The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-1247
_____________
UNITED INDUSTRIAL, SERVICE, TRANSPORTATION,
PROFESSIONAL AND GOVERNMENT WORKERS
OF NORTH AMERICA SEAFARERS INTERNATIONAL
UNION, ON BEHALF OF ERNEST BASON,
Petitioner
v.
GOVERNMENT OF THE VIRGIN ISLANDS
_______________
On Writ of Certiorari to the Supreme Court
of the Virgin Islands
(V.I. S. Ct. Civ. No.: 2011-0115)
_______________
Argued December 10, 2013
BEFORE: FISHER, COWEN AND NYGAARD, Circuit
Judges
(Filed: March 19, 2014)
Namosha Boykin, Esq. (Argued)
Amos W. Carty, Jr., Esq.
Pedro K. Williams, Esq.
5212 Wimmelskafts Gade
St. Thomas, VI 00802
Counsel for Petitioner
Joss N. Springette, Esq. (Argued)
Office of Collective Bargaining
3438 Kronprindsens Gade
Second Floor
St. Thomas, VI 00802
Counsel for Respondent
_______________
OPINION
_______________
COWEN, Circuit Judge.
This matter comes before us on a petition for a writ of
certiorari filed by the United Industrial, Service,
Transportation, Professional and Government Workers of
North America Seafarers Union (“Union”) on behalf of
Ernest Bason, Esq., asking us to review a decision by the
Virgin Islands Supreme Court. On December 28, 2012, the
President signed H.R. 6116, “a bill that would eliminate our
certiorari jurisdiction over final decisions of the Virgin
Islands Supreme Court and replace it with direct review by
2
the Supreme Court of the United States.” Kendall v. Daily
News Publ’g Co., 716 F.3d 82, 86 (3d Cir. 2013) (citation
omitted) (“Kendall I”). We conclude that we retain certiorari
jurisdiction over proceedings that were filed in the Virgin
Islands courts before the date of enactment of H.R. 6116.
Although we thereby still possess certiorari jurisdiction with
respect to the proceedings filed by the Union and the
Government of the Virgin Islands in the Virgin Islands
Superior Court, we nevertheless must dismiss the Union’s
certiorari petition as moot. Accordingly, we cannot—and do
not—reach the question of “whether title 24, section 374(a) of
the Virgin Islands Code is harmonious with title 3, section
113(a) of the Virgin Islands Code.”
I.
Ernest F. Bason, Esq., was employed as an Assistant
Attorney General with the Virgin Islands Department of
Justice. Most Assistant Attorneys General, including Bason,
were subject to a collective bargaining agreement, and the
Union served as their exclusive bargaining representative. In
a July 1, 2010 letter, the Virgin Islands Attorney General
informed Bason that he intended to impose a suspension and
to terminate his employment. The Union filed a grievance on
Bason’s behalf challenging this action. In a letter dated July
23, 2010, the Governor of the Virgin Islands accepted the
Attorney General’s recommendation and approved Bason’s
immediate termination. Withdrawing the previous grievance,
the Union submitted a second grievance on behalf of Bason
challenging the Governor’s decision. The second grievance
went to arbitration. On January 2, 2011, the Arbitrator
3
entered an award determining that the underlying grievance
was arbitrable and properly before him for resolution. He
issued his final award and opinion on April 29, 2011,
specifically finding that the Governor lacked just cause to
remove Bason. In addition, the Arbitrator awarded the
following remedy:
The Arbitrator awards the Grievant immediate
reinstatement to his previous employment as an
Assistant Attorney General and the immediate
restoration of all emoluments associated with
his employment as an Assistant Attorney
General, including without limitation, all related
benefits and seniority effective July 1, 2010 and
back pay for the period between the termination
of the Suspension imposed by the Attorney
General in his June 7, 2010 letter to the
Grievant (J-#4) and the Employer’s actual
reinstatement of the Grievant to his employment
as an Assistant Attorney General pursuant to
this Award.
(Id.)
On May 9, 2011, the Government of the Virgin Islands
filed a complaint in the Virgin Islands Superior Court (No.
ST-11-CV-308). The Government asked the Virgin Islands
Superior Court to vacate the arbitration award and to enter a
declaratory judgment providing that the Virgin Islands Justice
Department had no obligation to reinstate Bason. Acting on
Bason’s behalf, the Union filed its own complaint on June 7,
4
2011 (and the Government, in turn, filed a counterclaim) (No.
ST-11-CV-364). The Union asked the Virgin Islands
Superior Court to confirm the arbitration award. The Virgin
Islands Superior Court consolidated the two cases. The
parties filed summary judgment motions (and the Union also
filed motions to dismiss and to confirm the arbitration award).
On December 13, 2011, the Virgin Islands Superior
Court granted in part and denied in part the motions filed by
the Union and the Government. In its judgment, the Virgin
Islands Superior Court vacated the April 29, 2011 arbitration
award “but only to the extent that it grants relief prior to July
23, 2010” and ordered “that judgment is entered in Case No.
ST-11-CV-308 in favor of the Government on Count IV of its
Verified Complaint to this extent only.” (A34.) It likewise
entered judgment in the Government’s favor as to Count IV
of its counterclaim “to this extent only.” (Id.) The Virgin
Islands Superior Court confirmed the arbitration award “in all
other respects” and thereby ordered judgment to be entered to
this extent “in favor of the Union in Case No. ST-11-CV-364
on its Action to Confirm an Arbitration Award.” (Id.) It was
ordered, adjudged, and decreed that:
. . . Ernest F. Bason, Esquire is
IMMEDIATELY REINSTATED as an
assistant attorney general in the Virgin Islands
Department of Justice, Office of the Attorney
General, with the immediate restoration of all
employment benefits, seniority, and other
emoluments of employment effective July 23,
5
2010, and back pay from July 23, 2010 to the
date of his actual reinstatement . . .
(Id.)
In its accompanying opinion, the Virgin Islands
Superior Court considered the Government’s two theories for
relief: (1) that the Arbitrator exceeded his authority when he
ruled that the Union’s grievance was timely filed; and (2) that
“the arbitrator’s decision to reinstate Attorney Bason violates
the public policy that assistant attorneys general can be fired
by the Governor without cause.” Gov’t of the V.I. v. UIW-
SIU, Nos. ST-11-CV-308, ST-11-CV-364, 2011 WL
6936479, at *3 (V.I. Super. Ct. Dec. 12, 2011). According to
the Virgin Islands Superior Court, the Arbitrator exceeded his
authority by granting any relief based on the July 1, 2010
letter (or a June 7, 2010 letter imposing a suspension) because
the Union withdrew its grievance as to the July 1, 2010 action
(and never filed a grievance with respect to the June 7, 2010
suspension). “Therefore, the award must be vacated to the
extent that it awards any relief to Attorney Bason prior to July
23, 2010.” Id. at *5. With respect to the government’s
second theory, the Virgin Islands Superior Court concluded
that “[t]he arbitrator’s decision to reinstate Bason is not
contrary to Virgin Islands public policy.” Id. at *7 (emphasis
omitted). “Therefore, the Court will confirm the immediate
reinstatement of Ernest Bason, Esquire as an assistant
attorney general with the Virgin Islands Department of
Justice, Office of the Attorney General, with all benefits,
seniority, and back pay retroactive to July 23, 2010.” Id. at
*9.
