2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 12

- 1586

_____________
TIMOTHY DEFOE

v.

LENROY PHILLIP, Petitioner

______________ On Writ of Certiorari to the Supreme Court of the Virgin Islands Supreme Court No. VISC

- 1: 2009

- 0 0 07

Argued December 4 , 2012

Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

(Filed: December 21, 2012 )2 Joel H. Holt [ARGUED] Law Offices of Joel H. Holt 2132 Company Street, Suite 2 Christian sted, VI 00820 Counsel for Respondent

Carl A. Beckstedt, III [ARGUED] Beckstedt & Associates Suite 2 5025 Anchor Way Christiansted, V I 00820

Douglas L. Capdevill e Law Offices of Douglas L. Capdeville 2107 Company Street, Lot#4 P.O. Box 224191 Christian sted, VI 00822 Counsel for Petitioner

________________
OPINION

________________

SMITH, Circuit Judge

. For over half a century, this Court has been the final interpreter of Virgin Islands law

. In that role, w e3 have made an incalcu lable number of rulings and have issued hundreds o f decisions

. But our role changed in 2007 with the founding of the Supreme Court of the Virgin Islands. We must now decide whether and when that nascent Supreme Court may reject our pre

- 2007 interpretations of Virgin Islands law

. 1

I
Lenroy Phillip and Timothy Defoe worked together at an oil refinery in the United States Virgin Islands . On October 27, 2007, Phillip was driving a
company

- owned vehicle near the refinery when it struck Defoe. Phillip received a citation from their employer for inattentive driving.
While recovering from his injuries

, Defoe filed a claim and received benefits under the Virgin Islands Workers’ Compensation Act, 24 V.I. Code § 250 et seq. He also sued Phillip for negligence in the S uperior Court of the Virgin Islands. The Superior Court granted

1 Pursuant to its congressionally granted aut hority, the Virgin Islands legislature created the Supreme Court of the Virgin Islands in 2004, see 4 V.I. Code § 2 , but the Supreme Court did not begin to exercise its judicial authority until January 29, 2007. For convenience, we refer to decisions from before the time it began exercising its authority as pre

- 2007 decisions.4 summary judgment for Phillip. It relied on our decision in Tavarez v. Klingensmith , 372 F.3d 188 (3d Cir. 2004)

, in which we held that the Workers’ Compensation Act prevent s injured employees from suing their coworkers

. Id. at 192 (citing 24 V.I. Code § 284). The Superior Court therefore rejected Defoe’s negligence claim.
Defoe appealed to the Supreme Court of the Virgin Islands. The Supreme Court reversed, concluding that the Act ’s immunity pr ovision does not prevent suits against coworkers. Defoe v. Phillip

, No. 2009

- 0007

, 2012 WL 37404, at *2 (V.I. Jan. 5, 2012) (per curiam)

. B efore reaching that conclusion , the Supreme Court declared that it was no longer bound by this Court’s pre

- 2007 decis ions on Virgin Islands law

— even while acknowledging that the Sup erior Court remains bound by tho se decisions until the Supreme Court says otherwise

. Id. at *3

– 4 ; see also People v. Murell , No. 2011

- 0074, 2012 WL 2308543 , at *6 (V.I. May 15, 2012) ( stating that the Supreme Court need not follow two of our precedents on questions of local law). T he Supreme Court then rejected our holding in Tavarez and remanded to the Superior Court to determine whether Phillip actually was negligent.
Phillip turned to us. W e granted Phillip’s certiorari petition to decide “[w]hether the Supreme Court of the Virgin Isla nds has the authority, under 48 U.S.C. § 1613, to disregard precedent set by the Third Circuit Court of5 Appeals during a time when the Third Circuit Court of Ap peals was the only source of binding authority construing territorial law.” See Order Granting Pet. Writ Cert. at 1, Defoe v. Phillip , No. 12

- 1586 (3d Cir. May 10, 2012) (citing Pet. Writ Cert. at 9). We also directed the parties to address “whether this C ourt has jurisdiction over the petition pursuant to 48 U.S.C. § 1613.” Id

. Before resolving these questions

, a review of the Virgin Islands court system is in order

.
II
Congress laid the groundwork for the current Virgin Islands court system nearly sixty y ears ago. See generally Revised Organic Act of 19 5 4

, 48 U.S.C. § 1 541 et seq. The Revised Organic Act enabled the Virgin Islands legislature to create its own court system, including trial courts and an appellate court. Id. § 1611( b ).

