Victoria Vooys v. Maria Bentley

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.