1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-1995

Moravian v Rawlins

Precedential or Non-Precedential:

Docket 94-7359

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Recommended Citation

"Moravian v Rawlins" (1995). 1995 Decisions. Paper 288.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-7359 

 

THE MORAVIAN SCHOOL ADVISORY BOARD OF ST. THOMAS, V.I. 

V. 

HELEN RAWLINS; THE DEPARTMENT OF LABOR, 

GOVERNMENT OF THE VIRGIN ISLANDS 

DEPARTMENT OF LABOR, GOVERNMENT OF THE VIRGIN ISLANDS, 

 Appellant 

 

No. 94-7421 

 

JANE ROGERS, on behalf of herself; 

THE ESTATE OF INGRID CORENA ROGERS; 

NIRONE PAVON FRANCIS, minor*; 

LAUREL SIMONE FRANCIS, minor 

V. 

GOVERNMENT OF THE VIRGIN ISLANDS; 

ST. THOMAS HOSPITAL; ELENA AGUAS, M.D., 

 Appellants 

* (Amended as per the Clerk's 12/27/94 Order) 

 

ON APPEAL FROM THE DISTRICT COURT 

OF THE VIRGIN ISLANDS 

(D.C. Civil Action Nos. 91-00364 and 93-00055) 

 

Argued April 18, 1995 

Before: BECKER, NYGAARD and ROTH, Circuit Judges

(Opinion Filed November 14, 1995) 

ROBERT W. BORNHOLT, ESQUIRE (Argued) 

FREDERICK HANDLEMAN, ESQUIRE 

PAMELA R. TEPPER, ESQUIRE 
2 

Office of Attorney General of Virgin Islands 

Department of Justice 

48B-50 Kronprindsens Gade, Suite 1 

Charlotte Amalie, St. Thomas 

United States Virgin Islands 00802 

Attorneys for Appellant Department of Labor 

RICHARD R. KNOEPFEL, ESQUIRE 

STEVEN L. MIERL, ESQUIRE (Argued) 

Briggs, Knoepfel & Ronca 

30 Dronningens Gade 

P.O. Box 6286 

Charlotte Amalie, St. Thomas 

United States Virgin Islands 00804 

Attorney for Appellants Gov't Virgin Islands, 

St. Thomas Hospital and Elena Aguas, M.D. 

DENISE R. REOVAN, ESQUIRE (Argued) 

4A Commandant Gade 

Charlotte Amalie, St. Thomas 

United States Virgin Islands 00802 

Attorney for Appellee Moravian School 

DEBORAH K. ROBINSON, ESQUIRE 

Legal Services of the Virgin Islands 

57 Dronnigens Gade 

Charlotte Amalie, St. Thomas 

United States Virgin Islands 00801 

Attorney for Appellee Helen Rawlins 

RICHARD AUSTIN, ESQUIRE (Argued) 

Legal Services of the Virgin Islands 

No. 3017 Estate Orange Grove 

Christiansted, St. Croix 

United States Virgin Islands 00820 

Attorney for Appellee Helen Rawlins 

LEMUEL F. CALLWOOD, ESQUIRE 

VERA D. JEAN, ESQUIRE (Argued) 

Law Office of Lemuel F. Callwood 

P.O. Box 7397 

#1 4th Street Estate Thomas 

Charlotte Amalie, St. Thomas 

United States Virgin Islands 00801 

Attorney for Appellees Jane Rogers, 

Estate of Ingrid Corena Rogers, 

Nirone Pavon Francis, and 

Laurel Simone Francis 

 
3 

OPINION OF THE COURT 

 

NYGAARD, Circuit Judge: 

 These two appeals were combined for this opinion 

because the issue in both is whether the District Court of the 

Virgin Islands, when it lacks subject matter jurisdiction, may 

nonetheless transfer a cause to the Territorial Court of the 

Virgin Islands rather than dismiss it. Because we conclude that 

a district court must dismiss the suit where there is no 

colorable basis for exercising subject matter jurisdiction, we 

will reverse and remand both cases with instructions to dismiss. 

I. 

 Helen Rawlins filed a complaint with the Virgin Islands 

Department of Labor, alleging that she was wrongfully discharged 

from her employment as a teacher with the Moravian School. She 

alleged only claims based on territorial law. The hearing 

officer ruled that Rawlins had been wrongfully discharged and 

ordered that Moravian reinstate her with back pay. The Moravian 

School Advisory Board filed a writ of review in the District 

Court of the Virgin Islands. Rawlins then filed a motion to 

dismiss based on lack of subject matter jurisdiction. 