In addition, the Act established the District Court of the Virgin Islands

— an Article I V court

— and gave it original jurisdiction over local claims. Id. §§ 1611(a), 1612(b). It also gave the District Court concurrent jurisdiction over any local crimes that are sufficiently simi lar to federal crimes. See Callwood v. Enos , 230 F.3d 627, 631 (3d Cir. 2000) (citing 48 U.S.C. § 1612 (c)). Until recently, t he District Court served as more than a trial court. The Appellate Division of the District Court also heard all appeals from loca l court s . 48 U.S.C.6 § 1613a(a). In turn, o ur Court had appellate jurisdiction

over appeals from the A ppellate D ivision. Id. § 1613a(c). Such review was a matter of right.
Congress changed this system in 1984 by

a mend ing the Revised Organic Act

. This amendm ent enabled the Virgin Islands legislature to vest original jurisdiction over local actions exclusively in local courts. Parrott v. Gov’t of U.S. Virgin Islands , 230 F.3d 615, 619 (3d Cir. 2000) (citing 48 U.S.C. § § 161 1 (a), 1612(b)). T he Virgin Islands e xercised that power, vesting exclusive jurisdiction over local actions in the Territorial Court of the Virgin Islands

— now known as the Superior Court of the Virgin Islands. 4 V.I. Code § 2. After this amendment, t he District Court continued to hear appeals from local trial courts , and it retained
concurrent jurisdiction over local crimes that are similar to federal crimes. See Callwood , 230 F.3d at 631.

The next major change came in 2004. Fifty years after receiving authority to do so, the Virgin Islands le gislature established its own appellate court

— the Supreme Court of the Virgin Islands

. See 4 V.I. Code § 2. The Supreme Court, composed of three justices

, began exercising its judicial authority on January 29, 2007 . I t handed down its first decision later that year . It continues
to hear all appeals from the Superior Court of the Virgin Islands

. See id. §§ 21(a), 32, 33.

The founding of the Virgin Islands Supreme Court7 altered the relationship between the federal judiciary and the Virgin Is lands court syste m . Going forward, t he District Court of the Virgin Islands no longer has appellate jurisdiction over any local decisions

. 2

[F]or the first fifteen years following the establishment of the appellate court authorized by section 1611(a) of th is title, the United States Court of Appeals for the Third Circuit shall have jurisdiction to review by writ of certiorari all final See 48 U.S.C. § 1613a(a) (indicating that the District Court’s appellate jurisdiction ends once the Virgin Islands legislature create s its own appellate court). Instead, as set out in 48 U.S.C. § 1613, we have certiorari jurisdiction over the Virgin Islands Supreme Court:

2 On appeal, the District Court still reviews territorial cases that were “pending in [the District Court]” before the establishment of the Supreme Court, and we still hear appeals f rom those decisions. 48 U.S.C. § 1613a(d) (“ The establishment of the appellate court shall not result in the loss of jurisdiction of the district court over any appeal then pending in it. T he rulings of the district court on such appeals may be reviewed in the

. . . Third Circuit and in the Supreme Court notwithstanding the establishment of the appellate
court. ”).8 decisions of the highest court of the Virgin Islands from which a decision could be had.

O ur certiorari jurisdiction will l ast for a maximum of fifteen years. After that, the Virgin Islands Supreme Court will have the same role as the highest court of any state

— it will be the final authority on Virgin Islands law

. T he United States Supreme Court will review its decisions on fe deral law, and we will no longer have appellate jurisdiction over its decisions

. In the meantime

, we have established rules that govern the process of granting certiorari petitions. See , e.g. , Third Circuit Local Appellate Rule 112.1(a) (“Review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.”). 3

The fifteen

- year period established by § 1613 is merely a default

. The statute requires our Court to submi t a report to Congress every five years after the creation of

3 Our local rules provide a list of reasons for granting certiorari petitions. Relevant to this case, we will grant a petition if “[t]he Supreme Court of the Virgin Islands has decided a question in a way that conflicts with applicable decisions of this court.” Local Appellate Rule 112.1(1)(a).9 the Virgin Islands Supreme Court. 4

Earlier this year, a committee from the Third Circuit prepared the initial five

- year report. The purpose of the report is to evaluate “whether it has developed sufficient institutional traditions to justify direct review by the Supreme Court of the Uni ted States from all [ ] final decisions.” 48 U.S.C. § 1613.

5

4 The relevant language from 48 U.S.C. § 1613
states:

The Judicial Council of the Third Circuit shall sub mit reports to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources 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.

