PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1247

_____________

UNITED INDUSTRIAL, SERVICE, TRANSPORTATION,

PROFESSIONAL AND GOVERNMENT WORKERS

OF NORTH AMERICA SEAFARERS INTERNATIONAL 

UNION, ON BEHALF OF ERNEST BASON,

 

Petitioner

v.

GOVERNMENT OF THE VIRGIN ISLANDS 

_______________

On Writ of Certiorari to the Supreme Court

of the Virgin Islands

(V.I. S. Ct. Civ. No.: 2011-0115)

_______________

Argued December 10, 2013

BEFORE: FISHER, COWEN AND NYGAARD, Circuit 

Judges

(Filed: March 19, 2014)
2

Namosha Boykin, Esq. (Argued)

Amos W. Carty, Jr., Esq.

Pedro K. Williams, Esq.

5212 Wimmelskafts Gade

St. Thomas, VI 00802

Counsel for Petitioner

Joss N. Springette, Esq. (Argued)

Office of Collective Bargaining

3438 Kronprindsens Gade

Second Floor

St. Thomas, VI 00802

Counsel for Respondent

_______________

OPINION

_______________

COWEN, Circuit Judge.

This matter comes before us on a petition for a writ of 

certiorari filed by the United Industrial, Service, 

Transportation, Professional and Government Workers of 

North America Seafarers Union (“Union”) on behalf of 

Ernest Bason, Esq., asking us to review a decision by the 

Virgin Islands Supreme Court. On December 28, 2012, the 

President signed H.R. 6116, “a bill that would eliminate our 

certiorari jurisdiction over final decisions of the Virgin 

Islands Supreme Court and replace it with direct review by 
3

the Supreme Court of the United States.” Kendall v. Daily

News Publ’g Co., 716 F.3d 82, 86 (3d Cir. 2013) (citation 

omitted) (“Kendall I”). We conclude that we retain certiorari 

jurisdiction over proceedings that were filed in the Virgin 

Islands courts before the date of enactment of H.R. 6116. 

Although we thereby still possess certiorari jurisdiction with 

respect to the proceedings filed by the Union and the 

Government of the Virgin Islands in the Virgin Islands 

Superior Court, we nevertheless must dismiss the Union’s 

certiorari petition as moot. Accordingly, we cannot—and do 

not—reach the question of “whether title 24, section 374(a) of 

the Virgin Islands Code is harmonious with title 3, section 

113(a) of the Virgin Islands Code.”

I.

Ernest F. Bason, Esq., was employed as an Assistant 

Attorney General with the Virgin Islands Department of 

Justice. Most Assistant Attorneys General, including Bason, 

were subject to a collective bargaining agreement, and the 

Union served as their exclusive bargaining representative. In 

a July 1, 2010 letter, the Virgin Islands Attorney General 

informed Bason that he intended to impose a suspension and 

to terminate his employment. The Union filed a grievance on 

Bason’s behalf challenging this action. In a letter dated July 

23, 2010, the Governor of the Virgin Islands accepted the 

Attorney General’s recommendation and approved Bason’s 

immediate termination. Withdrawing the previous grievance, 

the Union submitted a second grievance on behalf of Bason 

challenging the Governor’s decision. The second grievance 

went to arbitration. On January 2, 2011, the Arbitrator 
4

entered an award determining that the underlying grievance 

was arbitrable and properly before him for resolution. He 

issued his final award and opinion on April 29, 2011, 

specifically finding that the Governor lacked just cause to 

remove Bason. In addition, the Arbitrator awarded the 

following remedy:

The Arbitrator awards the Grievant immediate

reinstatement to his previous employment as an 

Assistant Attorney General and the immediate

restoration of all emoluments associated with 

his employment as an Assistant Attorney 

General, including without limitation, all related 

benefits and seniority effective July 1, 2010 and 

back pay for the period between the termination 

of the Suspension imposed by the Attorney 

General in his June 7, 2010 letter to the 

Grievant (J-#4) and the Employer’s actual 

reinstatement of the Grievant to his employment 

as an Assistant Attorney General pursuant to 

this Award.

(Id.)

On May 9, 2011, the Government of the Virgin Islands 

filed a complaint in the Virgin Islands Superior Court (No. 

ST-11-CV-308). The Government asked the Virgin Islands 

Superior Court to vacate the arbitration award and to enter a 

declaratory judgment providing that the Virgin Islands Justice 

Department had no obligation to reinstate Bason. Acting on 

Bason’s behalf, the Union filed its own complaint on June 7, 
5

2011 (and the Government, in turn, filed a counterclaim) (No. 

ST-11-CV-364). The Union asked the Virgin Islands 

Superior Court to confirm the arbitration award. The Virgin 

Islands Superior Court consolidated the two cases. The 

parties filed summary judgment motions (and the Union also 

filed motions to dismiss and to confirm the arbitration award).

On December 13, 2011, the Virgin Islands Superior 

Court granted in part and denied in part the motions filed by 

the Union and the Government. In its judgment, the Virgin 

Islands Superior Court vacated the April 29, 2011 arbitration 

award “but only to the extent that it grants relief prior to July 

23, 2010” and ordered “that judgment is entered in Case No. 