6
On December 16, 2011, the Government notified the
Virgin Islands Superior Court of Bason’s reinstatement, i.e.,
he was directed to report to work on December 19, 2011. It
also filed a notice of appeal on December 20, 2011, appealing
from the opinion and judgment to the Virgin Islands Supreme
Court. On March 15, 2012, the Virgin Islands Superior Court
denied the Government’s motion for a stay of the portion of
the judgment ordering the Government to pay back pay as
well as the Union’s motion for contempt and sanctions on
account of the Government’s alleged failure to pay the
requisite back pay.
The Union also moved to dismiss the Government’s
appeal. According to the Union, the Virgin Islands Supreme
Court lacked appellate jurisdiction because neither the Virgin
Islands Superior Court nor the Arbitrator ever established the
amount of back pay owed to Bason and because the absence
of a clear monetary judgment “renders the December 13,
2011 Opinion and Judgment non-final for purposes of section
32 of title 4 [of the Virgin Islands Code].” Gov’t of the
Virgin Islands v. UIW-SIU, S. Ct. Civ. No. 2011-0115, 2012
WL 5901921, at *3 (V.I. Nov. 26, 2012). “As more fully
explained in the motion to dismiss, the failure to calculate the
specific amount of back pay owed to Bason became relevant
since it caused the Superior Court, in a March 15, 2012
Order, to deny the UIW-SIU’s motion to hold the
Government in civil contempt.” Id. at *3 n.2. The parties
were directed to submit supplemental briefing on this
jurisdictional issue. On September 10, 2012, the Virgin
Islands Supreme Court denied as moot the Government’s
motion to stay the back pay portion of the judgment, noting
7
that no monetary judgment had been entered and that the
Government had never requested a stay of the portion of the
judgment ordering Bason’s reinstatement.
After hearing oral argument, the Virgin Islands
Supreme Court disposed of the Government’s appeal in an
order and opinion entered on November 26, 2012. In short, it
reversed “the portion of the decision which mandated Bason’s
reinstatement.” Id. at *1.
Accordingly, the Virgin Islands Supreme Court stated
in its order that “the portion of the Superior Court’s
December 13, 2011 Opinion and Judgment which authorizes
Ernest Bason’s reinstatement as an Assistant Attorney
General is REVERSED” and that “the instant appeal is
DISMISSED with respect to all issues.” (A21-A22.)
Furthermore, the matter was ordered remanded, and “the
Superior Court is directed to issue a final judgment consistent
with this Opinion.” (A22.)
In the accompanying opinion, the Virgin Islands
Supreme Court began with the threshold question of appellate
jurisdiction. Title 4, section 32(a) of the Virgin Islands Code
embodies “the final judgment rule,” which generally requires
a party “‘to raise all claims of error in a single appeal
following final judgment on the merits.’” Id. at *3 (quoting
Bryant v. People, 53 V.I. 395, 400 (V.I. 2010)). Both parties
recognized that the December 13, 2011 opinion and judgment
did not “technically” constitute a final order because neither
the Virgin Islands Superior Court nor the Arbitrator
calculated the amount of back pay the Government must
8
remit to Bason. Id. The Government proceeded to invoke the
practical finality rule permitting an appellate court to review
an order that resolves all non-ministerial issues, but the Union
claimed that the back pay calculation “is not a purely
mechanical task” due to the parties’ disagreement as to the
amount. Id. As an alternative basis for appellate jurisdiction,
the Government claimed that the opinion and judgment
mandating Bason’s immediate reinstatement constituted an
appealable injunction under title 4, section 33(b)(1) of the
Virgin Islands Code.
According to the Virgin Islands Supreme Court, “[t]he
UIW-SIU is correct that the parties’ dispute as to how the
Superior Court should calculate any monetary damages
ultimately awarded to Bason precludes us from exercising
jurisdiction under the practical finality rule.” Id. (citing Hard
Rock Cafe v. Lee, 54 V.I. 622, 627 n.6 (V.I. 2011)).
However, it also agreed with the Government’s alternative
theory that an order mandating immediate reinstatement
constitutes an appealable injunction. The Union requested
Bason’s reinstatement, and the Virgin Islands Superior Court
could have used its contempt powers if the Government had
refused to reinstate him within the requisite time period.
“Accordingly, we possess jurisdiction over this appeal, but
only with respect to the Superior Court’s directive that the
Government reinstate Bason.” Id.
Turning to the merits, the Virgin Islands Supreme
Court determined that the portion of the Virgin Islands
Superior Court’s opinion and judgment ordering the
reinstatement of Bason must be reversed. “The UIW-SIU
9
concedes that, under Section 11 of the Revised Organic Act
of 1954, the Governor ‘may remove[ ] all officers and
employees of the executive branch of the government of the
Virgin Islands, except as otherwise provided . . . under the
laws of the Virgin Islands, 48 U.S.C. § 1591, and that the
Virgin Islands Code authorizes the Governor to remove an
Assistant Attorney General. See V.I.C. § 113 (‘The Assistant
Attorneys General shall be appointed by the Governor, and
shall hold office during the continuance in office of the
Governor . . . unless sooner removed by the Governor.’).” Id.
at *4. “Assuming without deciding that Assistant Attorneys
General may unionize pursuant to chapter 14 of title 24 (24
V.I.C. § 361 et seq.)—as the Superior Court found in its
December 13, 2011 Opinion—their right to do so is not
unlimited.” Id. at *5 (footnotes omitted). Title 24, section
374 “expressly provides that ‘[r]ates of pay, hours, salaries,
employee benefits, terms and conditions of employment and
all matters relating thereto may be specifically negotiated in a
collective bargaining proceeding between the public
employer and the exclusive representative unless otherwise
specifically restricted by law.’” Id. Although the Union
attempted to harmonize section 113 and the collective
bargaining agreement by arguing that the agreement simply
prescribes the manner and conditions by which terminations
may take place, “this Court disagrees that any harmonization
is possible with respect to the reinstatement provisions.” Id.;
see also, e.g., id. (“Given that section 113 actually mandates
automatic discharges of Assistant Attorneys General without
cause at the conclusion of a Governor’s term, it is not clear to
this Court how the provisions of the collective bargaining
agreement which permit reinstatement by an arbitrator of an
10
Assistant Attorney General discharged without just cause can
in any way be reconciled with the statutory enactment.”)