5 The committee members included Circuit Judge D. Brooks Smith, Senior Circuit Judge Walter Stapleton, and Third Circuit C lerk Marcia Waldron. See Judicial Council of the U.S. Court of Appeals for the Third Circuit, Report on the Virgin Islands Supreme Court10 (2012), available at http://www.visupremecourt.org/wfData/files/BookletRep ortofVirginIslandsSupremeCourt.pdf. The committee reviewed the Supreme Court’s decisions, practices, facilities, and day

- to

- day operations. It concluded “that the Supr eme Court of the Virgin Islands ‘has developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States

. ’” Id. at 17 (quoting 48 U.S.C. § 1613). The committee recommended that Congress elimina te our certiorari jurisdiction. Id. Still, Congress must act for that recommendation to take effect. 6

6 We acknowledge that, based on the committee’s recommendation, both houses of Congress recently passed H.R. 6116, a bill to eliminate this Court’s interim certiorari jurisdiction over final decisions of the Supreme Court in favor of d irect certiorari review by t he United States Supreme Court. See An Act to A mend the Revised Organic Act of the Virgin Islands, H.R. 6116, 112th Cong. (2012) (passed by the House and the Senate as of December 13, 2012). Because the p resident has not signed H.R. 6116 as of this opinion’s publication, we need not consider its effect on our certiorar i jurisdiction over this case. See I.N.S. v. Chadha , 462 U.S. 919, 951

– 52 (1983) (concluding that Congress can exercise legislative power only through bicameralism and presentment). For now , we retain certiorari jurisdiction over final decisions of th e Virgin11 Islands Supreme Court.

III

We first address the question of appellate jurisdiction. During our interim certiorari period , we have authority to “review by writ of certiorari all final decisions of the highest court of the Virgin Islands from which a decision could be had.” 48 U.S.C. § 1613. The question is whether the Virgin Islands Supreme Court’s order reversing the Superior Court and remanding for further proceedings satisfied the “final decision s ” requirement in § 1613. We conclude that it did

.
We recently considered the meaning of the term “final decisions

. ” See Virgin Islands v. John , 654 F.3d 412 (3d Cir. 2011). Under John , a decision is final only if it is “ ‘ final ’ within the meaning of the United States Supreme Court’s certiorari jurisdiction statute.” Id. at 415 (citing 28 U.S.C. § 1257 (“F inal judgments or decrees rendered by the highest c ourt of a State .

. . may be reviewed by the Supreme Court by writ of certiorari

. . . .” ))

. In general, a judgment is final under the Supreme Court’s certiorari statute only if nothing “further remains to be determined by a State court, no matter how diss ociated from the [ ] federal issue that has finally been adjudicated by the highest court of the State.” Cox Broad. Corp. v. Cohn , 420 U.S. 469, 477 (1975) (quoting Radio Station WOW, Inc. v. Johnson

, 326 U.S. 120, 124 (1945)) (quotation marks omitted).12 He re, the Virgin Islands Supreme Court remanded to the Superior Court, and the Superior Court still needs to decide whether Phillip was negligent . This posture suggests that the Supreme Court’s decision was not final

.
Yet the definition of a “final decision ” is not so absolute. T he United States Supreme Court has recognized four exceptions to the finality rule :
In the first category are those cases in which there are further proceedings

— even entire trials

— yet to occur in the state courts but where for one re ason or another the federal issue is conclusive or the outcome of further proceedings preordained.

. . . Second, there are cases

. . . in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardle ss of the outcome of future
state

- court proceedings.

. . . In the third category are those situations where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the fed eral issue cannot be had, whatever the ultimate outcome of the case.

. . .13 Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rat her than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.

Id. at 479

– 83. When one of these exceptions applies, the Supreme Court will review a state court’s ruling on a federal issue even when additional issues await resolution in the lower courts . I n such instances, “immediate rather than delayed review would be the best way to avoid the mischief of economic waste and of delayed justice.” Id. at 477

– 7 8 (quoting Radio Station WOW , 326 U.S. at 124)14 (quotation marks omitted).

We conclude that t he Cox exceptions apply to the finality requirement in our certiorari statute

— albeit with

one difference

. The Supreme Court review s state decisions only on questio ns of federal law. See 28 U.S.C. § 1257

. By contrast, we review decisions of the Virgin Islands Supreme Court on questions of both federal and local law. See Pichardo v. V.I. Com’ r of Labor , 613 F.3d 87, 94 (3d Cir. 2010)

. As a result, we apply the excepti ons by examining the federal or local issue that the Supreme Court h as decided

— again, even though additional issues might await resolution. In effect, we apply the language from Cox by replacing the phrase “federal issue” with the phrase “federal or local issue.”
According to Phillip, this case fits within the third and fourth exceptions. 7

7 Phillip argues that Local Appellate Rule 112.1 provides another basis for jurisdiction. But this rule simply states our policy for granting certiorari

— it does not create an additional basis for jurisdiction. Only Congress can do that. We disagree

— at least with respect to t he third exception

. If we remand for lack of jurisdiction, we could still review the Supreme Court’s decision after the losing part y file d another petition. Phillip argues that res judicata would prevent us from15 granting certiorari . This argument is based on a misunderstanding of res judicata , which prevents parties from making the same claim in separate actions

— not from making the sa me argument on separate appeals in a single action

. See United States v. 5 Unlabeled Boxes

, 572 F.3d 169, 173 (3d Cir. 2009) (noting that res judicata applies only if there was “ a final judgment on the merits in a prior suit ” (emphasis added)).