ST-11-CV-308 in favor of the Government on Count IV of its 

Verified Complaint to this extent only.” (A34.) It likewise 

entered judgment in the Government’s favor as to Count IV 

of its counterclaim “to this extent only.” (Id.) The Virgin 

Islands Superior Court confirmed the arbitration award “in all 

other respects” and thereby ordered judgment to be entered to 

this extent “in favor of the Union in Case No. ST-11-CV-364 

on its Action to Confirm an Arbitration Award.” (Id.) It was 

ordered, adjudged, and decreed that:

. . . Ernest F. Bason, Esquire is 

IMMEDIATELY REINSTATED as an 

assistant attorney general in the Virgin Islands 

Department of Justice, Office of the Attorney 

General, with the immediate restoration of all

employment benefits, seniority, and other 

emoluments of employment effective July 23, 
6

2010, and back pay from July 23, 2010 to the 

date of his actual reinstatement . . .

(Id.)

In its accompanying opinion, the Virgin Islands 

Superior Court considered the Government’s two theories for 

relief: (1) that the Arbitrator exceeded his authority when he 

ruled that the Union’s grievance was timely filed; and (2) that 

“the arbitrator’s decision to reinstate Attorney Bason violates 

the public policy that assistant attorneys general can be fired 

by the Governor without cause.” Gov’t of the V.I. v. UIWSIU, Nos. ST-11-CV-308, ST-11-CV-364, 2011 WL 

6936479, at *3 (V.I. Super. Ct. Dec. 12, 2011). According to 

the Virgin Islands Superior Court, the Arbitrator exceeded his 

authority by granting any relief based on the July 1, 2010 

letter (or a June 7, 2010 letter imposing a suspension) because 

the Union withdrew its grievance as to the July 1, 2010 action 

(and never filed a grievance with respect to the June 7, 2010 

suspension). “Therefore, the award must be vacated to the 

extent that it awards any relief to Attorney Bason prior to July 

23, 2010.” Id. at *5. With respect to the government’s 

second theory, the Virgin Islands Superior Court concluded 

that “[t]he arbitrator’s decision to reinstate Bason is not 

contrary to Virgin Islands public policy.” Id. at *7 (emphasis 

omitted). “Therefore, the Court will confirm the immediate 

reinstatement of Ernest Bason, Esquire as an assistant 

attorney general with the Virgin Islands Department of 

Justice, Office of the Attorney General, with all benefits, 

seniority, and back pay retroactive to July 23, 2010.” Id. at 

*9. 
7

On December 16, 2011, the Government notified the 

Virgin Islands Superior Court of Bason’s reinstatement, i.e., 

he was directed to report to work on December 19, 2011. It 

also filed a notice of appeal on December 20, 2011, appealing 

from the opinion and judgment to the Virgin Islands Supreme 

Court. On March 15, 2012, the Virgin Islands Superior Court 

denied the Government’s motion for a stay of the portion of 

the judgment ordering the Government to pay back pay as 

well as the Union’s motion for contempt and sanctions on 

account of the Government’s alleged failure to pay the 

requisite back pay.

The Union also moved to dismiss the Government’s 

appeal. According to the Union, the Virgin Islands Supreme 

Court lacked appellate jurisdiction because neither the Virgin 

Islands Superior Court nor the Arbitrator ever established the 

amount of back pay owed to Bason and because the absence 

of a clear monetary judgment “renders the December 13, 

2011 Opinion and Judgment non-final for purposes of section 

32 of title 4 [of the Virgin Islands Code].” Gov’t of the 

Virgin Islands v. UIW-SIU, S. Ct. Civ. No. 2011-0115, 2012 

WL 5901921, at *3 (V.I. Nov. 26, 2012). “As more fully 

explained in the motion to dismiss, the failure to calculate the 

specific amount of back pay owed to Bason became relevant 

since it caused the Superior Court, in a March 15, 2012 

Order, to deny the UIW-SIU’s motion to hold the 

Government in civil contempt.” Id. at *3 n.2. The parties 

were directed to submit supplemental briefing on this 

jurisdictional issue. On September 10, 2012, the Virgin 

Islands Supreme Court denied as moot the Government’s 

motion to stay the back pay portion of the judgment, noting 
8

that no monetary judgment had been entered and that the 

Government had never requested a stay of the portion of the 

judgment ordering Bason’s reinstatement.

After hearing oral argument, the Virgin Islands 

Supreme Court disposed of the Government’s appeal in an 

order and opinion entered on November 26, 2012. In short, it 

reversed “the portion of the decision which mandated Bason’s 

reinstatement.” Id. at *1.

Accordingly, the Virgin Islands Supreme Court stated 

in its order that “the portion of the Superior Court’s 

December 13, 2011 Opinion and Judgment which authorizes 

Ernest Bason’s reinstatement as an Assistant Attorney 

General is REVERSED” and that “the instant appeal is 

DISMISSED with respect to all issues.” (A21-A22.) 

Furthermore, the matter was ordered remanded, and “the 

Superior Court is directed to issue a final judgment consistent 

with this Opinion.” (A22.)

In the accompanying opinion, the Virgin Islands 

Supreme Court began with the threshold question of appellate 

jurisdiction. Title 4, section 32(a) of the Virgin Islands Code 

embodies “the final judgment rule,” which generally requires 

a party “‘to raise all claims of error in a single appeal 

following final judgment on the merits.’” Id. at *3 (quoting 

Bryant v. People, 53 V.I. 395, 400 (V.I. 2010)). Both parties 

recognized that the December 13, 2011 opinion and judgment 

did not “technically” constitute a final order because neither 

the Virgin Islands Superior Court nor the Arbitrator 

calculated the amount of back pay the Government must 
9

remit to Bason. Id. The Government proceeded to invoke the 

practical finality rule permitting an appellate court to review 

an order that resolves all non-ministerial issues, but the Union 

claimed that the back pay calculation “is not a purely 

mechanical task” due to the parties’ disagreement as to the 

amount. Id. As an alternative basis for appellate jurisdiction, 

the Government claimed that the opinion and judgment 

mandating Bason’s immediate reinstatement constituted an 

appealable injunction under title 4, section 33(b)(1) of the 

Virgin Islands Code.