In the end, the Virgin Islands Supreme Court
concluded that:
Since the portion of the December 13,
2011 Opinion and Judgment mandating Bason’s
reinstatement constituted an appealable
injunction, this Court possesses jurisdiction
over that portion of the underlying order
pursuant to section 33(b)(1) of title 4. As to the
merits, to the extent Assistant Attorneys
General may unionize pursuant to title 24,
chapter 14, we hold that section 113 of title 3
precluded the arbitrator and the Superior Court
from mandating that the Government reinstate
Bason as an Assistant Attorney General.
Accordingly, we reverse the portion of the
December 13, 2011 Opinion and Judgment that
authorizes Bason’s reinstatement as an
Assistant Attorney General, and direct the
Superior Court, on remand, to issue a final
judgment which is consistent with this Opinion.
Id.
On November 30, 2012, the Union filed a motion with
the Virgin Islands Supreme Court to stay enforcement of the
judgment pending the filing of an application for a writ of
certiorari in this Court. By December 13, 2012, Congress
11
passed H.R. 6116, which in short “would eliminate our
certiorari jurisdiction over final decisions of the Virgin
Islands Supreme Court and replace it with direct review by
the Supreme Court of the United States.” Kendall I, 716 F.3d
at 86 (citation omitted). The President of the United States
signed H.R. 6116 into law on December 28, 2012. Section 3
of this legislation expressly provides that “[t]he amendments
made by this Act apply to cases commenced on or after the
date of the enactment of this Act.” On December 21, 2012,
the Union filed a motion asking the Virgin Islands Supreme
Court to render an advisory opinion on the following
question: “Whether H.R. 6116 applies to all cases
commenced at the trial level on or after its enactment or only
to appeals from decisions or orders of this court commenced
on or after the date of enactment.” (12/21/12 Motion at 1
(emphasis omitted).) The Union also filed a motion
requesting certified docket entries. On January 15, 2013, the
Virgin Islands Supreme Court issued its mandate and denied
all three motions. It noted that the Government’s appeal
constituted an interlocutory appeal from the issuance of an
injunction and that it never enjoined the Virgin Islands
Superior Court from conducting any proceedings during the
pendency of the appeal. Furthermore, mere monetary loss
resulting from loss of employment did not constitute good
cause for a stay because “Appellee would be entitled to
receive back pay in the event Appellee’s certiorari petition is
granted and this Court’s November 26, 2012 Opinion
ultimately reversed.” (1/15/13 Order at 2 (citation omitted).)
On remand to the Virgin Islands Superior Court, the
Union filed a motion to stay, while the government moved for
12
issuance of a final judgment. The Virgin Islands Superior
Court heard oral argument on these motions on May 30,
2013. To date, the parties’ respective motions are still
pending.
On January 25, 2013, the Union filed a petition for a
writ of certiorari with this Court. On March 8, 2013, the
Clerk issued an order noting that this Court had just filed an
opinion in Kendall v. Daily News Publishing Co., “addressing
the issue of jurisdiction over petitions for certiorari after the
passage of HR 6116.” (3/18/13 Order at 1.) The parties were
given the opportunity to file jurisdictional submissions, which
they both did.
This Court filed the following order on April 24, 2013:
The foregoing petition for a writ of certiorari
will not be dismissed for lack of jurisdiction on
the basis of H.R. 6116, Pub. L. 112-226, at this
time. The petition is granted as to the first
question presented – i.e., whether title 24,
section 374(a) of the Virgin Islands Code is
harmonious with title 3, section 113(a) of the
Virgin Islands Code. In addition to such
arguments as the parties wish to raise on that
issue, the parties are directed to address whether
the Virgin Islands Supreme Court’s decision is
a “final decision” within the meaning of former
48 U.S.C. § 1613 (1994), in light of that court’s
remand to the Virgin Islands Superior Court.
See generally Defoe v. Philip, 702 F.3d 735,
13
740-41 (3d Cir. 2012). Our decision not to
dismiss this petition at this time does not
represent a ruling that this Court retains
jurisdiction over this petition under H.R. 6116,
Pub. L. 112-226. That issue will be decided if
necessary by the panel of this Court that
considers this appeal on the merits.
(4/24/13 Order at 2.)
After briefing was concluded, the Union filed a
suggestion of death pursuant to Federal Rule of Appellate
Procedure 43(a)(1). It notified this Court “that on or about
April 4, 2012 nominal appellant Attorney Ernest Bason
passed away.” (Suggestion of Death at 1.) We asked the
Union and the Government to file letter submissions
addressing the possible effect of Bason’s death on our
jurisdiction and whether “this matter is now moot because
Mr. Bason cannot be reinstated to his position as an Assistant
Attorney General.” (10/17/13 Letter at 1.) Both parties did
so.
II.
This proceeding presents us with two threshold
questions: (1) whether we retain certiorari jurisdiction over
proceedings that were filed in the Virgin Islands courts before
the date of enactment of H.R. 6116; and (2) even if we
thereby retain certiorari jurisdiction in the present
circumstances under H.R. 6116, whether Bason’s death moots
the current certiorari proceeding. While we conclude that we
14
still possess certiorari jurisdiction over proceedings that were
filed in the Virgin Islands courts before H.R. 6116’s
enactment date, we will nevertheless dismiss the Union’s
certiorari petition as moot on account of Bason’s death.
Accordingly, we cannot—and do not—reach the question of
“whether title 24, section 374(a) of the Virgin Islands Code is
harmonious with title 3, section 113(a) of the Virgin Islands
Code.” 1
A. H.R. 6116
In 1984, Congress authorized the Legislature of the
Virgin Islands to establish an appellate court for the Virgin
Islands. See, e.g., Kendall I, 716 F.3d at 86. In 2004, the
legislature created the Supreme Court of the Virgin Islands,
which began to exercise its judicial functions in 2007. See,
e.g., Defoe, 702 F.3d at 738-39. “[A]s set out in 48 U.S.C. §
1613, we have certiorari jurisdiction over the Virgin Islands
Supreme Court: ‘[F]or the first fifteen years following the
establishment of the appellate court authorized by section
1611(a) of this title, the United States 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.’” Id. at 739.
Our certiorari jurisdiction under § 1613 “is not limited to
decisions on federal law,” and “[w]e also have the discretion
1
We likewise do not address “whether the
Virgin Islands Supreme Court’s decision is a ‘final decision’
within the meaning of [§ 1613] in light of that court’s remand
to the Virgin Islands Superior Court.”
15
to review the Virgin Islands Supreme Court’s decisions on
local law” (under a deferential standard of review). Id. at 743
(citing Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 96
(3d Cir. 2010)). This temporary period of certiorari
jurisdiction was designed to allow enough time for the new
court “to develop ‘sufficient institutional traditions [of its
own] to justify direct review by the Supreme Court of the
United States.’” Kendall I, 716 F.3d at 86 (quoting § 1613).