 Moravian, which did not respond to the motion to 

dismiss, did not then and does not now argue that there is 

federal jurisdiction over the suit. Nevertheless, the district 
4 

court, rather than granting the motion to dismiss, transferred 

the case to the territorial court. 

II. 

 One day before the statute of limitations expired, 

appellee Jane Rogers, on behalf of herself and the estate and 

heirs of decedent Ingrid Corena Rogers, filed a medical 

malpractice action in the District Court of the Virgin Islands 

against St. Thomas Hospital, Elena Aguas, M.D., and the 

Government of the Virgin Islands, which owns, operates and staffs 

the hospital. The suit arises from the allegedly negligent 

treatment given Ingrid Corena Rogers at the hospital, which 

treatment is alleged to have resulted in her death. 

 The complaint alleged only medical malpractice and 

related negligence claims. The defendant-appellants responded 

with a motion to dismiss for, inter alia, lack of subject matter 

jurisdiction. The district court stated in the hearing 

transcript that it would grant the motion to dismiss and transfer 

the action to the territorial court. However, the court 

ultimately ordered transfer of the case without mentioning 

dismissal. 

III. 

 The U.S. Consititution, Article IV, Section 3 "empowers 

Congress to establish all necessary rules and regulations 

concerning the unincorporated territory of the Virgin Islands, 

including the power to designate the jurisdiction of the District 
5 

Court and the Territorial Court." Brow v. Farrelly, 994 F.2d 

1027, 1032 (3d Cir. 1993). Pursuant to this power, in 1954, 

Congress enacted the Revised Organic Act of the Virgin Islands, 

Act of July 22, 1954, ch. 558, §§ 22-23, 68 Stat. 497 (codified 

as amended at 48 U.S.C. § 1541 et seq.), which is "the Virgin 

Islands' equivalent of a constitution." Brow, 994 F.2d at 1032. 

 Section 1612 of the 1954 Revised Organic Act set forth 

the jurisdiction of the District Court of the Virgin Islands, 

which included 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 

the local courts over civil actions where the amount in 

controversy was less than $500. Act of July 22, 1954, ch. 558, 

§§ 22-23, 68 Stat. 506 (amended 1978, 1984); Brow, 994 F.2d at 

1032. Section 1613 of the 1954 Act also provided that the local 

courts shared concurrent jurisdiction with the district court 

over all actions to the extent jurisdiction was conferred upon 

them by local law. Act of July 22, 1954, ch. 558, § 23, 68 Stat. 

506 (amended 1984); Carty v. Beech Aircraft Corp., 679 F.2d 1051, 

1056 n.6 (3d Cir. 1982). 

 In 1984, Congress amended the Revised Organic Act to 

impose new limits on the general original jurisdiction of the 

District Court of the Virgin Islands over cases involving local 

law. Brow, 994 F.2d at 1033. Specifically, Congress amended 

§ 1612(b) of the Revised Organic Act to grant the district court, 

in addition to its federal question and diversity jurisdiction, 

general jurisdiction over "all causes in the Virgin Islands the 
6 

jurisdiction over which is not then vested by local law in the 

local courts of the Virgin Islands." 48 U.S.C. § 1612(b). At 

the same time, Congress amended § 1611(b) of the 1954 Act, 

permitting the Virgin Islands legislature to 

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 

the laws of the United States does not have 

exclusive jurisdiction. Such jurisdiction 

shall be subject to the concurrent 

jurisdiction conferred on the District Court 

of the Virgin Islands by section 1612(a) 

[federal question and diversity jurisdiction] 

and (c) [criminal jurisdiction] of this 

title. 

 

48 U.S.C. § 1611(b). 

 Thus, as pertaining to purely local matters, the 1984 

amendment eliminated concurrent jurisdiction in the district 

court if jurisdiction became vested in the local courts of the 

Virgin Islands. See Estate Thomas Mall, Inc. v. Territorial 

Court of the Virgin Islands, 923 F.2d 258, 260 (3d Cir.), cert. 

denied, 502 U.S. 808, 112 S. Ct. 50 (1991). Later, under 

§1611(b), the Virgin Islands legislature amended 4 V.I. Code 

§76(a) to vest original jurisdiction over all civil actions in 

the territorial court as of October 1, 1991. The amended section 

76(a) provides: 

Subject to the original jurisdiction 

conferred on the District Court by section 22 

[48 U.S.C. § 1612] of the Revised Organic Act 

of 1954, as amended, effective October 1, 

1991, the Territorial Court shall have 

original jurisdiction in all civil actions 

regardless of the amount in controversy.... 
7 

Accordingly, under § 1612(b), the district court was divested of 

jurisdiction over local civil actions as of October 1, 1991. 