According to the Virgin Islands Supreme Court, “[t]he 

UIW-SIU is correct that the parties’ dispute as to how the 

Superior Court should calculate any monetary damages 

ultimately awarded to Bason precludes us from exercising 

jurisdiction under the practical finality rule.” Id. (citing Hard 

Rock Cafe v. Lee, 54 V.I. 622, 627 n.6 (V.I. 2011)). 

However, it also agreed with the Government’s alternative 

theory that an order mandating immediate reinstatement 

constitutes an appealable injunction. The Union requested 

Bason’s reinstatement, and the Virgin Islands Superior Court 

could have used its contempt powers if the Government had 

refused to reinstate him within the requisite time period. 

“Accordingly, we possess jurisdiction over this appeal, but 

only with respect to the Superior Court’s directive that the 

Government reinstate Bason.” Id.

Turning to the merits, the Virgin Islands Supreme 

Court determined that the portion of the Virgin Islands 

Superior Court’s opinion and judgment ordering the 

reinstatement of Bason must be reversed. “The UIW-SIU 
10

concedes that, under Section 11 of the Revised Organic Act 

of 1954, the Governor ‘may remove[ ] all officers and 

employees of the executive branch of the government of the 

Virgin Islands, except as otherwise provided . . . under the 

laws of the Virgin Islands, 48 U.S.C. § 1591, and that the 

Virgin Islands Code authorizes the Governor to remove an 

Assistant Attorney General. See V.I.C. § 113 (‘The Assistant 

Attorneys General shall be appointed by the Governor, and 

shall hold office during the continuance in office of the 

Governor . . . unless sooner removed by the Governor.’).” Id.

at *4. “Assuming without deciding that Assistant Attorneys 

General may unionize pursuant to chapter 14 of title 24 (24 

V.I.C. § 361 et seq.)—as the Superior Court found in its 

December 13, 2011 Opinion—their right to do so is not 

unlimited.” Id. at *5 (footnotes omitted). Title 24, section 

374 “expressly provides that ‘[r]ates of pay, hours, salaries, 

employee benefits, terms and conditions of employment and 

all matters relating thereto may be specifically negotiated in a 

collective bargaining proceeding between the public 

employer and the exclusive representative unless otherwise 

specifically restricted by law.’” Id. Although the Union 

attempted to harmonize section 113 and the collective 

bargaining agreement by arguing that the agreement simply 

prescribes the manner and conditions by which terminations 

may take place, “this Court disagrees that any harmonization 

is possible with respect to the reinstatement provisions.” Id.; 

see also, e.g., id. (“Given that section 113 actually mandates

automatic discharges of Assistant Attorneys General without 

cause at the conclusion of a Governor’s term, it is not clear to 

this Court how the provisions of the collective bargaining 

agreement which permit reinstatement by an arbitrator of an 
11

Assistant Attorney General discharged without just cause can 

in any way be reconciled with the statutory enactment.”)

In the end, the Virgin Islands Supreme Court 

concluded that:

Since the portion of the December 13, 

2011 Opinion and Judgment mandating Bason’s 

reinstatement constituted an appealable 

injunction, this Court possesses jurisdiction 

over that portion of the underlying order 

pursuant to section 33(b)(1) of title 4. As to the 

merits, to the extent Assistant Attorneys 

General may unionize pursuant to title 24, 

chapter 14, we hold that section 113 of title 3 

precluded the arbitrator and the Superior Court 

from mandating that the Government reinstate 

Bason as an Assistant Attorney General. 

Accordingly, we reverse the portion of the 

December 13, 2011 Opinion and Judgment that 

authorizes Bason’s reinstatement as an 

Assistant Attorney General, and direct the 

Superior Court, on remand, to issue a final 

judgment which is consistent with this Opinion.

Id.

On November 30, 2012, the Union filed a motion with 

the Virgin Islands Supreme Court to stay enforcement of the 

judgment pending the filing of an application for a writ of 

certiorari in this Court. By December 13, 2012, Congress 
12

passed H.R. 6116, which in short “would eliminate our 

certiorari jurisdiction over final decisions of the Virgin 

Islands Supreme Court and replace it with direct review by 

the Supreme Court of the United States.” Kendall I, 716 F.3d 

at 86 (citation omitted). The President of the United States 

signed H.R. 6116 into law on December 28, 2012. Section 3 

of this legislation expressly provides that “[t]he amendments 

made by this Act apply to cases commenced on or after the 

date of the enactment of this Act.” On December 21, 2012, 

the Union filed a motion asking the Virgin Islands Supreme 

Court to render an advisory opinion on the following

question: “Whether H.R. 6116 applies to all cases 

commenced at the trial level on or after its enactment or only 

to appeals from decisions or orders of this court commenced 

on or after the date of enactment.” (12/21/12 Motion at 1 

(emphasis omitted).) The Union also filed a motion 

requesting certified docket entries. On January 15, 2013, the 

Virgin Islands Supreme Court issued its mandate and denied 

all three motions. It noted that the Government’s appeal 

constituted an interlocutory appeal from the issuance of an 

injunction and that it never enjoined the Virgin Islands 

Superior Court from conducting any proceedings during the 

pendency of the appeal. Furthermore, mere monetary loss 

resulting from loss of employment did not constitute good 

cause for a stay because “Appellee would be entitled to 

receive back pay in the event Appellee’s certiorari petition is 

granted and this Court’s November 26, 2012 Opinion 

ultimately reversed.” (1/15/13 Order at 2 (citation omitted).)