Once the Virgin Islands Supreme Court established the
requisite traditions, it would assume the same role as the
highest court of any state, i.e., “it will be the final authority
on Virgin Islands law.” Defoe, 702 F.3d at 739. The United
States Supreme Court would then exercise certiorari review
over the Virgin Islands Supreme Court’s final decisions on
questions of federal law, and, in contrast, we would no longer
possess certiorari jurisdiction as to its rulings on questions of
either federal or Virgin Islands local law. See, e.g., id.
“Recognizing that the Virgin Islands Supreme Court
might develop sufficient institutional traditions before the
fifteen-year mark, however, Congress required this Court to
regularly evaluate and report on its progress.” Kendall I, 716
F.3d at 86 (citing § 1613; Defoe, 702 F.3d at 739-40). The
Virgin Islands Supreme Court “passed that test with flying
colors” in 2012 “when a committee of this Court
recommended to the Third Circuit Judicial Council that
Congress eliminate our certiorari jurisdiction over Virgin
Islands Supreme Court decisions in favor of direct review by
the United States Supreme Court.” Id. (citing Judicial
Council of the U.S. Court of Appeals for the Third Circuit,
Report on the Virgin Islands Supreme Court 1 (2012),
16
available at
http://www.visusupremecourt.org/wfData/files/BookletReport
ofVirginIslandsSupremeCourt.pdf)). The Executive and
Legislative Branches acted with dispatch on our
recommendation:
By December 13, 2012, both the House of
Representatives and the Senate had passed H.R.
6116, a bill that would eliminate our certiorari
jurisdiction over final decisions of the Virgin
Islands Supreme Court and replace it with direct
review by the Supreme Court of the United
States. See An Act to amend the Revised
Organic Act of the Virgin Islands to provide for
direct review by the United States Supreme
Court of decisions of the Virgin Islands
Supreme Court, H.R. 6116, §§ 1-2, 112th Cong.
(2012). President Obama signed H.R. 6116 into
law on December 28, 2012.
Id. Specifically, Section 1 of this legislation amends § 1613
by striking the language granting this Court certiorari
jurisdiction over final decisions of the highest court of the
Virgin Islands. Section 2 of H.R. 6116 adds the following
section to the statute governing the jurisdiction of the United
States Supreme Court:
“[28 U.S.C.] § 1260. Supreme Court of the
Virgin Islands; certiorari
17
“Final judgments or decrees rendered by the
Supreme Court of the Virgin Islands may be
reviewed by the Supreme Court by writ of
certiorari where the validity of a treaty or statute
of the United States is drawn in question or
where the validity of a statute of the Virgin
Islands is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or
laws of the United States, or where any title,
right, privilege, or immunity is specially set up
or claimed under the Constitution or the treaties
or statutes of, or any commission held or
authority exercised under, the United States.”
Section 3 of H.R. 6116, entitled “Effective Date,” provides
that “[t]he amendments made by this Act apply to cases
commenced on or after the date of the enactment of this Act,”
i.e., December 28, 2012.
This Court has addressed the effect of H.R. 6116 on its
certiorari jurisdiction in two opinions involving Virgin
Islands Supreme Court decisions on questions of federal law:
Kendall I, 716 F.3d 82, and In re Kendall, 712 F.3d 814 (3d
Cir. 2013) (“Kendall II”). In Kendall I, we decided that this
legislation does not strip us of our certiorari jurisdiction over
cases “in which certiorari has been granted and the matter is
awaiting decision at the time of the bill’s enactment.”
Kendall I, 716 F.3d at 87. The Kendall II Court then
characterized Kendall I as “holding that Congress’s recent
elimination of the Third Circuit’s certiorari jurisdiction over
decisions of the Virgin Islands Supreme Court does not
18
affect, at a minimum, certiorari petitions filed before the
effective date of the jurisdiction-stripping act.” Kendall II,
712 F.3d at 821 n.3 (citing Kendall I).
“When interpreting a statute, we normally presume
that the statute does not apply retroactively—that is, to cases
pending on the date of the law’s enactment—absent clear
congressional intent to the contrary.” Kendall I, 716 F.3d at
87 (citing Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006)).
As we observed in Kendall I, the presumption against
retroactivity does not apply to legislation that merely alters
jurisdiction. See, e.g., id. “‘[U]nlike other intervening
changes in the law, a jurisdiction-conferring or jurisdiction-
stripping statute usually “takes away no substantive rights but
simply changes the tribunal that is to hear the case.”’” Id.
(quoting Hamdan, 548 U.S. at 576-77). Accordingly, “‘no
retroactivity problem arises’ with respect to an intervening
change in jurisdiction ‘because the change in the law does not
“impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with
respect to transactions already completed.”’” Id. (quoting
Hamdan, 548 U.S. at 577).
This “‘does not mean, however, that all jurisdiction-
stripping provisions . . . must apply to cases pending at the
time of their enactment.’” Id. (quoting Hamdan, 548 U.S. at
577). Simply put, a court still looks to generally applicable
rules of statutory construction to decide whether a statute
takes away its jurisdiction. This is exactly what we did in
Kendall I:
19
After all, “‘[n]ormal rules of [statutory]
construction’ . . . may dictate otherwise.”
[Hamdan, 548 U.S. at 577] (quoting Lindh v.
Murphy, [521 U.S. 320, 326 (1997)]). Here,
Congress spoke clearly: “[t]he amendments
made by [H.R. 6116]”—that is, the elimination
of the Third Circuit’s certiorari jurisdiction and
substitution of such review by the United States
Supreme Court—“apply to cases commenced
on or after the date of the enactment of [H.R.
6116].” H.R. 6116, § 3. No matter 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—an issue we need not decide today—
Kendall commenced this case long before H.R.
6116’s enactment.
Id. In other words, H.R. 6116 only applies to “cases
commenced” on or after enactment date, which means that it
does not apply to “cases commenced” before that date.
In Kendall I, we addressed the Ninth Circuit’s ruling in
Santos v. Guam, 436 F.3d 1051 (9th Cir. 2006), which held
that Congress’s elimination of the Ninth Circuit’s certiorari
jurisdiction over the Guam Supreme Court (and substitution
of direct review by the United States Supreme Court) applied
to pending cases. Kendall I, 716 F.3d at 87. We noted that
the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557
(2006), rejected the theory that jurisdiction-stripping
20
provisions apply retroactively in the absence of an express
reservation for pending cases. Kendall I, 716 F.3d at 87.
“More importantly,” H.R. 6116 was markedly different from
the legislation at issue in Santos:
In Santos, the Ninth Circuit addressed a statute
in which Congress was completely silent about
the effective date of the jurisdiction-stripping
provision. Santos, 436 F.3d at 1053 (explaining
that Congress did not “express[ ] an intent as to
the effective date”). By contrast, Congress was
explicit that H.R. 6116’s amendments apply
only “to cases commenced on or after the date
of the enactment” of the statute. See H.R. 6116,
§ 3. As a result, we retain certiorari jurisdiction
over all cases “commenced” before the
President signed H.R. 6116, including this one.
