1

 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-4259

___________

ELIZABETH PICHARDO,

Petitioner

 v.

VIRGIN ISLANDS COMMISSIONER OF LABOR; 

COOL IT, INC. d/b/a AGAVE TERRACE RESTAURANT, 

 

Respondents

___________

On Writ of Certiorari from the Supreme Court

for the Virgin Islands

(S. Ct. Civ. No. 2007-061)

Argued December 2, 2009

Before: McKEE, Chief Judge, FUENTES, and NYGAARD,

Circuit Judges
2

(Opinion Filed: July 8, 2010)

Joel H. Holt, Esq. (Argued)

2132 Company Street

Christiansted, St. Croix

United States Virgin Islands, 00820

Counsel for Petitioner Elizabeth Pichardo

Vincent F. Frazer, Esq.

Elliott M. Davis, Esq.

Richard S. Davis, Esq. (Argued)

Department of Justice

34-38 Kronprindsens Gade

GERS Building, Second Floor

St. Thomas

United States Virgin Islands, 00802

Counsel for Respondent Government of the Virgin

Islands

OPINION OF THE COURT

FUENTES, Circuit Judge:

Elizabeth Pichardo was terminated from her employment
3

at Agave Terrace Restaurant in St. Thomas after violating a

series of workplace rules and committing an act of

insubordination. She filed a complaint with the Virgin Islands

Department of Labor (“DOL”) under the territory’s Wrongful

Discharge Act. The DOL found that Pichardo was fired for

cause and denied her claim. The Superior Court of the Virgin

Islands upheld the DOL’s decision and rejected Pichardo’s due

process claims. Pichardo appealed the denial of her due process

claims to the newly-created Supreme Court of the Virgin

Islands, which affirmed. In this, the first case in which we have

granted certiorari to review a decision of the Virgin Islands

Supreme Court, we set forth our standard of review and hold

that we shall defer to decisions of the Supreme Court of the

Virgin Islands on matters of local law unless we find them to be

manifestly erroneous. Applying this standard to Pichardo’s

case, we will affirm the decision of the Virgin Islands Supreme

Court. 

I.

Pichardo began work as a server and cashier at Agave

Terrace Restaurant on August 12, 1998. Between November

1998 and March 1999, she received four disciplinary write-ups.

Pichardo was subsequently fired in April 1999. The reasons for

these write-ups included: smoking around the restaurant’s

laundry area and leaving cigarette butts on the ground, failing to

properly clean her station at the end of work, failing to report for

a scheduled shift, and refusing to set tables. Following the third

write-up, Pichardo was suspended for two shifts. Pichardo then

received another disciplinary notice and was suspended for

allegedly threatening to sue her employer. The write-up stated

that she was spreading ill will and “causing more problems with
4

service throughout the restaurant.” (J.A. at 125.) 

During the subsequent period between this suspension

and her termination, Pichardo did not return to work. She did,

however, write four separate memos to Agave, each dated April

7, 1999, responding to the disciplinary write-ups. Each of these

memos proffered explanations for the behavior cited in the

write-ups. Agave, in its written closing statement at the DOL

hearing regarding Pichardo’s termination, claimed that it did not

receive any of these responses until the date of the hearing. The

responses were also not in Pichardo’s personnel file. Agave

contended that they were “conjured up” long after the incidents.

(J.A. at 144.) 

Pichardo was discharged on April 10, 1999 and filed a

complaint with the DOL, pursuant to the Virgin Islands

Wrongful Discharge Act, V.I. Code Ann. tit. 24, §§ 76-79, on

April 12, 1999. The complaint asserts that the reasons Agave

gave to Pichardo for her termination “were ‘hearsay’ that I had

stated I was going to sue the restaurant, which I totally disagree

with this reasons [sic].” (Id. at 101.) At the time of her

complaint, a preliminary injunction order in a separate matter

prohibited the DOL from holding hearings. It was lifted on June

30, 2000, but the Administrative Law Judge (the “ALJ”) did not

hold a hearing until January 14, 2002. 

Both parties submitted exhibits and, though they both had

the opportunity to call witnesses, Pichardo presented only her

own testimony at the hearing. No transcript exists, but

according to the ALJ’s decision, Agave called five witnesses:

four Agave employees and the restaurant’s owner. All these

witnesses, according to the ALJ, testified about Pichardo’s poor

work performance, negative attitude, threats to co-workers, and

the writing of improper order tickets. They also recounted

numerous warnings given to her about her behavior. Pichardo

testified and, according to the ALJ, claimed that Agave’s

witnesses were lying. A ruling was issued nearly two years after

the one-day hearing, on December 16, 2003. Pichardo had
 At the time, the Superior Court was known as the 1

Territorial Court. On September 30, 2004, the Virgin Islands

Legislature passed Bill No. 25-0213 (effective October 29,

2004), changing the name of the Territorial Court of the Virgin

Islands to the Superior Court of the Virgin Islands.

The DOL submitted, in support of its response to the 2

Superior Court’s order, an affidavit from “the person charged

with transcribing the taped record of the proceedings.” (J.A. at

53.) It stated that the tapes could not be transcribed because

“[t]here are simply too many incomplete questions and answers

and incomplete sentences.” (Id.) Without noting the source of

its conclusion, the Superior Court stated that a transcript could

not be generated “because the recording was of poor quality.”