On remand to the Virgin Islands Superior Court, the 

Union filed a motion to stay, while the government moved for 
13

issuance of a final judgment. The Virgin Islands Superior 

Court heard oral argument on these motions on May 30, 

2013. To date, the parties’ respective motions are still 

pending.

On January 25, 2013, the Union filed a petition for a 

writ of certiorari with this Court. On March 8, 2013, the 

Clerk issued an order noting that this Court had just filed an 

opinion in Kendall v. Daily News Publishing Co., “addressing 

the issue of jurisdiction over petitions for certiorari after the 

passage of HR 6116.” (3/18/13 Order at 1.) The parties were 

given the opportunity to file jurisdictional submissions, which 

they both did.

This Court filed the following order on April 24, 2013:

The foregoing petition for a writ of certiorari 

will not be dismissed for lack of jurisdiction on 

the basis of H.R. 6116, Pub. L. 112-226, at this 

time. The petition is granted as to the first 

question presented – i.e., whether title 24, 

section 374(a) of the Virgin Islands Code is 

harmonious with title 3, section 113(a) of the 

Virgin Islands Code. In addition to such 

arguments as the parties wish to raise on that 

issue, the parties are directed to address whether 

the Virgin Islands Supreme Court’s decision is 

a “final decision” within the meaning of former 

48 U.S.C. § 1613 (1994), in light of that court’s 

remand to the Virgin Islands Superior Court. 

See generally Defoe v. Philip, 702 F.3d 735, 
14

740-41 (3d Cir. 2012). Our decision not to 

dismiss this petition at this time does not

represent a ruling that this Court retains 

jurisdiction over this petition under H.R. 6116, 

Pub. L. 112-226. That issue will be decided if 

necessary by the panel of this Court that 

considers this appeal on the merits.

(4/24/13 Order at 2.)

After briefing was concluded, the Union filed a 

suggestion of death pursuant to Federal Rule of Appellate 

Procedure 43(a)(1). It notified this Court “that on or about 

April 4, 2012 nominal appellant Attorney Ernest Bason 

passed away.” (Suggestion of Death at 1.) We asked the 

Union and the Government to file letter submissions 

addressing the possible effect of Bason’s death on our 

jurisdiction and whether “this matter is now moot because 

Mr. Bason cannot be reinstated to his position as an Assistant 

Attorney General.” (10/17/13 Letter at 1.) Both parties did 

so.

II.

This proceeding presents us with two threshold 

questions: (1) whether we retain certiorari jurisdiction over 

proceedings that were filed in the Virgin Islands courts before 

the date of enactment of H.R. 6116; and (2) even if we 

thereby retain certiorari jurisdiction in the present 

circumstances under H.R. 6116, whether Bason’s death moots 

the current certiorari proceeding. While we conclude that we 
15

still possess certiorari jurisdiction over proceedings that were 

filed in the Virgin Islands courts before H.R. 6116’s 

enactment date, we will nevertheless dismiss the Union’s 

certiorari petition as moot on account of Bason’s death. 

Accordingly, we cannot—and do not—reach the question of 

“whether title 24, section 374(a) of the Virgin Islands Code is 

harmonious with title 3, section 113(a) of the Virgin Islands 

Code.”1

A. H.R. 6116

In 1984, Congress authorized the Legislature of the 

Virgin Islands to establish an appellate court for the Virgin 

Islands. See, e.g., Kendall I, 716 F.3d at 86. In 2004, the 

legislature created the Supreme Court of the Virgin Islands, 

which began to exercise its judicial functions in 2007. See, 

e.g., Defoe, 702 F.3d at 738-39. “[A]s set out in 48 U.S.C. § 

1613, we have certiorari jurisdiction over the Virgin Islands 

Supreme Court: ‘[F]or the first fifteen years following the 

establishment of the appellate court authorized by section 

1611(a) of this title, the United States Court of Appeals for 

the Third Circuit shall have jurisdiction to review by writ of 

certiorari all final decisions of the highest court of the Virgin 

Islands from which a decision could be had.’” Id. at 739. 

Our certiorari jurisdiction under § 1613 “is not limited to 

decisions on federal law,” and “[w]e also have the discretion 

 1 We likewise do not address “whether the 

Virgin Islands Supreme Court’s decision is a ‘final decision’ 

within the meaning of [§ 1613] in light of that court’s remand 

to the Virgin Islands Superior Court.”
16

to review the Virgin Islands Supreme Court’s decisions on 

local law” (under a deferential standard of review). Id. at 743 

(citing Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 96 

(3d Cir. 2010)). This temporary period of certiorari 

jurisdiction was designed to allow enough time for the new 

court “to develop ‘sufficient institutional traditions [of its 

own] to justify direct review by the Supreme Court of the 

United States.’” Kendall I, 716 F.3d at 86 (quoting § 1613). 

Once the Virgin Islands Supreme Court established the 

requisite traditions, it would assume the same role as the 

highest court of any state, i.e., “it will be the final authority 

on Virgin Islands law.” Defoe, 702 F.3d at 739. The United 

States Supreme Court would then exercise certiorari review 

over the Virgin Islands Supreme Court’s final decisions on 

questions of federal law, and, in contrast, we would no longer 

possess certiorari jurisdiction as to its rulings on questions of 

either federal or Virgin Islands local law. See, e.g., id.