See Hamdan, [548 U.S. at 584] (drawing the
negative inference that Congress did not intend
to eliminate jurisdiction over pending detainee
habeas petitions where the statute was silent
about whether its jurisdiction-stripping
subsection applied to cases even though it
expressly made two other subsections
retroactive).
Id. at 87-88.
The Government and the Union filed their respective
Virgin Islands Superior Court actions in 2011, and the
Government filed its ultimately successful appeal to the
21
Virgin Islands Supreme Court in the same year. Although the
Virgin Islands Supreme Court entered its order and opinion
on November 26, 2012, the Union filed its otherwise timely
certiorari petition on January 23, 2013—after the date of
enactment of H.R. 6116, i.e., December 28, 2012. We
therefore must decide the specific issue that we refused to
reach in Kendall I: “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.” Id. at 87. Relying in
particular on the Supreme Court’s decision in Slack v.
McDaniel, 529 U.S. 473 (2000), as well as the alleged
purpose of the legislation, the Government asks us to construe
this “cases commenced” language to mean the filing of a
certiorari petition. Based on the language of the statute,
analogous legislation, and prior case law, we agree with the
Union that we retain certiorari jurisdiction over proceedings
that were filed in the Virgin Islands courts before H.R. 6116’s
enactment date. This includes the proceedings filed by the
Government and the Union in the Virgin Islands Superior
Court in 2011. In other words, we believe that “‘cases
commenced’ carries a broader meaning referring to the filing
of a complaint in the [Virgin Islands] Superior Court.”
The plain language of the statutory terms “cases
commenced” appears to encompass proceedings filed in the
Virgin Islands courts. See, e.g., United States v. Brown, 740
F.3d 145, 149 (3d Cir. 2014) (“‘[T]he starting point for
interpreting a statute is the language of the statute itself.’
When words are not defined within the statute, we construe
them ‘in accordance with [their] ordinary or natural meaning.’
22
We do not, however, do so blindly.” (citations omitted));
Allen ex rel. Martin v. LaSalle Bank, 629 F.3d 364, 367 (3d
Cir. 2011) (“To discern Congress’ intent we begin with the
text. If the statute’s plain language is unambiguous and
expresses that intent with sufficient precision, we need not
look further.” (citations omitted)). The term “case” has
generally been understood to include judicial proceedings of
any kind. For instance, the Supreme Court has noted that
“‘[t]he words “case” and “cause” are constantly used as
synonyms in statutes . . ., each meaning a proceeding in court,
a suit, or action.’” Hohn v. United States, 524 U.S. 236, 241
(1998) (quoting Blyvew v. United States, 13 Wall. 581, 595,
20 L. Ed. 638 (1871))). “[A] ‘case’ in the broader sense” has
been defined as “‘[a] civil or criminal proceeding, action, suit,
or controversy at law or in equity.’” In re Zarnel, 619 F.3d
156, 166 (2d Cir. 2010) (quoting Black’s Law Dictionary 243
(9th ed. 2009)). In addition, a case or cause of action has
traditionally been understood as “commenced when it is first
brought in an appropriate court.” Pritchett v. Office Depot,
Inc., 420 F.3d 1090, 1094 (10th Cir. 2005) (citing Fed. R.
Civ. P. 3); 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.” (citations
omitted)).
If it had indeed meant to strip this Court of certiorari
jurisdiction over proceedings already filed in the Virgin
Islands courts before the enactment date of the legislation,
Congress could have done so far more clearly. In fact, it has
done as much in the past. For example, Congress could have
provided that H.R. 6116 applies to “appellate cases
23
commenced” or “certiorari proceedings commenced” in the
Third Circuit. It evidently could have stripped this Court of
any remaining certiorari jurisdiction by simply omitting any
reference to an effective date, which is what Congress
apparently did with respect to the Ninth Circuit’s jurisdiction
over the Guam Supreme Court. Santos, 436 F.3d at 1053; see
also Kendall I, 716 F.3d at 87. When Congress stripped 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.” Act of Aug. 30,
1961, Pub. L. No. 87-189, § 3, 75 Stat. 417 (1961). In 1988,
Congress amended the statutory scheme governing the
Supreme Court’s certiorari jurisdiction. However, in doing
so, it expressly stated that the amendments “shall not apply to
cases pending in the Supreme Court on the effective date of
such amendment” (or otherwise affect the right to review of a
judgment or decree entered before the effective date). Act of
June 27, 1988, Pub. L. No. 100-352, § 7, 102 Stat. 662
(1988). Congress actually included this type of language with
respect to stripping the District Court of the Virgin Islands of
appellate jurisdiction over local actions upon the creation by
the Virgin Islands Legislature of a Virgin Islands appellate
court, i.e., the legislation stated that it “shall not result in the
loss of jurisdiction of the district court over any appeal then
pending in it.” 48 U.S.C. § 1613a(d).
In H.R. 6116, Congress took a different approach than
it has in similar circumstances in the past. In short, the
24
“Effective Date” section of H.R. 6116 does not refer to a
particular type of proceeding or a specific judicial body. This
section instead uses expansive and otherwise unmodified
language in order to govern the applicability of amendments
taking away jurisdiction from one court and granting
jurisdiction to another—namely—“cases commenced” on or
after the date of enactment. 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. Congress likewise has repeatedly
used somewhat similar language with respect to the
applicability of amendments made to other statutory schemes.
These include the supplemental jurisdiction statute, Judicial
Improvements Act of 1990, Pub. L. 101-650, Title III, § 310,
104 Stat. 5089 (1990) (“The amendments made by this
section shall apply to civil actions commenced on or after the
date of the enactment of this Act”), the removal jurisdiction
statute, Judicial Improvements Act of 1985, Pub. L. No. 99-
336, § 3(b), 100 Stat. 633 (2006) (“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.”), and the statute governing
removal and interlocutory appeals in class action proceedings,
Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 9,
119 Stat. 4 (2005) (“The amendments made by this Act shall
apply to any civil action commenced on or after the date of
enactment of this Act.”). The term “cases” evidently carries a
broader meaning than the words “civil action” used in these
25
various enactments (e.g., “cases” would include both criminal
as well as civil proceedings).