That leaves the fourth exception. Subsequent Supreme Court cases have confirmed that the exception applies if three requirements are met : (1) the appellant might prevail at trial on separate grounds; (2) reversing the state court would end the litigation on the claim ; and (3) failing to review the decision “might seriously erode federal policy.” Florida v. Thomas , 532 U.S. 774, 780 (2001); Fort Wayne Books, Inc. v. Indiana , 489 U.S. 46, 55 (1989).
This case meets the first two requirements. Phillip might prevail at t rial on separate grounds

— for example, the Superior Court might conclude that he was not negligent or that Defoe assumed the risk of injury. And if we reversed the Supreme Court by concluding that Tavarez still applies, our decision would effectively reinst ate the Superior Court’s grant of summary judgment and thus would end the litigation. The question, then, is whether this c ase meets the third requirement

— that is, whether failing to review the Supreme Court’s16 decision “might seriously erode federal policy .”
This question requires a case

- by

- case inquiry

. In Florida v. Thomas , the United States Supreme Court concluded that a suppression motion did not invoke sufficient “federal policy” concerns. 532 U.S. at 78 0 (“Here the State can make no claim of serious e rosion of federal policy that is not common to all run

- of

- the

- mine decisions suppressing evidence in criminal trials.”). By comparison, i n Fort Wayne Books v. Indiana , the Court concluded tha t an Indiana case met this requirement because the case held that a specific application of the Indiana Racketeer Influenced and Corrupt Organization
statute was unconstitutional. “[A] challenge to the constitutionality of the use of RICO statutes to criminalize patterns of obscenity offenses calls into question the leg itimacy of the law enforcement practices of several States, as well as the Federal Government.” 489 U.S. at 55. It also pointed out that “[a]djudicating the proper scope of First Amendment protections has often been recognized by this Court as a ‘federal p olicy’ that merits application of an exception to the general finality rule.” Id.

T his case also meets the third requirement

. O ur Court has had a significant role in overseeing the Virgin Islands Supreme Court. See 48 U.S.C. § 1613 ; Pichardo

, 613 F.3d at 100 n.11 (“[W]e are entrusted with the task of overseeing the development of the Virgin Islands17 Supreme Court’s institutional traditions. ” (quotation marks omitted) ). W e have certiorari jurisdiction over the Supreme Court’s decisions

— both on questions of f ederal law and on questions of local law. See Pichardo , 613 F.3d at 94

. And , by law, we are required to submit regular reports to Congress evaluat ing the Supreme Court’s progress. 48 U.S.C. § 1613. Having chosen to invest in us this oversight role by statu te, Congress has declared a specific federal policy , the relevant federal policy for Cox purposes. We believe that if we failed to review the Supreme Court’s Defoe decision at this time,

w e would weaken our oversight role

— and in doing so, would seriously e rode federal policy . After all, b y not reviewing that decision , we would leave the precedential posture of our pre

- 2007 territorial cases undecided

. To prevent such uncertainty

— and to avoid shirking our oversight role

— we conclude that we have jurisdiction under § 1613.

IV

We now consider whether the Virgin Islands Supreme Court may reject our pre

- 2007 decisions on local law. Upon its establishment , t he Virgin Islands Supreme Court became the final authority on local law

— subject to a qualification discussed below . We recognized that the Supreme Court would assume this role even before its creation

. See BA Props. Inc. v. Gov’t of U.S. Virgin Islands , 299 F.3d 207, 21 2 (3d Cir. 2002)18 ( “[ The Virgin Islands Supreme Court ] would essentially have the final word on the interpretati on of local Virgin Islands law

. ”). And we reaffirmed this conclusion five years later when the Virgin Islands legislature actually created the Supreme Court. See Edwards v. HOVENSA, LLC , 497 F.3d 355, 361 n.3 (3d Cir. 2007) ( noting that

“ [ g] oing forward, now that the Virgin Islands has established an insular appellate court [it] will begin developing indigenous jurisprudence ” (emphasis added) ).