“Recognizing that the Virgin Islands Supreme Court 

might develop sufficient institutional traditions before the 

fifteen-year mark, however, Congress required this Court to 

regularly evaluate and report on its progress.” Kendall I, 716 

F.3d at 86 (citing § 1613; Defoe, 702 F.3d at 739-40). The 

Virgin Islands Supreme Court “passed that test with flying 

colors” in 2012 “when a committee of this Court 

recommended to the Third Circuit Judicial Council that 

Congress eliminate our certiorari jurisdiction over Virgin 

Islands Supreme Court decisions in favor of direct review by 

the United States Supreme Court.” Id. (citing Judicial 

Council of the U.S. Court of Appeals for the Third Circuit, 

Report on the Virgin Islands Supreme Court 1 (2012), 
17

available at

http://www.visusupremecourt.org/wfData/files/BookletReport

ofVirginIslandsSupremeCourt.pdf)). The Executive and 

Legislative Branches acted with dispatch on our 

recommendation:

By December 13, 2012, both the House of 

Representatives and the Senate had passed H.R. 

6116, a bill that would eliminate our certiorari 

jurisdiction over final decisions of the Virgin 

Islands Supreme Court and replace it with direct 

review by the Supreme Court of the United 

States. See An Act to amend the Revised 

Organic Act of the Virgin Islands to provide for 

direct review by the United States Supreme 

Court of decisions of the Virgin Islands 

Supreme Court, H.R. 6116, §§ 1-2, 112th Cong. 

(2012). President Obama signed H.R. 6116 into 

law on December 28, 2012.

Id. Specifically, Section 1 of this legislation amends § 1613 

by striking the language granting this Court certiorari 

jurisdiction over final decisions of the highest court of the 

Virgin Islands. Section 2 of H.R. 6116 adds the following 

section to the statute governing the jurisdiction of the United 

States Supreme Court:

“[28 U.S.C.] § 1260. Supreme Court of the 

Virgin Islands; certiorari
18

“Final judgments or decrees rendered by the 

Supreme Court of the Virgin Islands may be 

reviewed by the Supreme Court by writ of 

certiorari where the validity of a treaty or statute 

of the United States is drawn in question or 

where the validity of a statute of the Virgin 

Islands is drawn in question on the ground of its 

being repugnant to the Constitution, treaties, or 

laws of the United States, or where any title, 

right, privilege, or immunity is specially set up 

or claimed under the Constitution or the treaties 

or statutes of, or any commission held or 

authority exercised under, the United States.”

Section 3 of H.R. 6116, entitled “Effective Date,” provides 

that “[t]he amendments made by this Act apply to cases 

commenced on or after the date of the enactment of this Act,” 

i.e., December 28, 2012.

This Court has addressed the effect of H.R. 6116 on its 

certiorari jurisdiction in two opinions involving Virgin 

Islands Supreme Court decisions on questions of federal law: 

Kendall I, 716 F.3d 82, and In re Kendall, 712 F.3d 814 (3d 

Cir. 2013) (“Kendall II”). In Kendall I, we decided that this 

legislation does not strip us of our certiorari jurisdiction over 

cases “in which certiorari has been granted and the matter is 

awaiting decision at the time of the bill’s enactment.” 

Kendall I, 716 F.3d at 87. The Kendall II Court then 

characterized Kendall I as “holding that Congress’s recent 

elimination of the Third Circuit’s certiorari jurisdiction over 

decisions of the Virgin Islands Supreme Court does not 
19

affect, at a minimum, certiorari petitions filed before the 

effective date of the jurisdiction-stripping act.” Kendall II, 

712 F.3d at 821 n.3 (citing Kendall I).

“When interpreting a statute, we normally presume 

that the statute does not apply retroactively—that is, to cases 

pending on the date of the law’s enactment—absent clear 

congressional intent to the contrary.” Kendall I, 716 F.3d at 

87 (citing Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006)). 

As we observed in Kendall I, the presumption against 

retroactivity does not apply to legislation that merely alters 

jurisdiction. See, e.g., id. “‘[U]nlike other intervening 

changes in the law, a jurisdiction-conferring or jurisdictionstripping statute usually “takes away no substantive rights but 

simply changes the tribunal that is to hear the case.”’” Id.

(quoting Hamdan, 548 U.S. at 576-77). Accordingly, “‘no 

retroactivity problem arises’ with respect to an intervening 

change in jurisdiction ‘because the change in the law does not 

“impair rights a party possessed when he acted, increase a 

party’s liability for past conduct, or impose new duties with 

respect to transactions already completed.”’” Id. (quoting 

Hamdan, 548 U.S. at 577).

This “‘does not mean, however, that all jurisdictionstripping provisions . . . must apply to cases pending at the 

time of their enactment.’” Id. (quoting Hamdan, 548 U.S. at 

577). Simply put, a court still looks to generally applicable 

rules of statutory construction to decide whether a statute 

takes away its jurisdiction. This is exactly what we did in 

Kendall I:
20

After all, “‘[n]ormal rules of [statutory] 

construction’ . . . may dictate otherwise.” 

[Hamdan, 548 U.S. at 577] (quoting Lindh v. 

Murphy, [521 U.S. 320, 326 (1997)]). Here, 

Congress spoke clearly: “[t]he amendments 

made by [H.R. 6116]”—that is, the elimination 

of the Third Circuit’s certiorari jurisdiction and 

substitution of such review by the United States 

Supreme Court—“apply to cases commenced 

on or after the date of the enactment of [H.R. 