We believe that prior case law also supports our
reading of H.R. 6116. After all, we have indicated that
“Congress’s recent elimination of the Third Circuit’s
certiorari jurisdiction over decisions of the Virgin Islands
Supreme Court does not affect, at a minimum, certiorari
petitions filed before the effective date of the jurisdiction-
stripping act.” Kendall II, 712 F.3d at 821 n.3 (citing Kendall
I). In Hamdan, the federal government filed a motion to
dismiss a writ of certiorari pursuant to the Detainee Treatment
Act, which was enacted after the Supreme Court had already
granted the writ and (at least according to the federal
government) had the immediate effect of repealing
jurisdiction “not just over detainee habeas actions yet to be
filed but also over any such actions then pending in any
federal court—including this Court.” Hamdan, 548 U.S. at
574. As we observed in Kendall I, the Supreme Court instead
applied traditional rules of statutory construction to draw “the
negative inference that Congress did not intend to eliminate
jurisdiction over pending detainee habeas petitions where the
statute was silent about whether its jurisdiction-stripping
subsection applied to cases even though it expressly made
two other subsections retroactive.” Kendall I, 716 F.3d at 88
(citing Hamdan, 548 U.S. at 584). The Hamdan Court also
rejected the theory that “jurisdiction-stripping provisions
automatically apply retroactively absent an express
reservation of jurisdiction over pending cases.” Id. at 87
(citing Hamdan, 548 U.S. at 584).
26
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) amended 28 U.S.C. § 2253 to add a new
subsection setting forth “certificate of appealability”
requirements governing the right to appeal in the habeas
context. Slack, 529 U.S. at 477-78, 480-81. In Slack, the
petitioner filed his habeas petition before AEDPA’s effective
date, but the notice of appeal (as well as the district court’s
order dismissing the petition) were filed after the legislation
went into effect. Id. at 479-80. The Supreme Court
considered “whether the pre- or post-AEDPA version of §
2253 controls Slack’s right to appeal.” Id. at 481. In
answering this question, the Slack Court took into account its
prior AEDPA decision in Lindh v. Murphy, 521 U.S. 320
(1997), in which it concluded that the new version of 28
U.S.C. § 2254(d) (stating that no habeas relief shall be
granted with respect to any claim adjudicated on the merits in
state court unless the decision was contrary to, or involved an
unreasonable application, of clearly established federal law or
was based on an unreasonable factual determination) did not
apply to habeas applications that were already pending when
the statute was passed, id. at 323-27. Applying traditional
rules of statutory construction, the Lindh Court drew a
negative implication from an AEDPA provision stating that a
different part of the legislation (applicable in the capital
context) applies to cases pending on or after the date of
enactment. Id. at 327 (reading provision “as indicating
implicitly that the amendments to chapter 153 were assumed
and meant to apply to the general run of habeas cases only
when those cases had been filed after the date of the Act.”).
The Supreme Court, however, rejected Slack’s attempt to rely
on Lindh in support of his contention that § 2253(c) did not
27
apply to him because he commenced his case in the district
court before AEDPA’s enactment. Slack, 529 U.S. at 481.
“[T]he [Lindh] Court held 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.” Id. (citing Lindh, 521 U.S. at 327).
“For purposes of implementing the holding in Lindh, it must
be recognized that § 2254 is directed to proceedings in the
district courts while § 2253 is directed to proceedings in the
appellate courts.” Id. In other words, because § 2254 is
directed to proceedings in the district courts, it applies to
cases filed in the district court after AEDPA. Id. Section
2253 is directed to appellate proceedings, and it thereby
applies to appellate proceedings initiated post-AEDPA even if
the habeas petition itself was filed before the effective date of
this legislation. Id. Although Lindh requires the court of
appeals to apply pre-AEDPA law in reviewing the district
court’s ruling for cases commenced in the district court pre-
AEDPA, the Supreme Court concluded that post-AEDPA law
“governs the right to appeal in cases such as the one now
before us.” Id.
The Slack Court further explained that:
While an appeal is a continuation of the
litigation started in the trial court, it is a distinct
step. [Hohn, 524 U.S. at 241]; McKenzie v. A.
Engelhard & Sons Co., [266 U.S. 131] (1924).
We have described proceedings in the courts of
appeals as “appellate cases.” E.g., Order of
Apr. 30, 1991, 500 U.S. 1009 (amendments to
28
Federal Rules of Appellate Procedure “shall
govern all proceedings in appellate cases
thereafter commenced”). Under AEDPA, an
appellate case is commenced when the
application for a COA is filed. Hohn, [524 U.S.
at 241]. When Congress instructs us (as Lindh
says it has) 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. Thus, §
2253(c) governs appellate court proceedings
filed after AEDPA’s effective date. We see no
indication that Congress intended to tie
application of the provisions to the date a
petition was filed in the district court. The
COA statute establishes procedural rules and
requires a threshold inquiry into whether the
circuit court may entertain an appeal. [Id. at
248]; cf. Lindh, [521 U.S. at 327]. Because
Slack sought appellate review two years after
AEDPA’s effective date, § 2253(c) governs his
right to appeal.
29
Id. at 481-82. 2
At least at first blush, Slack does seem to weigh in
favor of the Government’s interpretation of H.R. 6116, i.e.,
because the legislation 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. Nevertheless, we do not find Slack to be
controlling in the present circumstances. Initially, the
Supreme Court was not confronted with an express provision
stating that amendments would apply to “cases commenced”
on or after the date of enactment of the legislation. It
accordingly did not discuss whether there may be a
meaningful difference between such an open-ended and
unmodified provision and a provision that refers, for instance,
to “appellate cases commenced.” Cf., e.g., AEDPA, Pub. L.
104-132, tit. IX, § 903(c), 110 Stat. 1214 (1996) (providing
that fee revision amendments apply to “cases commenced on
or after the date of enactment” and “appellate proceedings, in
which an appeal is perfected on or after the date of
enactment”). In fact, AEDPA lacked any express provision
governing the applicability of § 2253 (or § 2254) to pending
2
The Supreme Court in Slack noted that the
petitioner in Hohn had also argued that § 2253(c) did not
apply because he had filed his habeas petition before
AEDPA’s effective date. Slack, 529 U.S. at 482. “Though
our opinion did not discuss whether § 2253(c) applied to
Hohn, we would have had no reason to reach the issue we did
resolve, that we had statutory certiorari jurisdiction to review
the denial of a COA, if AEDPA did not apply at all.” Id.
30
cases (and the Supreme Court accordingly turned to a
provision stating that a different chapter of this habeas
legislation “shall apply to cases pending on or after the date
of the enactment of this Act”). The habeas provisions at issue
in Slack and Lindh likewise did not divest one court of its
jurisdiction and confer such jurisdiction on another court. In
contrast, we must give effect to a statutory provision stating
that amendments stripping us of certiorari jurisdiction (and
vesting certiorari jurisdiction in the Supreme Court) apply to
“cases commenced” on or after the date of enactment. The
statutory language at issue, Congress’s use of both similar
and dissimilar language in other related contexts, and prior
case law all weigh in favor of reading of this statutory
provision as “referring to the filing of a complaint in the
Superior Court”—and we do not believe that the Supreme
Court’s ruling in Slack alters our conclusion.