Brow, 994 F.2d at 1034. 

 Although this divestiture is most directly applicable 

where a party files a complaint directly in the district court, 

as Rogers did, it also applies if a party files a writ of review 

in the district court, as Moravian did. Section 1421 allows a 

party to appeal an administrative determination to the district 

court, which, under section 1423, has the power to "affirm, 

modify, reverse, or annul the decision or determination 

reviewed...." However, because the amended section 76(a) divests 

the district court of jurisdiction over purely local matters, it 

also implicitly repealed section 1421 as it pertains to local 

matters. Thus, whether Moravian had filed a writ of review or a 

complaint, would not change our analysis. 

IV. 

 The Virgin Islands legislature derives its power to 

legislate from the Revised Organic Act. Brow, 994 F.2d at 1035 

n.6. The Act extends legislative power "to all rightful subjects 

of legislation not inconsistent with this chapter or the laws of 

the United States made applicable to the Virgin Islands...." 48 

U.S.C. § 1574(a); see also 48 U.S.C. § 1574(c) (Virgin Islands 

legislature may not amend or repeal local laws so as to be 

inconsistent with Revised Organic Act or laws of the United 

States applicable to Virgin Islands). 

 The Revised Organic Act of 1954 permitted the District 

Court of the Virgin Islands to transfer any action or proceeding 
8 

brought in the district court to an inferior court established by 

local law (i.e. the territorial court), as long as the action was 

within the jurisdiction of the inferior court and the transfer 

was made in the interest of justice. 1 V.I. Code, Historical 

Documents, Revised Organic Act of 1954 § 23 ("Any action or 

proceeding brought in the district court which is within the 

jurisdiction of an inferior court may be transferred to such 

inferior court by the district court in the interest of 

justice."). Section 32(b) of the Virgin Islands Code, title 4, 

was enacted pursuant to this section of the Revised Organic Act. 

See 4 V.I. Code Ann. § 32 note (Revision Note) (1967) (sections 

32(a) and (b) follow the language of §§ 22 and 23 of the Revised 

Organic Act of 1954). That section provides: 

Any action or proceeding brought in the 

district court which is within the jurisdiction of the territorial court may be 

transferred by the district court in the 

interest of justice to the territorial court 

for the proper judicial division. 

4 V.I. Code § 32(b). Similarly, section 77(b) of the Virgin 

Islands Code states: 

A judge of the district court may, in the 

interest of justice, cause a case or cases 

pending in the territorial court to be 

transferred to the district court and may 

transfer cases pending in the district court 

to the territorial court provided that such 

transferred case is within the jurisdictional 

competence of [the] court to which the 

transfer is made. 
9 

4 V.I. Code § 77(b). Although section 77(b) does not state its 

origins, presumably, it was also enacted pursuant to § 23 of the 

Revised Organic Act of 1954. 

 In the 1984 amendments to the Act, however, Congress 

deleted the language in § 23 permitting the district court to 

transfer actions to the inferior courts. 48 U.S.C. § 1613 (1984 

amendment). Once that language was deleted, the Virgin Islands 

legislature lacked the authority to grant the District Court of 

the Virgin Islands the power to transfer actions to the 

territorial court. Although Congress' intent in deleting the 

transfer language is not manifest in the 1984 amendment, we may 

infer that Congress deleted the transfer provision purposefully 

with the intent to do away with such transfers. 

 Our disposition of the transfer issue, however, need 

not turn on inferences alone. As amended, § 1613 now provides 

for the relations between the District Court of the Virgin 

Islands and the territorial court to parallel the relations 

between the federal courts and the state courts. 48 U.S.C. 

§1613. Congress, in turn, has defined the authority of the 

federal courts to transfer a case as follows: 

Whenever a civil action is filed in a court 

as defined in section 610 of this title or an 

appeal...and that court finds there is a want 

of jurisdiction, the court shall, if it is in 

the interest of justice, transfer such action 

or appeal to any other such court, in which 

the action or appeal could have been brought 

at the time it was filed or noticed.... 