As a result, w hen the District Court faces a novel question of Virgin Islands law, it must predi ct how the Supreme C ourt will resolve that question

. Id. And w e must make similar prediction s

. A few years ago, we interpreted a Virgin Islands statute prohibiting unauthorized individuals from carrying firearms, 14 V.I. Code § 2253(a) . Before doing so, w e noted “the absence of controlling Virgin Islands precedent.” Gov’t of U.S. Virgin Islands v. Lewi s, 620 F.3d 359, 364 n.5 (3d Cir. 2010)

. We were “ mindful, of course, that the authority to interpret [the statute] lies centrally with the newly created Sup reme Court of the Virgin Islands. ” Id. And we confirmed that our decision did not “ preclude the Supreme Court of the Virgin Islands from offering its own interpretation.” Id.
Consequently, o ur relationship with the Virgin Islands Supreme Court is much lik e our rel ationship with19 other state courts

— we generally defer on que stions of local law. Such deference is consistent with the text of § 1613, which assumes that the Virgin Islands Supreme Court will have the freedom to create its own “institutional tradit ions.” 48 U.S.C. § 1613 (“ The relations between the courts established by the Constitution or laws of the United States and the courts established by local law

. . . shall be governed by the laws of the United States pertaining to the relations between t he courts of the United States .

. . and the courts of the several States in such matters and proceedings

. ”).
But our relationship with the Virgin Islands Supreme Court is different in at least one important respect . We have certiorari jurisdiction over the Virgin Islands Supreme Court. 48 U.S.C. § 1613. And unlike the United States Supreme Court’s certiorari statute, § 1613 is not limited to decisions on federal law. W e also have the discretion to review the Virgin Islands Supreme Court’s decisions on local law. See Pichardo , 613 F.3d at 96 ( noting that unlike the United State s Supreme Cour t’s review of state

- court decisions, “[o] ur review is not limited to cases that implicate the United States Constitution or federal law ”).

Because of this difference, we c oncluded in Pichardo that “[i] t is, subject to our review for manifest error, the role of the Virgin Islands Supreme Court to say what the law of the territory is. We will reverse a20 decision of the Supreme Court

. . . that is based upon territorial law onl y if it is inescapably wrong .” Id. at 94

. In other words, the Supreme Court has assumed our erstwhile role as the final authority on territorial law, though with an important limitation: its decisions must not be manifestly erroneous or inescapably wrong.

T he Ninth Circuit adopted this standard nearly a decade ago. Haeuser v. Dep’t of Law , 368 F.3d 1091, 1099 (9th Cir. 2004)

. By statute, the Ninth Circuit once had the same relationship with the Guam Supreme Court as the one we now enjoy with the Virgin Isl ands Supreme Court. 8

8 Congress has since removed the Ninth Circuit’s certiorari jurisdiction. S ee 48 U.S.C. § 1424

- 2. But the Ninth Circuit’s former jurisdictional statute stated: At the time, t he Ninth Circuit concluded that it

[F]or the first fifteen years following the establishment of the appellate court .

. . , the Unit ed 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 Natural Resources of the House of21 Representatives at intervals of five years following the establishment of such appellate court as to whether it has developed sufficient inst itutional traditions to justify direct review by the Supreme Court of the United States from all such final decisions. The United States Court of Appeals for the Ninth Circuit shall have jurisdiction to promulgate rules necessary to carry out the provision s of this subsection.

48 U.S.C. § 1424

- 2 (2000). This tracks the language from 48 U.S.C. § 1613 (emphasis added to show differences):

[F]or the first fifteen years following the establishment of the appellate court .

. . , the United States Court of Appeal s 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. The Judicial Council of the Third Circuit shall submit reports to the Committ ee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives at intervals of five years following the establishment of such appellate court as to whether it has22 would review local decisions of the Guam Supreme Court for manifest error. Id. (noting that the “d egree of deference ” owed to the Guam Supreme Court “ does not allow us to reverse the Gua m Supreme Court’ s decisions on matters of local law unless clear or manifest error is shown ”).

The Ninth Circuit did not create the “manifest

error ” standard. Instead, t he United States Supreme Court first articulate d this standard in 1940 . The Supreme Cou rt

c oncluded that the First Circuit

— which once had a similar role in supervising the Supreme Court of Puerto Rico

— should generally defer to local decisions of that territorial court . “For to justify reversal in such cases, the error must be clear or manife st; the interpretation must be inescapably wrong; the decision must be patently erroneous.” Sancho v. Texas Co. , 308 U.S. 463, 471 (1940).

All of this is settled law. Pichardo requires us to affirm the decisions of the Virgin Islands Supreme Court

developed sufficient institutional t raditions to justify direct review by the Supreme Court of the United States from all such final decisions. The United States Court of Appeals for the Third Circuit shall have jurisdiction to promulgate rules necessary to carry out the provisions of this s ection.23 that are based on territorial law unless those decision s are inescapably wrong

. In Phillip’s mind, however, this deferential standard does not apply when the Supreme Court disregards one of our pre

- 2007 decisions on territorial law

. Instead, as his argument goes, we should conclude that the Supreme Court is bound to our pronouncements from days gone by.