6116].” H.R. 6116, § 3. No matter whether 

“cases commenced” carries a broader meaning 

referring to the filing of a complaint in the 

Superior Court or a narrower meaning referring 

to the filing of a certiorari petition in this 

Court—an issue we need not decide today—

Kendall commenced this case long before H.R. 

6116’s enactment.

Id. In other words, H.R. 6116 only applies to “cases 

commenced” on or after enactment date, which means that it 

does not apply to “cases commenced” before that date.

In Kendall I, we addressed the Ninth Circuit’s ruling in 

Santos v. Guam, 436 F.3d 1051 (9th Cir. 2006), which held 

that Congress’s elimination of the Ninth Circuit’s certiorari 

jurisdiction over the Guam Supreme Court (and substitution 

of direct review by the United States Supreme Court) applied 

to pending cases. Kendall I, 716 F.3d at 87. We noted that 

the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557 

(2006), rejected the theory that jurisdiction-stripping 
21

provisions apply retroactively in the absence of an express 

reservation for pending cases. Kendall I, 716 F.3d at 87. 

“More importantly,” H.R. 6116 was markedly different from 

the legislation at issue in Santos:

In Santos, the Ninth Circuit addressed a statute 

in which Congress was completely silent about 

the effective date of the jurisdiction-stripping 

provision. Santos, 436 F.3d at 1053 (explaining 

that Congress did not “express[ ] an intent as to 

the effective date”). By contrast, Congress was 

explicit that H.R. 6116’s amendments apply 

only “to cases commenced on or after the date 

of the enactment” of the statute. See H.R. 6116, 

§ 3. As a result, we retain certiorari jurisdiction 

over all cases “commenced” before the 

President signed H.R. 6116, including this one. 

See Hamdan, [548 U.S. at 584] (drawing the 

negative inference that Congress did not intend 

to eliminate jurisdiction over pending detainee 

habeas petitions where the statute was silent 

about whether its jurisdiction-stripping 

subsection applied to cases even though it 

expressly made two other subsections 

retroactive).

Id. at 87-88.

The Government and the Union filed their respective 

Virgin Islands Superior Court actions in 2011, and the 

Government filed its ultimately successful appeal to the 
22

Virgin Islands Supreme Court in the same year. Although the 

Virgin Islands Supreme Court entered its order and opinion 

on November 26, 2012, the Union filed its otherwise timely 

certiorari petition on January 23, 2013—after the date of 

enactment of H.R. 6116, i.e., December 28, 2012. We 

therefore must decide the specific issue that we refused to 

reach in Kendall I: “whether ‘cases commenced’ carries a 

broader meaning referring to the filing of a complaint in the 

Superior Court or a narrower meaning referring to the filing 

of a certiorari petition in this Court.” Id. at 87. Relying in 

particular on the Supreme Court’s decision in Slack v. 

McDaniel, 529 U.S. 473 (2000), as well as the alleged 

purpose of the legislation, the Government asks us to construe 

this “cases commenced” language to mean the filing of a 

certiorari petition. Based on the language of the statute, 

analogous legislation, and prior case law, we agree with the 

Union that we retain certiorari jurisdiction over proceedings 

that were filed in the Virgin Islands courts before H.R. 6116’s 

enactment date. This includes the proceedings filed by the 

Government and the Union in the Virgin Islands Superior 

Court in 2011. In other words, we believe that “‘cases 

commenced’ carries a broader meaning referring to the filing 

of a complaint in the [Virgin Islands] Superior Court.”

The plain language of the statutory terms “cases 

commenced” appears to encompass proceedings filed in the 

Virgin Islands courts. See, e.g., United States v. Brown, 740 

F.3d 145, 149 (3d Cir. 2014) (“‘[T]he starting point for 

interpreting a statute is the language of the statute itself.’ 

When words are not defined within the statute, we construe 

them ‘in accordance with [their] ordinary or natural meaning.’ 
23

We do not, however, do so blindly.” (citations omitted)); 

Allen ex rel. Martin v. LaSalle Bank, 629 F.3d 364, 367 (3d 

Cir. 2011) (“To discern Congress’ intent we begin with the 

text. If the statute’s plain language is unambiguous and 

expresses that intent with sufficient precision, we need not 

look further.” (citations omitted)). The term “case” has 

generally been understood to include judicial proceedings of 

any kind. For instance, the Supreme Court has noted that 

“‘[t]he words “case” and “cause” are constantly used as 

synonyms in statutes . . ., each meaning a proceeding in court, 

a suit, or action.’” Hohn v. United States, 524 U.S. 236, 241 

(1998) (quoting Blyvew v. United States, 13 Wall. 581, 595, 

20 L. Ed. 638 (1871))). “[A] ‘case’ in the broader sense” has 

been defined as “‘[a] civil or criminal proceeding, action, suit, 

or controversy at law or in equity.’” In re Zarnel, 619 F.3d 

156, 166 (2d Cir. 2010) (quoting Black’s Law Dictionary 243 

(9th ed. 2009)). In addition, a case or cause of action has 

traditionally been understood as “commenced when it is first 

brought in an appropriate court.” Pritchett v. Office Depot, 

Inc., 420 F.3d 1090, 1094 (10th Cir. 2005) (citing Fed. R. 

Civ. P. 3); see also, e.g., Bush v. Cheaptickets, Inc., 425 F.3d 

683, 686 (9th Cir. 2005) (“In California, as in the federal 

courts, a suit is ‘commenced’ upon filing.” (citations 

omitted)).