28 U.S.C. § 1631 (emphasis added). "Court" is defined in § 610 

as 
10 

the courts of appeals and district courts of 

the United States, the United States District 

Court for the District of the Canal Zone, the 

District Court of Guam, the District Court of 

the Virgin Islands, the United States Court 

of Federal Claims, and the Court of International Trade. 

28 U.S.C. § 610. 

 Because §§ 1631 and 610 clearly demonstrate that 

Congress intended to limit the authority of the federal courts to 

transfer cases only to other federal courts, we have held that 

§ 1631 provides no authority for a federal court to transfer a 

case over which it lacks jurisdiction to a state court. 

McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Ctiff 

sued in federal district court, alleging, along with state law 

claims, that the defendant had violated federal securities laws. 

683 F.2d at 745. The district court granted summary judgment for 

the defendant, finding no cause of actiobanc), a district court's 

transfer of an action to a territorial court, where the district 

court has no colorable basis for exercising subject matter 

jurisdiction, is inconsistent with § 1631, made applicable to 

U.S. territories by § 1613, and thus is outside of the inherent 

authority of the district court. 

 Perhaps most significant to our disposition of these 

cases, however, is Federal Rule of Civil Procedure 12(h)(3), 

which states that, "[w]henever it appears by suggestion of the 

parties or otherwise that the court lacks jurisdiction of the 

subject matter, the court shall dismiss the action." (Emphasis 

added). In Bank of Nova Scotia v. United States, 487 U.S. 250, 
11 

254, 108 S. Ct. 2369, 2373 (1988), the Supreme Court held that a 

federal court could not invoke its supervisory power "to 

circumvent the harmless-error inquiry prescribed by Federal Rule 

of Criminal Procedure 52(a)." The Court explained that Rule 52 

is "as binding as any statute duly enacted by Congress and 

federal courts have no more discretion to disregard the Rule's 

mandate than they do to disregard constitutional or statutory 

provisions." Id. at 255, 108 S. Ct. at 2373-74. Rule 12 (h)(3) 

is equally as binding on us. 

 Neither Rogers nor Moravian disputes that the district 

court lacked jurisdiction over their lawsuits. It is clear, 

therefore, that the district court not only lacked express or 

implied authority under federal law to transfer these cases to 

the territorial court, but was expressly compelled by Rule 

12(h)(3) to dismiss them. It is equally clear that no such 

authority to transfer can be derived from the Virgin Islands 

Code, inasmuch as the laws of the Virgin Islands must be 

consistent with the laws of the United States. 48 U.S.C. 

§1574(a). Accordingly, we conclude that the Virgin Islands 

transfer provisions are invalid to the extent they purport to 

allow a district court to transfer a case over which it lacks 

jurisdiction to the territorial court. 

 The appellees counter that our decision in Weaver v. 

Marine Bank, 683 F.2d 744 (3d Cir. 1982) allows the district 

court to transfer a case over which it lacks subject matter 

jurisdiction to a state or territorial court where a state or 

territorial statute authorizes the transfer. The appellees' 
12 

reliance on Weaver is misplaced. In Weaver, the plaintiff sued 

in federal district court, alleging, along with state law claims, 

that the defendant had violated federal securities laws. 683 

F.2d at 745. The district court granted summary judgment for the 

defendant, finding no cause of action under those laws. We 

reversed on appeal, and were in turn reversed by the Supreme 

Court, which held that the district court's decision to grant 

summary judgment was correct because the case did not involve a 

"security" within the scope of federal law. Id. 

 On remand, we noted that Pennsylvania authorized 

transferring a case, improperly brought in federal court, to the 

proper Pennsylvania court. Id. at 746. Nevertheless, we made 

clear that the district court's power to transfer the case in 

Weaver was not circumscribed by lack of subject matter 

jurisdiction: 

We recognize that such a transfer by a 

district court is an exercise of a power 

granted not by federal, but state, law. 

Jurisdiction of a federal court is dependent 

upon federal statutory authority, but that 

principle does not control the issue here. 

Unquestionably, at the time the suit was

filed in the district court, there was a

colorable federal claim and pendent

jurisdiction could properly be assumed. The 

question presented then is, whether the 

district court, once having acquired

jurisdiction, can transfer the matter to the 

state court by virtue of a state enabling 

statute. We are persuaded that it can. 