As for our post

- 2007 precedents, we have already rejected this argument. We stated in Lewis “that the authority to interpret [a Virgin Islands statute] lies central ly with the newly created Supreme Court of the Virgin Islands. We do not mean by our decision today to preclude the Supreme Court of the Virgin Islands from offering its own interpretation of [the statute].” 620 F.3d at 364 n.5 (citation omitted)

. T he Supr eme Court may disregard our post

- 2007 decisions on territorial law

— again, as long as the Court does not manifestly err in doing so

. 9

We see no reason to adopt a different standard for

our pre

- 2007 precedents

. Section 1613 does not distinguish between cases handed down before and after

9 We should note that the Virgin Islands Supreme Court would not be free to reject our post

- 2007 decisions on local law if we had overturned a Supreme Court decision for being inescapably wrong.24 the Supreme Court’s founding, n or do our precedents such as Pichardo and Lewis . In fact, § 1 613 allows the Virgin Islands Supreme Court to develop its own “institutional traditions.” This assumes that the Supreme Court “will h ave the freedom” to create its own “legal precedent.” Pichardo , 613 F.3d at 98 (quoting Haeuser

, 368 F.3d at 1099). The Supreme Court would have far less freedom to do so if it remained bound to our pre

2007 cases.
More to the point, courts adopting the pr ecedents of past courts typically have the freedom to overturn those precedents. For example, the Eleventh Circuit branched off from the Fifth Circuit in 1981. Although the Eleventh Circuit relies on pre

- 1981 Fifth Circuit cases, it is free to overrule the m. See Bonner v. City of Prichard

, 661 F.2d 1206, 1210 (11th Cir. 1981) (en banc) (“The decisions of the former Fifth Circuit, adopted as precedent by the Eleventh Circuit, will, of course, be subject to the power of the Eleventh Circuit sitting en banc to overrule any such decision.”). The Supreme Court of Guam has similarly claimed the authority to reject Ninth Circuit precedents from a time when it provided the final word on local law:
[T]his Court does not recognize the decisions of the Appellate Divisi on [of the District Court of Guam] as controlling our construction of law. We consider its25 opinions as precedent that is binding upon the trial courts of Guam, but these decisions, like those of the [Ninth Circuit] Court of Appeals, are considered persuasi ve authority when we consider an issue.

. . . It should be underscored that the creation of the Supreme Court of Guam did not erase pre

- existing case law. Precedent that was extant when we became operational continues unless and until we address the issues discussed there.

Guam v. Quenga

, No. CRA96

- 005 , 1997 WL 460709, at *4 n.4 (Guam May 18, 1997).
We therefore conclude that the Virgin Islands Supreme Court may reject our local decisions that predate its establishment. Of course, just as the Supreme Court of Guam was subject to a manifest

- error standard of review during the Ninth Circuit’s short

- lived certiorari period, the Virgin Islands Supreme Court is subject to the same standard of review during our certiorari period

. This standard certainly limits the Supreme Court’s freedom to reject our decisions. But it does not force the Supreme Court to follow us in lock

- step

.
In a last

- ditch effort, Phillip contends that Local Appellate Rule 112.1(a)(1) binds the Supreme Court to

our pre

- 2007 local decisions. Thi s rule states that when deciding whether to grant certiorari, we will consider whether “[t]he Supreme Court of the Virgin Islands has26 decided a question in a way that conflicts with applicable decisions of this court or the United States Supreme Court.” Ac cording to Phillip, this rule is an assertion that the Supreme Court must follow our pre

- 2007 precedents. But the rule makes no such assertion

— it states that we will consider granting certiorari when the Supreme Court disagrees with us, nothing more.

V

The final question is whether the Supreme Court’s decision to reject Tavarez was manifestly erroneous

. Phillip argues that any disagreement with our precedents meets this standard such that no additional inquiry is
necessary

. If we reject this absolute rule, Phillip also argues that the Supreme Court’s decision to reject Tavarez in particular was manifestly erroneous. We reject both arguments.

F irst

, however, we consider what it means for a decision to be manifestly erroneous or inescapably
wrong. We have yet to conclude that a decision of the Virgin Islands Supreme Court meets this standard. For its part, the Ninth Circuit only once concluded that a decision of the Supreme Court of Guam was manifestly erroneous. In Haeuser , the Ninth Circuit overturned the Gu am Supreme Court for failing to apply a rule that it h ad adopted in the same opinion. 368 F.3d at 1101 (“[T]he Supreme Court was required, under the very standard it announced earlier in its opinion, to review27 ‘the record .

. . in its entirety,’ and then a pply the law to the facts.”) (quoting Haeuser v. Dep ’ t of Law

, No. CVA98

- 009, 1999 WL 257611, at *2 (Guam Apr. 30, 1999)).
According to the United States Supreme Court, to reverse under this standard, “it would not be sufficient if

we .

. . merely disagree d with that interpretation. Nor would it be enough that the .