(Id. at 34.) 

5

written the Commissioner of Labor on October 6, 2003

complaining about this delay. 

The ALJ found that Agave had met its burden and had

demonstrated by a preponderance of the evidence that Pichardo

was fired for cause under V.I. Code Ann. tit. 24, § 76(a). The

ALJ found that the evidence satisfied § 76(a)(4), allowing

discharge of an employee “who willfully and intentionally

disobeys reasonable and lawful rules, orders, and instructions of

the employer,” as well as § 76(a)(9), which applies to an

employee “whose conduct is such that it leads to the refusal,

reluctance or inability of other employees to work with him.”

V.I. Code Ann. tit. 24, § 76(a)(4) & (9). The Commissioner

upheld the ALJ’s decision.

Pichardo filed pro se for review before the Superior

Court of the Virgin Islands on February 24, 2004. Pichardo v. 1

Benjamin, Civ. No. 85-2004 (V.I. Super. Ct. Mar. 30, 2007).

She invoked the Superior Court’s jurisdiction pursuant to V.I.

Code Ann. tit. 5, § 1421, which provides for judicial review of

administrative decisions. The Superior Court ordered the DOL

to produce a transcript of its hearing. The DOL instead filed a

Response to Order to Provide Record of Proceedings, which

stated that “the tape made of the proceeding in this matter is not

transcribable and therefore cannot be provided for the Court.”

(J.A. at 51.)2
6

Pichardo, represented by counsel, filed a motion on

September 28, 2004 to remand her case to the DOL for a new

evidentiary hearing. Agave opposed the motion, arguing both

that it would be prejudiced given the passage of time and that

the documentary evidence in the record was sufficient for the

court to review the DOL’s decision. The Superior Court did not

expressly rule on the motion to remand, but it stated in a briefing

order that it was “in receipt of the record of proceeding from the

Department of Labor.” (Id. at 61.) Pichardo filed a counseled

brief with the Superior Court and presented three issues for

review: (1) whether her due process rights were violated by the

DOL’s delay in rendering a decision; (2) whether her due

process rights were violated by the DOL’s failure to maintain

the “tapes of the transcript of the proceedings” and its

production of only the administrative file as the record of the

proceedings; and (3) whether Agave failed to meet its burden

under the Virgin Islands Wrongful Discharge Act, V.I. Code

Ann. tit. 24, § 76, et. seq. 

The Superior Court affirmed the DOL’s decision. First,

it acknowledged that “[the] case has been plagued by

unexplained delays,” but it determined that “a writ of review is

not the proper method to address such complaints.” (J.A. at 37.)

Such delays, the court found, have little to do with whether

Agave had cause to terminate Pichardo. Second, the court

declared that it would resolve the transcript issue by assuming

all objections had been timely raised, “affording Petitioner

protection of claims that she may have lost due to the absence of

said transcript.” (Id.) Third, the court upheld the ALJ’s

determination that Agave did not violate the Wrongful

Discharge Act, because it had grounds to terminate Pichardo for

disobeying her employer’s instructions. While the court noted

that Agave presented witnesses who testified to this effect, it did

not explain how it reviewed this testimony in the absence of a

transcript. Its analysis focused on Pichardo’s contention that the

witnesses, who worked for Agave, were interested witnesses.

The court concluded that it was not error for the ALJ to rely on

the testimony of an interested witness and that the ALJ’s

credibility determination must be accepted unless “contrary to

sound reason.” (Id. at 39.) The court further noted that

Pichardo had conceded that Agave “offered evidence of small
7

infractions.” (Id.) The accumulation of these infractions, the

court found, “was the basis for the termination.” (Id. at 39-40.)

Therefore, it concluded, the ALJ’s decision was “supported by

reasonable evidence.” (Id. at 40.) 

Pichardo appealed to the Virgin Islands Supreme Court.

Pichardo v. Benjamin, Civ. No. 2007-061, 2008 WL 6054386

(V.I. Sup. Ct. Apr. 16, 2008). She challenged the Superior

Court’s refusal to consider her due process claims, but did not

challenge the ruling on the merits. The Supreme Court held that

it could not address Pichardo’s argument that she was denied

due process due to the delays before the DOL. Relying on V.I.

Code Ann. tit. 24, § 70, which provides for judicial review of

DOL decisions, the Supreme Court held that both it and the

Superior Court were limited to considering issues raised before

the Department of Labor. Section 70 provides that:

(a) Any person aggrieved by a final order of the

Commissioner granting or denying in whole or in

part the relief sought may obtain a review of such

order by filing in the Superior Court or the

District Court, within 30 days of its issuance, a

written petition praying that such decision of the

Commissioner be modified or set aside.

(b) No objection that has not been urged before

the Commissioner shall be considered by the

Court unless the failure or neglect to urge such

objection is excused because of extraordinary

circumstances. The findings of the Commissioner

as to the facts, if supported by substantial

evidence, shall be conclusive.

Focusing on § 70(b), the Supreme Court found that the issue of

delay had not been raised as an objection before the DOL, nor

was there evidence Pichardo “took any action to induce the DOL

to issue its decision in the many months following the hearing.”

2008 WL 6054386, at *2. The court further noted that Pichardo

did not allege any “extraordinary circumstance” that prevented

her from raising an objection. 