Id. at 747 (emphasis added) (footnote omitted). Finding "no 

equitable considerations which would bar transfer...," we 

remanded the matter to the district court with directions to 
13 

transfer the pendent state claims to the state court. Id. at 

748. 

 These cases present far different situations. Here, 

the respective appellees never even purported to present a 

colorable federal question or claim of diversity jurisdiction. 

Rather, they failed to recognize that the Virgin Islands 

legislature had divested the district court of jurisdiction over 

purely local claims, and erroneously filed suit in the district 

court alleging claims premised solely on local law. From the 

outset, there never was a basis for federal jurisdiction. 

 We think the distinction is aptly noted in the 

dubitante opinion in Weaver, which noted the difference between a 

Rule 12(b)(1) motion to dismiss for lack of subject matter 

jurisdiction and a Rule 12(b)(6) motion to dismiss for failure to 

state a claim. Id. at 749. "It is only if the former would have 

succeeded that the district court lacks power to entertain the 

pendent claim." Id. (Sloviter, J., dubitante opinion) (citing 

Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1946) 

("Whether the complaint states cause of action on which relief 

could be granted is a question of law and just as issues of fact 

it must be decided after and not before the court has assumed 

jurisdiction over the controversy.")); see also 5A Charles A. 

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, 

at 77 (Supp. 1995). 

 Our decisions since Weaver have emphasized this 

distinction. In McLaughlin, supra, the plaintiff sued in 

district court, basing jurisdiction on diversity of citizenship. 
14 

721 F.2d at 427. The district court found that there was in fact 

no diversity of citizenship but, nevertheless, purporting to 

follow Weaver, transferred the case to Pennsylvania court 

pursuant to the same Pennsylvania transfer statute at issue in 

Weaver. Id. at 428. 

 On appeal, we emphasized that Weaver dealt with a 

different situation -- one in which "we characterized the state 

law claim as pendent to plaintiffs' colorable federal claim that 

defendant had violated section 10(b) of the Securities Exchange 

Act of 1934...." Id. at 429. We noted that it was doubtful 

whether the plaintiff in McLaughlin had presented a colorable 

federal claim, and that "[t]here is a serious question whether 

the Weaver precedent can be extended to authorize the district 

court to transfer a state law claim in the absence of any 

colorable federal claim to which it could have been pendent." Id.

at 430. However, we did not reach that question in McLaughlin

because, after the district court's transfer order, Pennsylvania 

amended its transfer statute to permit the preservation of claims 

filed in federal court, even without the transfer order. Id. 

Nevertheless, McLaughlin makes clear that Weaver provided no 

authority for the district court to transfer this case, nor could 

it provide such authority, given the plain language of Rule 

12(h)(3). 

 More recently, we addressed an analogous situation in 

Bradgate Assocs. v. Fellows, Read & Assocs., Inc., 999 F.2d 745 

(3d Cir. 1993). Bradgate Associates brought a diversity suit in 

district court and later removed a related state court case 
15 

between the same parties to the district court. Id. at 747. The 

two cases were consolidated, but the district court concluded 

that it lacked diversity jurisdiction and remanded the 

consolidated case to state court. Id. On appeal, we held that 

the district court erred by remanding to state court the portion 

of the case that was originally filed in federal court, and 

instead should have dismissed that part of the case. We 

distinguished 28 U.S.C. § 1447(c), which requires a district 

court to remand a case over which it lacks jurisdiction to the 

court from which it was removed: 

Lack of subject matter jurisdiction does not 

extinguish a removed state court case; 

section 1447(c) only requires the district 

court to remand it to state court. In 

contrast, lack of subject matter jurisdiction 

terminates a case originally filed in federal 

court because Rule 12(h)(3) instructs the 

district court to dismiss cases which do not 

meet jurisdictional prerequisites. See

Weaver v. Marine Bank, 683 F.2d 751 (3d Cir. 

1982) (Sloviter, J., dubitante opinion) ("I 

need cite no authority for the proposition 

that the power of the federal courts is 

defined by Article III and the acts of 

Congress made pursuant thereto. No federal 

statute authorizes transfer of cases from a 

federal to a state court."). 