. . tribunal chose what might seem, on appeal, to be the less reasonable of two possible interpretations.” Sancho , 308 U.S. at 471. T o warrant reversal, then, t he Virgin Islands Supreme Court mu st commit an egregious error

— for example, by issuing an opinion with a significant internal inconsistency or by blatantly ignor ing the plain text of a statute. More than mere disagreement is necessary.
We refuse to say that any disagreement with our preced ents is, without further question, manifestly

erroneous. For starters, some issues of local law are within the discretion of the highest court in that jurisdiction. For example, the Virgin Islands Supreme Court has the authority to shape the common law wit hin the Virgin Islands. See Banks v. Int’l Rental & Leasing Corp. , 55 V.I. 967, 980 (2011) (concluding that it “possesses the inherent power to shape the common law in the Virgin Islands”). It is unclear how its common

- law decisions could be inescapably wr ong

— even those decisions that disagree with our pre

- 2007 cases

— because28 it has the inherent authority to shape the common law as it deems appropriate

.
But the common law is not at issue in this case. We face a question of statutory interpretation, and such questions are more likely to have answers that are either objectively right or objectively wrong. Even so, we
cannot say that all disagreement s with us must be wrong. After all, we implicitly acknowledge that our precedents are imperfect when we decide to limit or overrule them. See, e.g.

, In re Grossman’s Inc. , 607 F.3d 114, 121 (3d Cir. 2010) (en banc) (overruling a sixteen

- year

- old precedent); Animal Sci. Products, Inc. v. China Minmetals Corp. , 654 F.3d 462, 467

– 68 & n.6 (3d Cir. 2011) (overruling two T hird Circuit precedents that conflicted with Supreme Court case law); see also Montana v. Hall , 481 U.S. 400, 408 (1987) (Marshall, J., dissenting) (“We are not infallible, as is evidenced, for example, by the number of cases each Term that are dismissed a fter plenary briefing and oral argument as havin g been improvidently granted.”) . And the Supreme Court explicitly acknowledges our imperfections any time it reverses a decision of this Court

. See, e.g , C oleman v. Johnson , 132 S. Ct. 2060, 20 65 (2012) (per curiam), rev’g Johnson v. Mechling

, 446 F. App’x 531 (3d Cir. 2011 ). We therefore reject Phillip’s general argument that any disagreement with our pre

- 2 007 cases is necessarily wrong.29 We turn to Phillip ’s alternative argument that the Supreme Court manifes tly erred when it rejected Tavarez in particular

. Defoe rejects this argument , but he first contends that we should not consider this question at all

. For one thing, Defoe claims that this narrow question is outside the scope of certiorari. We disagree. We granted certiorari to decide whether the Supreme Court “has the authority, under 48 U.S.C. § 1613, to disregard precedent set by the Third Ci rcuit . . . .” See Order Granting Pet. Writ Cert. at 1, Defoe , No. 12

- 1586 (emphasis added) (citing Pet. Writ Cert . at 9). We interpret the word “precedent” to mean both precedents generally and Tavarez in particular

. The parties apparently adopted this interpretation , too

— both side s addressed the Supreme Court’s treatment of Tavarez in their briefs. 10

Next

, Defoe clai ms that the Supreme Court’s decision does not conflict with our decision in Tavarez

. This suggestion is wrong. Defoe points out that the defendant in Tavarez was the plaintiff’s supervisor, see 372 F.3d at 189, whereas Phillip was merely Defoe’s

10 In our view, it is significant that our grant of

ce rtiorari used the singular form “precedent,” not the plural form “precedents.” Moreover, the greater includes the lesser, and Tavarez certainly is a precedent of our Court. Finally, Defoe is not harmed by our interpretation because we ultimately affirm the Supreme Court.30 coworker. This factual distinction is of no consequence because Tavarez explicitly applies to coworkers as well

. See id. at 191 ( noting that “s crutiny of the plain language

. . . fails to reveal any intent by the Virgin Islands’ legislature to address whether an inj ured employee may initiate a civil action against a co

- employee or a supervisor of the same employer ” (emphasis added) ). For that reason, t he Supreme Court rightly concluded that its decision conflicts with ours. Defoe

, 2012 WL 37404, at *12 (“We acknowled ge that the Superior Court faithfully applied precedent that is binding on it when it granted Phillip’s motion for summary judgment based on Tavarez

. ”).
That brings us back to Phillip’s claim that the Supreme Court erroneously reject ed Tavarez . In Tavarez

, we interpreted 24 V.I. Code § 284:
(a) When an employer is insured under this chapter, the right herein established to obtain compensation shall be the only remedy against the employer

. . . . (b) For the purposes of this section, .