The Supreme Court also rejected Pichardo’s contention

that her petition should be governed by V.I. Code Ann. tit. 5, §
The Supreme Court did not address the fact that 3

Pichardo’s petition sought a writ of review pursuant to V.I.

Code Ann. tit. 5, § 1421. Moreover, although her petition

invoked 5 V.I.C. § 1421, the Superior Court’s order granting the

writ simply stated that Pichardo’s petition was brought pursuant

to Territorial Court Rule 15 and V.I. Code Ann. tit. 24, § 70(a).

(J.A. at 43, 47-48.) 

In an order dated August 19, 2008, the Supreme Court 4

denied Pichardo’s petition for rehearing. It rejected her claim

that her October 6, 2003 letter to the Commissioner of Labor, in

which she complained about the ALJ’s delay in issuing a

decision, constituted an objection under § 70(b). The court

found that the letter did not “properly urge[] Pichardo’s

8

1422, rather than V.I. Code Ann. tit. 24, § 70. Pichardo, in her

petition before the Superior Court, had sought review pursuant

to V.I. Code Ann. tit. 5, § 1421, which provides that:

Any party to any proceeding before or by any

officer, board, commission, authority, or tribunal

may have the decision or determination thereof

reviewed for errors therein as prescribed in this

chapter and rules of court. Upon the review, the

court may review any intermediate order

involving the merits necessarily affecting the

decision or determination sought to be reviewed.3

Section 1422 outlines the grounds for review under § 1421: 

The writ of review shall be allowed in all cases

where there is no appeal or other plain, speedy,

and adequate remedy, and where the officer,

board, commission, authority, or tribunal in the

exercise of his or its functions appears to have

exercised such functions erroneously, or to have

exceeded his or its jurisdiction, to the injury of

some substantial right of the plaintiff.

The Supreme Court held that § 1422, which provides a general

writ of review, was not applicable because V.I. Code Ann. tit.

24, § 70, a narrower provision, specifically providing for review

from decisions by the DOL, applied.4
objections before the Commissioner of Labor, as required by [§

70(b)].” (J.A. at 12.) It concluded that the letter merely sought

to induce the Commissioner to issue an opinion, rather than to

raise a constitutional claim, and accordingly denied rehearing.

 The statute granting us certiorari jurisdiction provides 5

that:

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: Provided, That for the first

fifteen years following the establishment of the

appellate court authorized by section 1611(a) of

this title, the United States Court of Appeals for

the Third Circuit shall have jurisdiction to review

by writ of certiorari all final decisions of the

highest court of the Virgin Islands from which a

decision could be had. The Judicial Council of the

Third Circuit shall submit 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. The

9

Pichardo petitioned pro se for a writ of certiorari from

this Court and requested the appointment of counsel. Under 48

U.S.C. § 1613, the Third Circuit has temporary certiorari

jurisdiction over final decisions of the Virgin Islands Supreme

Court. By order dated February 12, 2009, we granted 5
United States Court of Appeals for the Third

Circuit shall have jurisdiction to promulgate rules

necessary to carry out the provisions of this

section.

48 U.S.C. § 1613. 

 We have described the Revised Organic Act as “the 6

basic charter of government” for the Virgin Islands. Brow v.

10

Pichardo’s petition on three specific issues: 

(1) the merits of petitioner’s claims that excessive

delays and the absence of a transcript of her

hearing before the Virgin Islands Department of

Labor (“DOL”) deprived her of due process or

otherwise required the Virgin Islands Superior

Court to remand the matter to the DOL;

(2) whether the Virgin Islands Supreme Court

erred in not addressing petitioner’s claims

regarding the absence of a transcript; and

(3) whether petitioner’s claims are of the kind

that, under [V.I. Code Ann. tit. 24, § 70(b)], may

not be considered on a writ of review unless they

have been raised in the DOL in the first instance

(which might depend, inter alia, on whether the

DOL has jurisdiction to adjudicate such claims).

(J.A. at 1.) We also granted Pichardo’s motion for appointment

of counsel. 

II.

This is the first time we have granted certiorari to review

a decision of the newly-created Supreme Court of the Virgin

Islands. We therefore take this occasion to define our standard

of review in such cases. 

Congress amended the Virgin Islands Revised Organic

Act in 1984, establishing “the framework for a dual system of

local and federal judicial review in the Virgin Islands.” Parrott

v. Gov’t of Virgin Islands, 230 F.3d 615, 619 (3d Cir. 2000).6
Farrelly, 994 F.2d 1027, 1035 n.6 (3d Cir. 1993). 

11

This amendment vested “[t]he judicial power of the Virgin

Islands” in a “‘District Court of the Virgin Islands’ established

by Congress, and in such appellate court and lower local courts

as may have been or may hereafter be established by local law.”

48 U.S.C. § 1611(a). In Parrott, we recognized that the 1984

amendments granted the Virgin Islands Legislature the power

“to divest the District Court of original jurisdiction for local

matters by vesting that jurisdiction in territorial courts

established by local law.” Parrott, 230 F.3d at 619 (citing 48

U.S.C. § 1611(b)); see also Edwards v. HOVENSA, LLC, 497

F.3d 355, 358 (3d Cir. 2007). 

The Virgin Islands legislature subsequently enacted a

statute, effective October 1, 1991, granting the Superior Court

of the Virgin Islands (known at the time as the Territorial Court)

original jurisdiction over local civil actions. V.I. Code Ann. tit.