Id. at 751 (footnote omitted). We noted that Weaver dealt with 

pendent state claims following a determination that federal 

question jurisdiction was lacking. Id. at 751 n. 5. While we 

also noted that, unlike in Weaver, there was no state transfer 

statute at issue in Bradgate Associates, the plain language of 

Rule 12(h)(3) makes clear that, where it appears at the outset 

that the district court is without subject matter jurisdiction, 
16 

it is powerless to do anything but dismiss the action. Weaver is 

consistent with this rule in that the district court there had 

jurisdiction because the plaintiff had pleaded a colorable 

federal claim. Weaver, 683 F.2d at 747; see also Bell, 327 U.S. 

at 682, 66 S. Ct. at 776.0 There is no such claim in the present 

case. 

V.

 We conclude that the district court erred by 

transferring these cases to the territorial court. The district 

court was compelled by Rule 12(h)(3) to dismiss both actions. 

Accordingly, we will vacate the transfer orders and remand with 

instructions to dismiss each cause0. 

The Moravian School Advisory Board of St. Thomas, V.I. v.

Helen Rawlins; The Department of Labor, Government of The Virgin 

Islands Department of Labor, Government of The Virgin Islands, 

Appellant, No. 94-7359 

 

0In Brow, we upheld the District Court of the Virgin Islands' 

order dismissing, for lack of subject matter jurisdiction, an 

action to enforce an order of the territorial court. In a 

footnote, we stated that the district court could have elected to 

transfer the case to the territorial court pursuant to the Virgin 

Islands transfer provisions at issue here. 994 F.2d at 1037 n. 

10. However, because this statement was dictum, we are not bound 

by it, and decline to follow it inasmuch as it is in 

contradiction with Rule 12(h)(3). 

0Without prejudging the matter, we note that Rogers, in 

particular, may not be totally without remedy as she may have an 

action against her attorney for malpractice. Her medical 

malpractice action was filed in the district court on April 5, 

1993, more than a year and a half after October 1, 1991, when the 

local legislature vested jurisdiction over such matters in the 

territorial court. 
17 

Jane Rogers, on behalf of herself; THE ESTATE OF INGRID CORENA 

ROGERS; NIRONE PAVON FRANCIS, minor; LAUREL SIMONE FRANCIS, minor 

v. GOVERNMENT OF THE VIRGIN ISLANDS; ST. THOMAS HOSPITAL; ELENA 

AGUAS, M.D., No. 94-7421 

BECKER, Circuit Judge, concurring and dissenting. 

 The majority believes the district court's transfer of 

Ms. Rogers' and Moravian's claims to the territorial court is 

inappropriate for three reasons. I find its first two reasons 

(centering on the change in language of 4 V.I. Code § 23 and on 

an analysis of 28 U.S.C. § 1631 and 48 U.S.C. § 1613) 

unpersuasive. I agree in principle with the third prong of the 

majority's analysis (centering on Federal Rule of Civil Procedure 

12(h)(3)) but believe that it counsels remand of Moravian's case 

for reevaluation of the jurisdictional issue. While Rule 

12(h)(3) precludes transfer of Rogers' claim, this result so 

troubles me that I am prompted to recommend to the Virgin Islands 

Senate that it enact savings legislation that would, in the 

future, save claims such as those of Rogers and Moravian from 

extinction. 

I. 

 Under the Revised Organic Act of 1954, the District 

Court of the Virgin Islands was permitted to transfer any action 

brought in the district court to the territorial court. 4 V.I. 

Code, Historical Documents, Revised Organic Act of 1954 § 23. In 
18 

1984, as part of a comprehensive restructuring of Virgin Islands 

jurisdiction, Congress amended § 23 by deleting the language that 

authorized such transfers. See 48 U.S.C. § 1613, note (1984 

Amendment). The majority infers that this deletion evinces 

congressional intent to prohibit such transfers. I disagree. 

Deciphering congressional silence is always a tricky business. 

This is especially true when, as here, Congress authorizes a 

total restructuring with sweeping legislation. In such 

circumstances, no reasonable inference can be drawn from 

Congress' deletion of any particular provision. 