We likewise reject the Government’s assertion that the
intent of H.R. 6116 “can only be accomplished only if the
Supreme Court of the United States assumes exclusive
jurisdiction over certiorari petitions filed after December 28,
2012, the effective date of the act.” (Respondent’s
Jurisdiction Brief at 4.) We acknowledge that Congress
passed and the President signed H.R. 6116 after “a committee
of this Court recommended to the Third Circuit Judicial
Council that Congress eliminate our certiorari jurisdiction
over Virgin Islands Supreme Court decisions in favor of
direct review by the United States Supreme Court” because
the new court had succeeded in developing sufficient
institutional traditions to justify such direct review. Kendall
I, 716 F.3d at 86 (citation omitted). In other words, the court
31
created by the Virgin Islands Legislature passed its test “with
flying colors.” Id. (citation omitted). Nevertheless, taken to
its logical conclusion, the notion that there is no longer any
reason for us to review decisions by the Virgin Islands
Supreme Court would indicate that we should also lose
jurisdiction even where the certiorari petition was filed or
granted before H.R. 6116’s enactment date. Although it
could have taken this step (and evidently has done so in the
past, see, e.g., id. at 87), Congress instead chose to include an
explicit provision making it clear that its jurisdiction-stripping
amendments only apply to “cases commenced” on or after the
enactment date. We accordingly have already determined
that we retain jurisdiction with respect to proceedings in
which the certiorari petitions were either granted or filed
before this date. We add that, like 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 United States
Supreme Court). After all, the Government and the Union
commenced their respective Virgin Islands Superior Court
actions in 2011, and the Virgin Islands Supreme Court, in
turn, did not render its own decision until November 2012.
We find it improbable that H.R. 6116 was ever meant to strip
this Court of certiorari jurisdiction when the enactment date
32
of this legislation fell right in the middle of the applicable
time period for filing a certiorari petition with this Court. 3
B. Mootness
Even though we thereby retain certiorari jurisdiction
under H.R. 6116, we nevertheless must dismiss the certiorari
petition as moot because of Bason’s death.
Federal courts generally lack jurisdiction whenever
“‘“the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.”’” McNair v.
Synapse Group Inc., 672 F.3d 213, 224 n.11 (3d Cir. 2012)
(quoting Merle v. United States, 351 F.3d 92, 94 (3d Cir.
2003)). The mootness determination implicates an intensely
factual inquiry requiring the court to assess whether it could
award meaningful relief despite changing circumstances.
See, e.g., Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912,
3
Likewise, we must reject the Government’s
theory that the Union’s approach to H.R. 6116 would result in
both the United States Supreme Court and this Court
possessing concurrent jurisdiction. On the contrary, “we
retain certiorari jurisdiction over all cases ‘commenced’
before the President signed H.R. 6116,” Kendall I, 716 F.3d
at 88 (citation omitted), and we now conclude that such cases
includes proceedings commenced in the Virgin Islands courts
before that date. In turn, the Supreme Court would not
possess jurisdiction over such cases. For “cases commenced”
on or after this date, the United States Supreme Court
possesses exclusive certiorari jurisdiction.
33
914-16 (3d Cir. 1987). “The mootness doctrine is centrally
concerned with the court’s ability to grant effective relief.”
County of Morris v. Nationalist Movement, 273 F.3d 527,
533 (3d Cir. 2001) (citing Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 698-99 (3d Cir. 1996)). As the Union
notes, an otherwise lawful order does not become moot
merely because changes in circumstances indicate that the
need for the order may be less then when it was originally
entered. See, e.g., C-B Buick, Inc. v. NLRB, 506 F.2d 1087,
1093 (3d Cir. 1974). Additionally, voluntary compliance or
cessation of the allegedly unlawful conduct on the part of the
defendant generally does not render a case as moot. See, e.g.,
Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013)
(stating that party claiming voluntary compliance carries
formidable burden of showing that it is absolutely clear that
allegedly wrongful conduct could not reasonably be expected
to recur); Dep’t of Justice v. Fed. Labor Relations Auth., 991
F.2d 285, 289 (5th Cir. 1993) (“[Unfair labor practice] cases,
however, generally do not become moot when the individual
parties resolve the specific matter that gave rise to the dispute
because the ‘Board is entitled to have the resumption of the
unfair practice barred by an enforcement decree.’” (quoting
NLRB v. Raytheon Co., 398 U.S. 25, 27 (1970))). “Instead,
the dismissal of an action on mootness grounds requires the
defendant to demonstrate that ‘there is no reasonable
expectation that the wrong will be repeated.’” Sutton v.
Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (quoting
Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am.
v. City of Jacksonville, 508 U.S. 656, 662 (1993)). “[T]he
‘capable of repetition yet evading review’ doctrine permits
consideration of a case that ‘would otherwise be deemed
34
moot’ when ‘“(1) the challenged action is, in its duration, too
short to be fully litigated prior to cessation or expiration, and
(2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.”’”
McNair, 672 F.3d at 224 n.11 (quoting Merle, 351 F.3d at
94).
We do not believe that the current certiorari
proceeding falls under the “capable of repetition yet evading
review” doctrine. According to the Union, H.R. 6116
forecloses review of Virgin Islands Supreme Court decisions
on questions of Virgin Islands law, and any future
reinstatement issue that may arise between the Union and the
Government thereby will forever evade review. A statute
stripping a federal circuit court of certiorari jurisdiction over
final decisions of the highest court of a territory (and vesting
the United States Supreme Court with certiorari jurisdiction at
least with respect to questions of federal law) does not appear
to represent the type of occurrence that could implicate this
doctrine. In any event, we have already concluded that we
retain certiorari jurisdiction with respect to proceedings that
were filed in the Virgin Islands courts before H.R. 6116’s
date of enactment, including the proceedings filed by the
Union and the Government in 2011. Furthermore, it is
Bason’s death that moots current certiorari proceeding, and
this unfortunate and seemingly unexpected occurrence does
not render this case capable of repetition yet evading review.
Cf., e.g., Compassion in Dying v. Washington, 79 F.3d 790,
796 n.4 (9th Cir. 1996) (en banc) (“We would think that a
distinction could reasonably be drawn between the terminally
ill, all of whom necessarily will die prior to completion of the
35
litigation, and those whose cases become moot for more
mundane or less predictable reasons.”), rev’d on other
grounds sub nom. Washington v. Glucksberg, 521 U.S. 702
(1997).