4, § 76(a). This provision, in combination with § 1613 of the

Revised Organic Act, served to “effectively repeal any grant of

concurrent jurisdiction to the District Court over local actions.”

Parrot, 230 F.3d at 620 (citing Brow, 994 F.2d at 1035-36); see

also Edwards, 497 F.3d at 358-59. Under the terms of the

Revised Organic Act of 1984, the District Court retained

jurisdiction over appeals from the local Virgin Islands courts

pending the establishment of a local appellate court. 48 U.S.C.

§ 1613a. These appeals were considered by an Appellate

Division of the District Court. Id. In turn, we possessed

jurisdiction over appeals from final decisions of the Virgin

Islands District Court “on appeal from the courts established by

local law.” Id. § 1613a(c). 

On October 29, 2004, Virgin Islands Governor Turnbull

approved Act No. 6687, which established a Supreme Court of

the Virgin Islands. See Russell v. DeJongh, 491 F.3d 130, 132

(3d Cir. 2007); 2004 V.I. Sess. Laws 179, Act No. 6687 (B. No.

25-213) (codified as amended in scattered sections of V.I. Code

Ann. tit. 4). The Supreme Court of the Virgin Islands was

established “as the highest court of the Virgin Islands” and

granted “the supreme judicial power of the Territory.” V.I.

Code Ann. tit. 4, § 21. However, under the terms of the Revised
12

Organic Act, for the first fifteen years after the establishment of

the Virgin Islands Supreme Court, we “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.”

48 U.S.C. § 1613. Section 1613 also requires our Court to

submit reports to Congress regarding whether the Supreme

Court of the Virgin Islands has “developed sufficient

institutional traditions to justify direct review by the Supreme

Court of the United States from all such final decisions.” Id.

It is in light of this historic and statutory backdrop that

we must consider the nature of our review of the Supreme Court

of the Virgin Islands’ decisions. At the outset, we identify three

possible standards of review that we might apply to a decision

of the Virgin Islands Supreme Court. First, we might define our

role as that of a “super-Supreme Court,” with powers of review

equivalent to that of a state Supreme Court reviewing the

decision of an intermediary state appellate court. Second, our

role might be framed as equivalent to that of the United States

Supreme Court when it reviews decisions of a state Supreme

Court. See, e.g., Oregon v. Guzek, 546 U.S. 517, 521 (2006)

(holding that Supreme Court “possess[es] jurisdiction to review

state-court determinations that rest upon federal law”); Richfield

Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 84 (1946)

(declaring that the California Supreme Court’s construction of

state law is binding upon the United States Supreme Court).

Third, our review might demand substantial deference on

matters of local law. Under this third potential standard, which

the Ninth Circuit embraced in reviewing decisions by the

Supreme Court of Guam, “we may reverse the Supreme Court

only if it commits manifest error or is inescapably wrong.”

Haeuser v. Dep’t of Law, 368 F.3d 1091, 1093 (9th Cir. 2004).

Upon consideration of the purpose of Congress’ grant to

us of certiorari jurisdiction over the Virgin Islands Supreme

Court, as well as the treatment of similar statutes by the

Supreme Court and other circuit courts, we hold that this third

option – substantial deference – is the proper standard for our

review of decisions by the Supreme Court of the Virgin Islands.

It 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 a decision of the Supreme Court of
13

the Virgin Islands that is based upon territorial law only if it is

inescapably wrong. 

The standard we adopt today has previously been urged

upon this Court in relation to our review of decisions by the

Appellate Division of the District Court of the Virgin Islands,

which previously heard appeals from the Territorial Court. In

BA Properties v. Government of the United States Virgin

Islands, 299 F.3d 207 (3d Cir. 2002), we rejected the “manifest

error” standard and the proposition that the Appellate Division

should be treated “as if it were a local appellate or supreme

court.” Id. at 211-12; see also Saludes v. Ramos, 744 F.2d 992,

993-94 (3d Cir. 1984) (rejecting deferential standard of review

for Appellate Division decision). In reaching this conclusion,

we emphasized that the District Court of the Virgin Islands “is

essentially a federal creature, and not an insular appellate court.”

BA Properties, 299 F.3d at 212. 

We also indicated in BA Properties that the Virgin

Islands Supreme Court, once it was established by the Virgin

Islands Legislature, would possess an authoritative voice on

matters of Virgin Islands law. Id. (recognizing that Virgin

Islands Supreme Court “would essentially have the final word

on the interpretation of local Virgin Islands law”). We

reinforced this position in a subsequent case decided after the

establishment of the Virgin Islands Supreme Court. In Edwards,

in which we reviewed a decision of the District Court of the

Virgin Islands that relied on Virgin Islands law, we declared that

“[g]oing forward, now that the Virgin Islands has established an

insular appellate court and will begin developing indigenous

jurisprudence, the District Court, when exercising jurisdiction

over cases requiring the application of Virgin Islands law, will

be required to predict how the Supreme Court of the Virgin

Islands would decide an issue of territorial law.” 497 F.3d at

362 n.3. These prior decisions do not, however, compel the

conclusion that the Virgin Islands Supreme Court, during the

period in which we possess certiorari jurisdiction, is not at all

subject to our review on matters of local law. Instead, we find

that a highly deferential standard of review is proper in light of

Supreme Court precedent and the nature of our own statutory

grant of certiorari jurisdiction. 
 Section 128 of the Judicial Code, as amended in 1925, 7

granted the Ninth Circuit jurisdiction to review decisions of the

Supreme Court of Hawaii. It provided:

The circuit courts of appeal shall have appellate

jurisdiction to review by appeal or writ of error

final decisions . . . . In the Supreme Courts of the

Territory of Hawaii and of Porto Rico, in all civil

cases, civil or criminal, wherein the Constitution

or a statute or treaty of the United States or any

authority exercised thereunder is involved; in all

other civil cases wherein the value in controversy,

exclusive of interest and costs, exceeds $5,000,

and in all habeas corpus proceedings.