 To further buttress its inferential argument that the 

District Court of the Virgin Islands may not lawfully transfer a 

case to the Territorial Court of the Virgin Islands, the majority 

relies upon 28 U.S.C. § 1631 and 48 U.S.C. § 1613. According to 

the majority, § 1613 "provides for the relations between the 

District Court of the Virgin Islands and the territorial court to 

parallel the relations between the federal courts and the state 

courts."0 The majority further explains that § 1631 "limits the 

authority of the federal courts to transfer cases only to other 

 

0That section reads: 

The relations between the courts established by the 

Constitution or laws of the United States and the 

courts established by local law with respect to 

appeals, certiorari, removal of causes, the issuance of 

writs of habeas corpus, and other matters or 

proceedings shall be governed by the laws of the United 

States pertaining to the relations between the courts 

of the United States, including the Supreme Court of 

the United States, and the courts of the several States 

in such matters and proceedings. 

48 U.S.C. § 1613. 
19 

federal courts." (Emphasis added).0 Thus, federal courts may not 

transfer cases to state courts and, via § 1613, the District 

Court of the Virgin Islands may not transfer cases to the 

Territorial Court of the Virgin Islands. 

 In my view, the majority has mischaracterized § 1631. 

Section 1631 is an efficiency-oriented provision that governs 

transfers of cases between federal courts. The problem with the 

majority's analysis is that, as I document in footnote 3, the 

federal transfer provision, § 1631, deals only with the relations 

of different federal courts to each other.0 See also McLaughlin 

 

0The Section provides: 

 Whenever a civil action is filed in a court as defined 

 in section 610 of this title or an appeal . . . and 

 that court finds there is a want of jurisdiction, the 

 court shall, if it is in the interest of justice, 

 transfer such action or appeal to any other such court, 

 in which the action or appeal could have been brought 

 at the time it was filed or noticed. 

28 U.S.C. § 1631 (emphasis added). 

 "Court" is defined in § 610 as, "the courts of appeals 

and district courts of the United States, the United States 

District Court for the District of the Canal Zone, the District 

Court of Guam, the District Court of the Virgin Islands, the 

United States Court of Federal Claims, and the Court of 

International Trade." 28 U.S.C. § 610. 

0See S. Rep. No. 275, 97th Cong., 1st Sess. 11 (1981), which 

explains the purpose of 28 U.S.C. § 1631 as follows: 

 In recent years much confusion has been engendered 

by provisions of existing law that leave unclear which 

of two or more federal courts including courts at both 

the trial and appellate level--have subject matter 

jurisdiction over certain categories of civil actions. 

The problem has been particularly acute in the area of 

administrative law where misfilings and dual filings 

have become commonplace. The uncertainty in some 

statutes regarding which court has review authority 
20 

v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Cir. 1983). This 

has two implications. First, § 1631's failure to authorize 

transfers to state courts cannot fairly be read to proscribe such 

transfers. Second, § 1631 does not pertain to "relations 

between" federal and state courts and thus does not, via § 1613, 

affect the relations between the district and territorial courts 

of the Virgin Islands. 

 Thus, the only legal impediment to transferring cases 

to the territorial court is Federal Rule of Civil Procedure 

12(h)(3). This rule states that, "[w]henever it appears by 

suggestion of the parties or otherwise that the court lacks 

jurisdiction of the subject matter, the court shall dismiss the 

action." Fed. R. Civ. P. 12(h)(3) (Emphasis added). Consistent 

with principles announced by this court in Weaver v. Marine Bank, 

683 F.2d 744 (3d Cir. 1982), and McLaughlin v. Arco Polymers, 

Inc., 721 F.2d 426 (3d Cir. 1983), the majority interprets Rule 

 

creates an unnecessary risk that a litigant may find 

himself without a remedy because of a lawyer's error or 

a technicality of procedures. 

 At present, the litigant's main protective device, 

 absent an adequate transfer statute is the wasteful and 

 costly one of filing in two or more courts at the same 

 time. This puts increased burdens on the courts as 

 well as on the parties. 

 Although most problems in this regard relate to 

 controversies involving the district courts and the 

 court of appeals, there also have been cases involving 

 the Court of International Trade, and the Temporary 

 Emergency Court of Appeals. Therefore, the language of 

 Part A of Title III [§ 1631] is broadly drafted to 

 permit transfer between any two federal courts. 

Thus, this statute was written to cover federal transfers. It 

has nothing to say on the issue of transfers between federal and 

state courts. 
21 

12(h)(3) to bar transfer of an action when the court lacks 

subject matter jurisdiction. I agree. With this in mind, the 

majority correctly concludes that Ms. Rogers' case should be 

remanded with instructions to dismiss. 

 Contrary to the majority's suggestion, however, 

Moravian's case cannot be disposed of similarly. In her 

complaint filed with the Virgin Islands Department of Labor, Ms. 