If it had indeed meant to strip this Court of certiorari 

jurisdiction over proceedings already filed in the Virgin 

Islands courts before the enactment date of the legislation, 

Congress could have done so far more clearly. In fact, it has 

done as much in the past. For example, Congress could have 

provided that H.R. 6116 applies to “appellate cases 
24

commenced” or “certiorari proceedings commenced” in the 

Third Circuit. It evidently could have stripped this Court of 

any remaining certiorari jurisdiction by simply omitting any 

reference to an effective date, which is what Congress 

apparently did with respect to the Ninth Circuit’s jurisdiction 

over the Guam Supreme Court. Santos, 436 F.3d at 1053; see 

also Kendall I, 716 F.3d at 87. When Congress stripped the 

First Circuit of its jurisdiction over the Puerto Rico Supreme 

Court, it expressly stated that “such repeal shall not deprive 

the Court of Appeals of jurisdiction to hear and determine 

appeals taken to that court from the Supreme Court of Puerto 

Rico before the effective date of this Act.” Act of Aug. 30, 

1961, Pub. L. No. 87-189, § 3, 75 Stat. 417 (1961). In 1988, 

Congress amended the statutory scheme governing the 

Supreme Court’s certiorari jurisdiction. However, in doing 

so, it expressly stated that the amendments “shall not apply to 

cases pending in the Supreme Court on the effective date of 

such amendment” (or otherwise affect the right to review of a 

judgment or decree entered before the effective date). Act of 

June 27, 1988, Pub. L. No. 100-352, § 7, 102 Stat. 662 

(1988). Congress actually included this type of language with 

respect to stripping the District Court of the Virgin Islands of 

appellate jurisdiction over local actions upon the creation by 

the Virgin Islands Legislature of a Virgin Islands appellate 

court, i.e., the legislation stated that it “shall not result in the 

loss of jurisdiction of the district court over any appeal then 

pending in it.” 48 U.S.C. § 1613a(d).

In H.R. 6116, Congress took a different approach than 

it has in similar circumstances in the past. In short, the 
25

“Effective Date” section of H.R. 6116 does not refer to a 

particular type of proceeding or a specific judicial body. This 

section instead uses expansive and otherwise unmodified 

language in order to govern the applicability of amendments 

taking away jurisdiction from one court and granting 

jurisdiction to another—namely—“cases commenced” on or 

after the date of enactment. Instead of enacting an exception 

reserving our jurisdiction over “pending appeals” (or even 

“pending cases”), Congress chose to make it clear that it is 

the jurisdiction-stripping (and jurisdiction-conferring) 

legislation itself that only applies to “cases commenced” on 

or after the enactment date. Congress likewise has repeatedly 

used somewhat similar language with respect to the 

applicability of amendments made to other statutory schemes. 

These include the supplemental jurisdiction statute, Judicial 

Improvements Act of 1990, Pub. L. 101-650, Title III, § 310, 

104 Stat. 5089 (1990) (“The amendments made by this 

section shall apply to civil actions commenced on or after the 

date of the enactment of this Act”), the removal jurisdiction 

statute, Judicial Improvements Act of 1985, Pub. L. No. 99-

336, § 3(b), 100 Stat. 633 (2006) (“The Amendment made by 

this section shall apply with respect to claims in civil actions 

commenced in State courts on or after the date of the 

enactment of this section.”), and the statute governing 

removal and interlocutory appeals in class action proceedings, 

Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 9, 

119 Stat. 4 (2005) (“The amendments made by this Act shall 

apply to any civil action commenced on or after the date of 

enactment of this Act.”). The term “cases” evidently carries a 

broader meaning than the words “civil action” used in these 
26

various enactments (e.g., “cases” would include both criminal 

as well as civil proceedings).

We believe that prior case law also supports our 

reading of H.R. 6116. After all, we have indicated that

“Congress’s recent elimination of the Third Circuit’s 

certiorari jurisdiction over decisions of the Virgin Islands 

Supreme Court does not affect, at a minimum, certiorari 

petitions filed before the effective date of the jurisdictionstripping act.” Kendall II, 712 F.3d at 821 n.3 (citing Kendall 

I). In Hamdan, the federal government filed a motion to 

dismiss a writ of certiorari pursuant to the Detainee Treatment 

Act, which was enacted after the Supreme Court had already 

granted the writ and (at least according to the federal 

government) had the immediate effect of repealing

jurisdiction “not just over detainee habeas actions yet to be 

filed but also over any such actions then pending in any 

federal court—including this Court.” Hamdan, 548 U.S. at

574. As we observed in Kendall I, the Supreme Court instead 

applied traditional rules of statutory construction to draw “the 

negative inference that Congress did not intend to eliminate 

jurisdiction over pending detainee habeas petitions where the 

statute was silent about whether its jurisdiction-stripping 

subsection applied to cases even though it expressly made 

two other subsections retroactive.” Kendall I, 716 F.3d at 88 

(citing Hamdan, 548 U.S. at 584). The Hamdan Court also 

rejected the theory that “jurisdiction-stripping provisions 

automatically apply retroactively absent an express 

reservation of jurisdiction over pending cases.” Id. at 87 

(citing Hamdan, 548 U.S. at 584). 
27

The Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”) amended 28 U.S.C. § 2253 to add a new 

subsection setting forth “certificate of appealability” 