68 Cong. Ch. 229, 43 Stat. 936, 936 (Feb. 13, 1925). 

14

In Waialua Agricultural Co. v. Christian, 305 U.S. 91

(1938), the Supreme Court analyzed, in the context of thenterritorial Hawaii, the proper standard of review for a federal

court of appeals when considering a territorial court’s decision

regarding local substantive law. The Supreme Court granted

certiorari and cross-certiorari to review the Ninth Circuit’s

reversal of conclusions of law reached by the Supreme Court of

Hawaii. Id. at 93-94. The statute governing the Ninth Circuit’s

relationship to the Supreme Court of Hawaii at the time was not

identical to the provision governing our relationship to the

Virgin Islands Supreme Court. Nonetheless, we find the 7

principles and policy considerations underpinning the standard

of review articulated by the Supreme Court in Waialua

Agricultural relevant to our analysis.

The Court in Waialua Agricultural declared that “the

arguments of policy in favor of having the state courts declare

the law of the state are applicable to the question of whether or

not territorial courts should declare the law of the territories with

the least possible interference. It is true that under the appeal

statute the lower court had complete power to reverse any

ruling of the territorial court on law or fact but we are of the

opinion that this power should be exercised only in cases of

manifest error.” Id. at 109 (footnote omitted and emphasis
15

added). While the applicable law granted broad powers to the

Ninth Circuit, the Supreme Court found that substantial

deference should be applied to this review. The Court held that

absent a “clear departure from ordinary legal principles, the

preference of a federal court as to the correct rule of general or

local law should not be imposed upon Hawaii.” Id. 

In De Castro v. Board of Commissioners, 322 U.S. 451

(1949), a case involving the First Circuit’s review of a decision

of the Supreme Court of Puerto Rico, the Supreme Court

articulated a similarly deferential standard of review: “to justify

reversal by the federal courts of a decision of an insular supreme

court in a matter of local concern, the error must be clear or

manifest; the interpretation must be inescapably wrong.” Id. at

458 (quotation marks and citation omitted); see also Philippine

Sugar Estates Dev. Co. v. Gov’t of Philippine Islands, 247 U.S.

385, 390 (1918) (“This court is always disposed to accept the

construction which the highest court of a territory or possession

has placed upon a local statute. But that disposition may not be

yielded to, where the lower court has clearly erred.”) (citation

omitted). In De Castro, the Court revealed the policy concerns

that shaped this standard of review, including the desire to

“leave appropriate scope for the development by those courts of

a system of law which differing from our own in its origins and

principles, would nevertheless be suitable to local customs and

needs.” 322 U.S. at 454-55. 

The differences between 12 U.S.C. § 1613, which grants

us certiorari jurisdiction over the Virgin Islands Supreme Court,

and 28 U.S.C. § 1257, which grants the United States Supreme

Court certiorari jurisdiction over the highest State courts, lend

further support for this distinct standard of review. Section

1257(a) provides that:

Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court by

writ of certiorari where the validity of a treaty or

statute of the United States is drawn in question or

where the validity of a statute of any State is

drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of
 Local Appellate Rule 112.1 outlines the “character of 8

reasons” that guide our decision of whether or not to grant a writ

of certiorari. These considerations include that “[t]he Supreme

Court of the Virgin Islands has decided an important question of

16

the United States, or where any title, right,

privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or

statutes of, or any commission held or authority

exercised under, the United States.

Under § 1257, the Supreme Court may review a decision of a

highest state court when the United States Constitution or a

federal law is implicated. The Court declines to review state

court decisions that rely upon an “adequate and independent”

state-law ground. Michigan v. Long, 463 U.S. 1032, 1041

(1983). Our statutory grant of authority places no similar

limitation upon our jurisdiction by writ of certiorari. It states

that, for the first fifteen years of the Supreme Court of the

Virgin Island’s existence, this Court “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.”

48 U.S.C. § 1613 (emphasis added). Our review is not limited

to cases that implicate the United States Constitution or federal

law. See EIE Guam Corp. v. Supreme Court of Guam, 191 F.3d

1123, 1125 (9th Cir. 1999) (declaring that Ninth Circuit, in

reviewing decisions by the Supreme Court of Guam under a

statute virtually identical to 48 U.S.C. § 1613, “has authority to

review not only federal issues, but also all issues of local law”).

Accordingly, while the Virgin Islands Supreme Court

“essentially [has] the final word on the interpretation of local

Virgin Islands law,” BA Properties, Inc., 299 F.3d at 212, it

remains subject to the deferential standard of review we

establish today. Such a standard, which also provides that we

will not be deprived of jurisdiction in cases in which the

decision relies upon “adequate and independent” territorial-law

grounds, best ensures that this Court 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.” 48 U.S.C. § 1613. 