Rawlins may have alleged a colorable federal claim of age and 

national origin discrimination. She averred, inter alia, that: 

 The employment practices at Memorial 

Moravian School, as well as its forms and 

conditions of employment have a disparate 

impact on persons who are of different 

national origin and are in the protected age 

group. For example: 

[A]. The majority of the faculty members are 

not in the protected age group. B. Rev. 

Peters favors recruiting persons who are from 

the former British Colonies of the West 

Indies, as he is. I am a native Virgin 

Islander. C. Persons who have been absent 

from work due to sickness or any other leave 

of absences did not have their employment 

affected as mine was. D. The person who 

replaced me (Mrs. Ham) is not in the 

protected age group, and is from one of the 

former British Colonies of the West Indies." 

(Complaint In Re Helen Rawlins, WD-005-90-STT 

- pages 1-3). 
22 

If Ms. Rawlins' originally alleged federal claims, such claims 

might provide an adequate basis for supplemental jurisdiction 

over her state law claims, see 28 U.S.C. § 1367, and thereby 

support Moravian's contention that the district court has the 

power to transfer. I would remand to the district court for 

determination of what claims Ms. Rawlins asserted and whether 

they support supplemental jurisdiction. If the court concludes 

that it has supplemental jurisdiction over Ms. Rawlins' state law 

claims, it should transfer them pursuant to 4 V.I. Code §§ 32(b), 

77(b).0 If not, it should dismiss them. 

II. 

 

0Section 32(b) provides: 

 Any action or proceeding brought in the district court 

 which is within the jurisdiction of the territorial 

 court may be transferred by the district court in the 

 interest of justice to the territorial court for the 

 proper division. 

4 V.I. Code § 32(b). 

 Section 77(b) provides: 

 A judge of the district court may, in the interest of 

 justice, cause a case or cases pending in the 

 territorial court to be transferred to the district 

 court and may transfer cases pending in the district 

 court to the territorial court provided that such 

 transferred case is within the jurisdictional 

 competence of [the] court to which the transfer is 

 made. 

4 V.I. Code § 77(b). 

 

 
23 

 While I must agree with the majority's conclusion as to 

Ms. Rogers' claim, I am nonetheless troubled by it. In 1984, 

Congress set in motion a restructuring of the entire Virgin 

Islands' judicial system. This restructuring divested the 

District Court of the Virgin Islands of its purely local 

jurisdiction and transferred it to the Territorial Court of the 

Virgin Islands. See generally Brow v. Farrelly, 994 F.2d 1027, 

1034 (3d Cir. 1993). Congress must have known that significant 

confusion including cases being filed in the wrong court would 

result during this restructuring.0 Allowing numerous actions to 

lapse due to statutory confusion seems improvident, and this 

rings especially true in the Virgin Islands. Deeply ingrained 

into the Virgin Islands legal culture is a policy of eschewing 

technical niceties in favor of hearing cases on the merits and 

effecting substantial justice. 

 In Ms. Rogers' case, the plaintiff's serious medical 

malpractice claim was filed in a timely manner, but the statute 

of limitations has now expired. Given Rule 12(h)(3), this 

improperly filed claim cannot be transferred to the appropriate 

court. The availability of a malpractice suit against a lawyer 

who may have various defenses or be uninsured and impecunious 

provides scant relief. To avoid this unduly harsh result, I urge 

the Virgin Islands Legislature to enact a savings statute, like 

the one in Pennsylvania, 42 Pa. Cons. Stat. Ann. § 5103(b) 

 

0For example, on February 3, 1993, Chief Judge Moore found it 

necessary to issue a memorandum of the entire Virgin Islands Bar 

on where writs of review should be filed. 
24 

(1995), which would allow preservation of claims filed in federal 

court without the necessity of a transfer order. Such a statute 

would permit litigants to refile cases dismissed by a district 

court for lack of subject matter jurisdiction in a state court 

simply by filing a certified transcript of the district court 

proceedings with the appropriate state authority. To eliminate 

any time limitation problems, the savings statute would allow 

litigants to use the date the federal suit was instituted as the 

filing date for the state law claim.0 In this manner, a savings 

statute would facilitate the efficient dispensation of justice 

throughout the Virgin Islands. 

 

0See McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 430-431 (3d 

Cir. 1983), for a further description of the Pennsylvania savings 

statute.