. . [t]he ‘statutory e mployer and borrowed servant’ doctrine are not recognized in this jurisdiction, and an injured employee may sue any person responsible for his injuries other than the employer named in a certificate of insurance

. . . .31 We concluded that § 284(a) prevents law suits against coworkers, despite the statement in subsection (b) that

“ an injured employee may sue any person responsible for his injuries other than the employer named in a certificate of insurance ” (emphasis added). We held that “§ 284(b) alters only the immunity that statutory employers previously enjoyed, subjecting these statutory employers to personal liability if they are not named in the certificate of insurance. ” Tavarez , 372 F.3d at 192.
The statutory canon ejusdem generis supports this inter pretation. As we concluded in Tavarez , “the general term ‘any person’ in the second sentence of § 284(b) is a reference to the preceding specific terminology discussing statutory employers and borrowed servants.” Id

. This means that the term “any person” d oes not include coworkers generally. In addition

, suits against coworkers might frustrate the purpose of § 284(a) because “ an employer would normally indemnify or assume the defense of its employee sued for negligence. ” Id.

In our view, Tavarez remains th e soundest interpretation of § 284. Even so, to warrant reversal, Defoe must be more than simply wrong. It must be inescapably wrong. And t he Supreme Court’s opinion does not meet this standard. As we recognized in Tavarez

, the Supreme Court’s interpretati on is defensible on textual grounds : “[T]he apparent breadth of the term32 ‘any person,’ combined with the fact that [the defendant] was not personally named in the certificate of insurance, appears to give [that] argument some support.” Id. at 191.

T he anal ysis in Defoe is quite thorough and not obviously flawed. The Supreme Court cited twenty

- eight instances where, despite a statutory scheme creating employer immunity, a court has allowed an injured employee to sue a coworker. See Defoe , 2012 WL 37404, at * 5 n.6; see, e.g. , Highway Constr. Co. v. Moses , 483 F.2d 812, 815 (8th Cir. 1973) (interpreting the South Dakota workers’ compensation statute and concluding that “[t]he employer’s immunity from suit by his employees, however, does not extend to immunize a personally negligent employee from suit by coworkers whom he has injured”)

. But see, e.g.

, Bresnahan v. Barre

, 190 N.E. 815, 817 (Mass. 1934)

. The Defoe opinion does
not contain a major internal inconsistency

— unlike the decision that the Ninth Circuit rev ersed in Haeuser

. See 368 F.3d at 1101 (reversing the Guam Supreme Court)

. Moreover, it is hard to fault the Supreme Court for not invoking ejusdem generis , a canon we use to discover legislative intent

. The canon does not apply when the text and structure is sufficiently clear

— which often is a close question, as it was in this case. See Waterfront Comm’n of N.Y. Harbor v. Elizabeth

- Newark Shipping, Inc. , 164 F.3d 177, 184 (3d Cir. 1998) ( noting that “ [t] he principle of ejusdem generis

. . . is not a rule o f law but merely a33 useful tool of construction resorted to in ascertaining legislative intent. The rule should not be employed when the intention of the legislature is otherwise evident ” (quotation marks and citation omitted) ); Norfolk & W. Ry. v. Am. Trai n Dispatchers Ass’n , 499 U.S. 117, 129 (1991) (“[ Ejusdem generis ] does not control, however, when the whole context dictates a different conclusion.”).
Finally, the Virgin Islands Supreme Court considered the implications of its decision. It noted that if employers fear the costs of indemnifying their employees, they can contractually agree not to provide indemnification. Defoe , 2012 WL 37404, at *11. Although t his argument ignores the reality that employers have already entered many contracts based on the assumption that such agreements are unnecessary, it is still a reasonable argument going forward. We therefore conclude that Defoe is neither manifestly erroneous nor inescapably wrong.

* * *
The Supreme Court of the Virgin Islands is on the road to Erie R. Co. v. Tompkins , 304 U.S. 64, 78 (1 938) (requiring federal courts to defer to local courts on issues of local law)

. We are confident that it will soon reach its destination. For now, we defer to the Supreme Court on questions of local law, subject to a mani fest

- error standard of review, including with respect to our pre

2007 precedents. Because the Supreme Court did not34 manifestly err in rejecting Tavarez , we will affirm its judgment.1 ROTH, Circuit Judge , Concurring

. I agree with the Majority that we have jurisdiction of this petition for certiorari and that the Supreme Court of the Virgin I slands has the authority under 4 8 U.S.C. § 1613 to disregard precedent set by the Third Circuit Court of Appeals during a time when the Third Circuit Court of Appe als was the only source of binding authority construing territorial law. Because the grant of certiorari in this case bears only on the general question and does not speak of any consideration of manifest error in this specific case, I find Section V of t he majority opinion to be beyond the scope of the grant of certiorari here. For that reason, I conclude that Section V is not necessary to our response to this petition for certiorari and I do not join in it.