8
federal or territorial law that has not been, but should be,

decided by this court.” Local Appellate Rule 112.1(a)(3). This

rule accords with our holding that, although we pay substantial

deference to the Virgin Islands Supreme Court’s decision on

matters of territorial law, we retain authority to review those

decision for manifest error.

 The current statute provides that: 9

The relations between the courts established by

the Constitution or laws of the United States and

the local courts of Guam 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. § 1424-2. A 2004 amendment removed the language

providing for certiorari review by the Ninth Circuit. The

omitted portion had read:

Provided, That for the first fifteen years following

the establishment of the appellate court authorized

by section 1424-1(a) of this title, 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

17

The standard of review we embrace today also accords

with that applied by the Ninth Circuit Court of Appeals during

the recent period in which it exercised certiorari review over the

Supreme Court of Guam. The statute providing for this review,

for the first fifteen years following establishment of the

Supreme Court of Guam, was nearly identical to the statute

granting us jurisdiction to review decisions by the Supreme

Court of the Virgin Islands. See 48 U.S.C. § 1424- 9
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 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. The United States Court of

Appeals for the Ninth Circuit shall have

jurisdiction to promulgate rules necessary to carry

out the provisions of this subsection.

Pub. L. No. 108-378, § 2. 

18

2 (2000). In exercising its discretionary review under § 1424-2,

the Ninth Circuit sought to “balance the temporary power of

oversight that Congress has given us with Congress’s clear

intent to allow Guam to develop its own, independent

institutions.” Gutierrez v. Pangelinan, 276 F.3d 539, 546 (9th

Cir. 2002) (quotation marks and citation omitted). The Ninth

Circuit therefore reviewed decisions of the Guam Supreme

Court that involved local law – whether interpreting statutes

enacted by the Guam Legislature or developing Guam’s

common law – by applying a “deferential standard of review.”

Id. Under this standard the Ninth Circuit would affirm a

decision interpreting a Guam statute “‘where . . . the Guam

Supreme Court appears to have construed [the] statute

reasonably and fairly.’” Id. (quoting EIE Guam Corp., 191 F.3d

at 1127); see also Guam v. Guerrero, 290 F.3d 1210, 1213 (9th

Cir. 2002) (“We recognize that on matters of local concern,

appellate courts apply a highly deferential standard of review [to

a decision of a territorial supreme court].”) (citing, inter alia, De

Castro, 322 U.S. at 454). 

In Haeuser v. Department of Law, the Ninth Circuit

discussed the change in its standard of review for decisions by

the Guam Supreme Court from its prior standard for review of

the Appellate Division of the District Court of Guam, which had

heard appeals from the territorial trial court. 368 F.3d at 1097-
19

98. It concluded that its prior rationale for not deferring to the

Appellate Division no longer applied when reviewing the Guam

Supreme Court, citing its own prior decisions in Gutierrez and

EIE Guam Corp. Id. at 1098. Examining the terms of the

statute establishing its certiorari review over the Guam Supreme

Court, the court reasoned that “[a]lthough Congress did not

explicitly state that greater deference must be paid to the Guam

Supreme Court, the text of § 1424-2 assumes that the Guam

Supreme Court will have the freedom to develop its own

‘traditions,’ which in turn, undoubtedly entails the creation of

legal precedent as well.” Id. at 1099. Congress expressed the

same intention in the statute governing our review of the Virgin

Islands Supreme Court, which requires us to report to Congress

regarding whether the new court “has developed sufficient

institutional traditions to justify direct review by the Supreme

Court of the United States.” 48 U.S.C. § 1613. The

development of such traditions requires some degree of

independence and demands that our oversight be marked by

considerable deference. See Haeuser, 368 F.3d at 1099

(“Unlike our review of the Appellate Division, our review of the

Guam Supreme Court requires us to defer to an insular judicial

system’s expertise in local matters as well as to honor Congress’

assumption that the Supreme Court would have the freedom to

develop sufficient legal traditions and precedent.”). As the

Ninth Circuit concluded, and we hold today, the degree of

deference we must afford to a territorial supreme court allows

for reversal on matters of local law only when “clear or manifest

error is shown.” Id. 

III.

We now apply this standard of review to the three issues

upon which we granted Pichardo’s petition for writ of review.

We begin with the third issue we identified in the grant of

review: whether, under V.I. Code Ann. tit. 24, § 70(b),

Pichardo’s due process claims may only be considered by the

Virgin Islands court, on a writ of review, if they have first been

raised before the Department of Labor. 

The Supreme Court of the Virgin Islands held that the

Superior Court “correctly declined to address Pichardo’s due

process arguments on a writ of review.” Pichardo, 2008 WL
 Pichardo filed a petition for rehearing, which the Virgin 10

Islands Supreme Court denied. (J.A. at 10-13 (Order denying

Petition for Rehearing (Aug. 19, 2008).) Pichardo contended in

her petition that an October 6, 2003 letter she sent to the

Commissioner of Labor, expressing her discontent with the

Administrative Law Judge’s delay in issuing a decision in her

case, represented an objection sufficient to allow for review of

this issue. In denying rehearing, the Supreme Court noted that

the letter was not included in the Joint Appendix filed with

Pichardo’s appellate brief nor was it referenced in her brief.