The Union vigorously contends that it is the real party
in interest here. For our part, we recognize that a labor
union’s interest may extend beyond merely protecting the
rights of an allegedly injured employee and that it accordingly
may have a right to advocate on behalf of other similarly
situated members as well as the collective bargaining unit as a
whole. In American Federation of Government Employees,
Local 1941 v. Federal Labor Relations Authority, 837 F.2d
495 (D.C. Cir. 1988), a local of the American Federation of
Government Employees (“AFGE”) sought review of a
decision of the Federal Labor Relations Authority (“FLRA”),
holding “that the credentials committee of an Army hospital
about to conduct a hearing to consider adverse information
relating to the medical procedures and proficiency of a
certified ophthalmologist employed at the hospital did not
commit an unfair labor practice when it refused the
employee’s request to have his union representative with him
at the hearing,” id. at 496. Although the doctor resigned from
his position and died a short time after the hospital
commander had adopted the committee’s recommendations to
restrict his privileges, id. at 497, the D.C. Circuit allowed the
union to pursue an unlawful labor practice action:
This controversy is not mooted by Dr. Hanna’s
death. As exclusive representative of Dr.
Hanna’s bargaining unit, AFGE has a derivative
36
right to be present, on the employee’s request,
at an examination reasonably believed by the
employee potentially to result in disciplinary
action. 5 U.S.C. § 7114(a)(2)(B). Thus the
Union itself has standing to contest the denial of
representation as an unfair employment
practice. Available remedies may include a
cease and desist order or the posting of an
unfair labor practice notice. See, e.g., AFGE v.
FLRA, 777 F.2d 751, 753 n.13 (D.C. Cir.
1985).
Id. at 497 n.2.; see also, e.g., Dep’t of Justice v. FLRA, 144
F.3d 90, 91-96 (D.C. 1998) (rejecting INS’s theory that union
was not acting as exclusive representative at oral reply stage
of disciplinary proceedings on grounds that union sought to
vindicate employees’ individual interests as well as
bargaining unit’s broader interest in proper administration of
collective bargaining agreement and likewise rejecting
union’s request to sanction INS for pursuing appeal after its
alleged destruction of certain documents because whether
agency committed unfair labor practice in refusing to produce
documents was unaffected by whether agency later destroyed
such documents); AFGE, Local 3090, 777 F.2d at 753 n.13
(“This ‘other action’ may include the posting of a notice
indicating that an agency has been found to have committed
an unfair labor practice and that it has been ordered to cease
committing such practices in the future. An order requiring
the Home to post such a notice would of course afford [the
union] an as yet unrealized remedy for the alleged unfair
labor practice.” (citation omitted)).
37
Furthermore, it is well established that, even though
the death of a former employee may moot a reinstatement
claim, a claim for back pay nevertheless survives his or her
death. See, e.g., Scott v. Univ. of Del., 601 F.2d 76, 81 n.8
(3d Cir. 1979) (“We address the merits of Scott’s individual
[discrimination] claims because the claim for back pay and
damages survives his death.”); abrogated on other grounds,
EF Operating Corp. v. United Mine Workers of Am., 993
F.2d 1046 (3d Cir. 1993); NLRB v. Atl. Towing Co., 179
F.2d 497, 498 (5th Cir. 1950) (“Since the issuance of said
[NLRB] order [requiring reinstatement with full
reimbursement], Hendrix has died, but this does not render
the case moot because, if the court sustains the order,
Hendrix’s estate is entitled to be made whole for any loss of
pay suffered by him”).
Nevertheless, the current certiorari proceeding presents
this Court with an unusual and even unique set of
circumstances. In short, the Virgin Islands Supreme Court’s
order and opinion was entirely premised on the notion of
reinstatement, and it would have dismissed the Government’s
appeal if the Virgin Islands Superior Court had never ordered
Bason’s immediate reinstatement. In its submission on
mootness, the Union quotes the Virgin Islands Supreme
Court’s holding “‘that section 113 of title 3 precluded the
arbitrator and the Superior Court from mandating that the
Government reinstate Bason as an Assistant Attorney
General’” (Petitioner’s Mootness Letter at 3 (quoting UIW-
SIU, 2012 WL 5901921, at *5)) together with the statement
that “‘it is not clear to this Court how the provisions of [the
CBA] which permit reinstatement by an arbitrator of an
38
Assistant Attorney General discharged without just cause can
in any way be reconciled with the statutory enactment’” (id.
at 3-4 (quoting UIW-SIU, 2012 WL 5901921, at *5)).
Specifically, the Virgin Islands Supreme Court concluded
that, “[s]ince the portion of the December 13, 2011 Opinion
and Judgment mandating Bason’s reinstatement constituted
an appealable injunction, this Court possesses jurisdiction
over that portion of the underlying order.” UIW-SIU, 2012
WL 5901921, at *5. It then proceeded to reverse the Virgin
Islands Superior Court’s opinion and judgment to the extent
that it directed the Government to reinstate Bason. However,
the Virgin Islands Supreme Court also dismissed the appeal
“with respect to all other issues” (A22) because it agreed with
the Union that the parties’ disagreement as to the calculation
of back pay “precludes us from exercising jurisdiction,” id. at
*3 (citation omitted). On remand, the Virgin Islands Superior
Court has not yet disposed of the claim for back pay.
Bason’s death clearly moots any reinstatement claim
on his behalf. See, e.g., Scott, 601 F.2d at 81 n.8 (“Insofar as
Scott sought injunctive and declaratory relief compelling the
University to reinstate him and renew his contract, these
claims have been mooted by Scott’s death.”); Loveman,
Joseph & Loeb v. NLRB, 146 F.2d 769, 772 (5th Cir. 1945)
(“Furthermore, her death has rendered the question of her
reinstatement moot.”). Given the critical role that
reinstatement played in the Virgin Islands Supreme Court’s
disposition, we do not see how we could reach the merits of
its decision at this juncture. In other words, reinstatement
represents the critical “hook” on which this entire certiorari
proceeding rests, and, without it, “‘“the parties lack a legally
39
cognizable interest in the outcome”’” of the certiorari
proceeding itself. McNair, 672 F.3d at 224 n.11 (citation
omitted). The proceeding thereby involves more than either
changed circumstances indicating that the need for an order
may be less than when it was first entered or voluntary
compliance on the part of the Government. Likewise, this
proceeding does not implicate, inter alia, the right of a union
“to be present, on the employee’s request, at an examination
reasonably believed by the employee potentially to result in
disciplinary action.” AFGE, Local 1941, 837 F.2d at 497 n.2.
While the issue of back pay may not be moot, this particular
claim is not before us because the Virgin Islands Supreme
Court concluded that it lacked appellate jurisdiction over this
claim, which has yet to be decided by the Virgin Islands
Superior Court. In fact, it appears that the Union (or Bason’s
estate) could continue to litigate the claim for back pay (and
possibly other claims for relief given Bason’s death) in the
Virgin Islands courts. If the Union (or the Government) does
not prevail before the Virgin Islands courts, it then could file
a certiorari petition with us (and, as we have explained, H.R.
6116 would not strip us of jurisdiction over such a petition).
III.
For the foregoing reasons, we will dismiss the Union’s
certiorari petition as moot.
40