeeded in developing sufficient
institutional traditions to justify . . . direct review” by the U.S.
Supreme Court.132 Not only have we recognized that court’s
maturity and commended its development and jurisprudence,
but our Third Circuit Judicial Council also recommended that
our jurisdiction be withdrawn and that the Supreme Court of
the Virgin Islands “enjoy the same relationship with the
Supreme Court of the United States as do the highest courts of
the several States.” 133
For all the reasons that we have stated, we now hold that
H.R. 6116 terminated our jurisdiction over all certiorari
petitions from final decisions of the Supreme Court of the
Virgin Islands if those petitions were filed on or after
December 28, 2012. Having determined that we are without
jurisdiction to review this case, we will dismiss the petition for
writ of certiorari.134
132
Bason, 767 F.3d at 210.
133
Third Circuit Judicial Council Report, supra note
51, at 23.
41
BIBAS, Circuit Judge, dissenting.
The majority reads H.R. 6116 as providing that the filing of
a certiorari petition commences a case and so deprives us of
jurisdiction over that case. I cannot agree. Under the majority’s
interpretation, we have certiorari jurisdiction over final judg-
ments of the Supreme Court of the Virgin Islands—up until the
moment a litigant asks us to exercise that jurisdiction. That is
not what H.R. 6116 says.
“A civil action is commenced by filing a complaint with the
[trial] court,” not by filing a certiorari petition. Fed. R. Civ. P.
3. The case is the entire civil action, not just the certiorari stage.
As the majority’s legislative survey illustrates, Congress dis-
tinguishes among “cases,” “appeals,” and “writs of certiorari.”
And it does so in statutes generally, appellate statutes, appellate
statutes governing territorial jurisdiction, and statutes (going
back to 1917) governing jurisdiction over the Virgin Islands.
Nor can I agree that Bason’s reading would perpetuate our
certiorari jurisdiction beyond the fifteen years specified by
Congress. If H.R. 6116 applies to a case, then our jurisdiction
over that case ends immediately. I see no way to read the stat-
ute that would preserve our jurisdiction beyond “fifteen years
following the establishment” of the Supreme Court of the Vir-
gin Islands. 48 U.S.C. § 1613 (1994).
I would also not venture into the quicksand of legislative
history, or speculate about legislative purpose. The text is
clear. And stare decisis is a weighty concern, both generally
and for litigants in the pipeline who relied on Bason. So I
would adhere to Bason’s reading of H.R. 6116 and hold that
we have jurisdiction here.
I respectfully dissent.