(J.A. at 11-12.) Even absent these deficiencies, the Supreme

Court declared that it was not persuaded that the letter had

properly raised Pichardo’s objections before the Commissioner

of Labor. It found the letter merely expressed that she was

denied her rights “under the VI Rules and Regulations as

promulgated on March 18, 1981,” but did not assert that any

constitutional rights had been violated. (Id. at 12.) We have

independently reviewed the letter and agree that it raises no

objections that could be interpreted as an allegation of a due

process violation under the Constitution. (See Id. at 131.) We

find no basis for concluding that the Supreme Court manifestly

20

6054386, at *1. The Superior Court had affirmed the DOL’s

determination that Pichardo was not wrongfully terminated. It

also held that it could not rule on Pichardo’s due process claim,

as such a claim was beyond the scope of the writ of review it

had granted, which focused on whether Pichardo was terminated

for cause. (J.A. at 37 [Pichardo v. Benjamin, Civ. No. 85-2004

(V.I. Sup. Ct. Mar. 30, 2007)]). The Virgin Islands Supreme

Court exercised plenary review over the Superior Court’s ruling

on Pichardo’s due process claim. 2008 WL 6054386, at *2. 

After reviewing the record before it, the Supreme Court

concluded that Pichardo failed to raise any objection to the

DOL’s delay in conducting a hearing before the Commissioner

of Labor, nor did she take any action to induce the DOL to issue

a decision after the hearing occurred. Id. Since V.I. Code Ann.

tit. 24, § 70(b) only permits the Superior Court to consider

issues upon which an objection has been “urged before the

Commissioner,” the Supreme Court concluded that the Superior

Court lacked jurisdiction to hear Pichardo’s due process claim.10
erred in its determination that the letter did not constitute a

proper objection under V.I. Code Ann. tit. 24, § 70. 

 Since, pursuant to 48 U.S.C. § 1613, we are entrusted 11

with the task of overseeing the development of the Virgin

Islands Supreme Court’s “institutional traditions,” we take this

opportunity to comment on a seeming discrepancy in Virgin

Islands jurisprudence, which the Supreme Court did not discuss

in its decision. Virgin Islands courts have not treated the issue

of whether § 70 applies to review of DOL decisions

consistently. In Bachelor v. Pitt-Des-Moines, Inc., Civ. No.

262/1998, 2003 WL 553266 (Terr. V.I. Feb. 3, 2003), the

Territorial Court of the Virgin Islands reviewed the DOL’s

ruling in a Wrongful Discharge Act case pursuant to a writ of

review under V.I. Code Ann. tit. 5, §§ 1421-1423, without any

reference to § 70. However, a separate Territorial Court

decision, issued prior to Bachelor, embraced the position that

21

Accordingly, it found that it need not even reach the issue of

whether a due process claim could be raised pursuant to a writ

under V.I. Code Ann. tit. 24, § 70.

The Supreme Court also addressed a separate, but related,

issue raised by Pichardo: whether her petition for review of the

DOL’s decision should be governed by V.I. Code Ann. tit. 5, §

1422, rather than V.I. Code Ann. tit. 24, § 70. Section 1422

does not limit review to issues for which an objection was raised

before the entity whose decision is under review. The Supreme

Court found that § 1422 – which provides for review “in all

cases where there is no appeal or other plain, speedy, and

adequate remedy” – is a general review statute and “is only

applicable in the absence of another remedy.” 2008 WL

6054386, at *2. Since § 70 expressly provides for review of

decisions by the DOL, the Supreme Court found § 1422

inapplicable. Given the deferential standard that we have

declared governs our review of the Supreme Court’s decision in

this, a matter of Virgin Islands law, we find no manifest error in

the Supreme Court’s two decisions, that the writ of review under

§ 70 is limited to consideration of issues for which an objection

was raised and that § 1422 cannot be invoked to seek review of

decisions by the DOL, given the existence of § 70. 

11
the Supreme Court of the Virgin Islands has now declared

proper: that judicial review from a decision of the DOL is only

available pursuant to § 70. In Peters v. Channel 8 (WSVI), Civ.

No. 1111/1992, 1994 WL 326548 (Terr. V.I. May 19, 1994), the

court considered Peters’s argument that it erroneously relied

upon § 70. Invoking the principle that a more specific statute

governs, rather than a more general one dealing with the same

subject, the court declared that § 70 and not § 1421 governed its

jurisdiction. 

 These alternative means of raising her due process 12

claims also compel us to reject Pichardo’s contention that the

22

Moreover, although Pichardo raised due process claims

under the United States Constitution, this does not alter our

conclusion. Although the Virgin Island Supreme Court’s

decision denied Pichardo the opportunity to have her due

process claim considered in this matter, a writ of review

pursuant to V.I. Code Ann. tit. 24, § 70 was not the only

available avenue for Pichardo to vindicate any due process right

related to the DOL’s delay. Pichardo could have brought an

action for an injunction or a writ of mandamus to compel the

agency to hold a hearing or issue a decision. She could have

filed an action pursuant to 42 U.S.C. § 1983, challenging the

alleged denial of her due process rights. Pichardo also could

have brought a claim in the Superior Court, pursuant to V.I.

Code Ann. tit. 24, § 79, concurrently with her action before the

DOL. Section 79 provides that “any wrongfully discharged

employee may bring an action for compensatory and punitive

damages in any court of competent jurisdiction against any

employer who has violated the provisions of [the Virgin Islands

Wrongful Discharge Act].” Accordingly, we conclude that the

constitutional nature of Pichardo’s claim does not give us cause

to alter our analysis where, as here, the Virgin Island Supreme

Court’s determination did not deny her the “opportunity to

protect” her due process rights and other judicial remedies

remained available. See Brinkerhoff-Faris Trust & Sav. Co. v.

Hill, 281 U.S. 673, 682 (1930) (“[W]hile it is for the state courts

to determine the adjective as well as the substantive law of the

state, they must, in so doing, accord the parties due process of

law.”). 

12
writ pursuant to V.I. Code Ann. tit. 5, § 1421-23 is applicable

here given that § 1422 provides that “[t]he writ of review shall

be allowed in all cases where there is no appeal or other plain,

speedy, and adequate remedy.” V.I. Code Ann. tit. 5, § 1422.

Although we defer to the Virgin Islands Supreme Court’s

holding that V.I. Code Ann. tit. 5, § 1421 does not apply to DOL

proceedings, to the extent that Pichardo claims that V.I. Code

Ann. tit. 5, § 1421 must be applied in order to vindicate her

constitutional claims, we find this contention unavailing. 

23

The first and second issues upon which we granted the

writ of certiorari can easily be disposed of. As for the first

issue, given our discussion above, we need not reach the merits

of Petitioner’s claim that she was denied due process by virtue

of the delays before the DOL. As for the second issue, Pichardo

failed to raise a claim regarding the lack of a transcript in her

brief before the Supreme Court, a point she concedes in her brief

before our Court. (Appellant’s Br. at 37.) Accordingly, we find

no basis for concluding that the Supreme Court committed any

error in failing to address her claims related to the Superior

Court’s review of the DOL’s determination in the absence of a

transcript.

Although this issue was waived and we therefore will not

speak to the merits of Pichardo’s due process claim on the

transcript issue, in our role of overseeing the development of the

Virgin Islands’ “institutional traditions” we will take this

opportunity to briefly emphasize the importance of a transcript

in ensuring proper review of an administrative hearing. We

have recognized, in other contexts, the importance of having an

adequate record available in order to provide meaningful

judicial review of an agency action. See Marincas v. Lewis, 92

F.3d 195, 202 (3d Cir. 1996) (review of asylum application); see

also Kheireddine v. Gonzales, 427 F.3d 80, 84 (1st Cir. 2005)

(describing how, in immigration proceeding, “due process

demands a reasonably accurate, reasonably complete transcript,

or an adequate substitute, to allow for meaningful and adequate

appellate review”) (quotation marks and citation omitted). The

Supreme Court, in McNary v. Haitian Refugee Center, Inc., 498

U.S. 479 (1991), noted that “the lack of recordings or

transcripts” of an immigration proceeding left the INS’
24

administrative appeals unit with “no complete or meaningful

basis upon which to review application determinations.” Id. at

496. 

We find the Superior Court’s opinion problematic

because, in reviewing the record for substantial evidence to

support the ALJ’s decision, it relied in part on the statements of

witnesses at the hearing, which it could not review absent the

transcript. It notes that the ALJ found Agave had grounds to

terminate Pichardo, noting “[r]espondent put forth six witnesses

whose testimony covered topics that included that Petitioner was

late 3 or 4 times a week, did not properly fill out tickets which

were given to the cook to prepare the food, failed to follow the

standards, and did not listen to manager’s orders.” (J.A. at 38.)

There is no citation to the source of this summary, but in the

absence of a transcript it can be assumed that it came from the

ALJ’s opinion. Throughout the Superior Court’s opinion, the

court merely states the ALJ’s findings and conclusions without

comparing these to an independent assessment of the record.

The only additional items in the record that the Superior Court

can be assumed to have reviewed, and which were also

presented to this Court, are the various employee write-ups from

Agave regarding Pichardo, Pichardo’s responses, a decision

relating to her Unemployment Insurance claim, statements

regarding her Unemployment Insurance payments, Agave’s

Cashier Rules, the restaurant’s Standards of Conduct and

Orientation Checklist, and a credit card receipt on which no tip

was left. Many of these items were authenticated and admitted

through the testimony of witnesses at the hearing, as noted in the

ALJ’s opinion. The ALJ’s decision substantially relied upon the

statements of these witnesses. (See J.A. at 94-97.) The decision

noted that “[c]omplainant brought fourth [sic] no witnesses

except herself and did not prove her testimony that all of

Respondent’s witnesses were lying.” (Id. at 96.) Accordingly,

the ALJ found “sufficient evidence in the sworn testimony of

the witnesses to support Respondent’s decision not to continue

Complainant’s employment for disobeying reasonable Orders,

not performing certain tasks and inability to work with other

employees.” (Id. at 97.) Absent the ability to review that

testimony directly, by reading the transcript, the Superior Court

lacked a sufficient record to properly review the ALJ’s decision.
25

We emphasize these deficiencies in order to raise the attention

of the Virgin Islands judiciary to the importance of a transcript

to facilitate a proper review of an administrative agency’s

decision. 

IV.

For the foregoing reasons, we will affirm the Supreme

Court of the Virgin Islands’ decision.