requirements governing the right to appeal in the habeas 

context. Slack, 529 U.S. at 477-78, 480-81. In Slack, the 

petitioner filed his habeas petition before AEDPA’s effective 

date, but the notice of appeal (as well as the district court’s 

order dismissing the petition) were filed after the legislation 

went into effect. Id. at 479-80. The Supreme Court 

considered “whether the pre- or post-AEDPA version of § 

2253 controls Slack’s right to appeal.” Id. at 481. In 

answering this question, the Slack Court took into account its 

prior AEDPA decision in Lindh v. Murphy, 521 U.S. 320 

(1997), in which it concluded that the new version of 28 

U.S.C. § 2254(d) (stating that no habeas relief shall be 

granted with respect to any claim adjudicated on the merits in 

state court unless the decision was contrary to, or involved an 

unreasonable application, of clearly established federal law or 

was based on an unreasonable factual determination) did not 

apply to habeas applications that were already pending when 

the statute was passed, id. at 323-27. Applying traditional 

rules of statutory construction, the Lindh Court drew a 

negative implication from an AEDPA provision stating that a 

different part of the legislation (applicable in the capital 

context) applies to cases pending on or after the date of 

enactment. Id. at 327 (reading provision “as indicating 

implicitly that the amendments to chapter 153 were assumed 

and meant to apply to the general run of habeas cases only 

when those cases had been filed after the date of the Act.”). 

The Supreme Court, however, rejected Slack’s attempt to rely 

on Lindh in support of his contention that § 2253(c) did not 
28

apply to him because he commenced his case in the district 

court before AEDPA’s enactment. Slack, 529 U.S. at 481. 

“[T]he [Lindh] Court held that AEDPA’s amendments to 28 

U.S.C. § 2254, the statute governing entitlement to habeas 

relief in the district court, applied to cases filed after 

AEDPA’s effective date.” Id. (citing Lindh, 521 U.S. at 327). 

“For purposes of implementing the holding in Lindh, it must 

be recognized that § 2254 is directed to proceedings in the 

district courts while § 2253 is directed to proceedings in the 

appellate courts.” Id. In other words, because § 2254 is 

directed to proceedings in the district courts, it applies to 

cases filed in the district court after AEDPA. Id. Section 

2253 is directed to appellate proceedings, and it thereby 

applies to appellate proceedings initiated post-AEDPA even if 

the habeas petition itself was filed before the effective date of 

this legislation. Id. Although Lindh requires the court of 

appeals to apply pre-AEDPA law in reviewing the district 

court’s ruling for cases commenced in the district court preAEDPA, the Supreme Court concluded that post-AEDPA law 

“governs the right to appeal in cases such as the one now 

before us.” Id.

The Slack Court further explained that:

While an appeal is a continuation of the 

litigation started in the trial court, it is a distinct 

step. [Hohn, 524 U.S. at 241]; McKenzie v. A. 

Engelhard & Sons Co., [266 U.S. 131] (1924). 

We have described proceedings in the courts of 

appeals as “appellate cases.” E.g., Order of 

Apr. 30, 1991, 500 U.S. 1009 (amendments to 
29

Federal Rules of Appellate Procedure “shall 

govern all proceedings in appellate cases 

thereafter commenced”). Under AEDPA, an 

appellate case is commenced when the 

application for a COA is filed. Hohn, [524 U.S. 

at 241]. When Congress instructs us (as Lindh

says it has) that application of a statute is 

triggered by the commencement of a case, the 

relevant case for a statute directed to appeals is 

the one initiated in the appellate court. Thus, § 

2253(c) governs appellate court proceedings 

filed after AEDPA’s effective date. We see no 

indication that Congress intended to tie 

application of the provisions to the date a 

petition was filed in the district court. The 

COA statute establishes procedural rules and 

requires a threshold inquiry into whether the 

circuit court may entertain an appeal. [Id. at 

248]; cf. Lindh, [521 U.S. at 327]. Because 

Slack sought appellate review two years after 

AEDPA’s effective date, § 2253(c) governs his 

right to appeal.
30

Id. at 481-82.2

At least at first blush, Slack does seem to weigh in 

favor of the Government’s interpretation of H.R. 6116, i.e., 

because the legislation is supposedly directed to proceedings 

in the Third Circuit, it would purportedly then apply to 

proceedings initiated in the Third Circuit after H.R. 6116’s 

date of enactment. Nevertheless, we do not find Slack to be 

controlling in the present circumstances. Initially, the 

Supreme Court was not confronted with an express provision 

stating that amendments would apply to “cases commenced” 

on or after the date of enactment of the legislation. It 

accordingly did not discuss whether there may be a 

meaningful difference between such an open-ended and 

unmodified provision and a provision that refers, for instance, 

to “appellate cases commenced.” Cf., e.g., AEDPA, Pub. L. 

104-132, tit. IX, § 903(c), 110 Stat. 1214 (1996) (providing 

that fee revision amendments apply to “cases commenced on 

or after the date of enactment” and “appellate proceedings, in 

which an appeal is perfected on or after the date of 

enactment”). In fact, AEDPA lacked any express provision 

governing the applicability of § 2253 (or § 2254) to pending 

 2

 The Supreme Court in Slack noted that the 

petitioner in Hohn had also argued that § 2253(c) did not 

apply because he had filed his habeas petition before 

AEDPA’s effective date. Slack, 529 U.S. at 482. “Though 

our opinion did not discuss whether § 2253(c) applied to 

Hohn, we would have had no reason to reach the issue we did 

resolve, that we had statutory certiorari jurisdiction to review 

the denial of a COA, if AEDPA did not apply at all.” Id.
31

cases (and the Supreme Court accordingly turned to a 

provision stating that a different chapter of this habeas 

legislation “shall apply to cases pending on or after the date 

of the enactment of this Act”). The habeas provisions at issue 

in Slack and Lindh likewise did not divest one court of its 

jurisdiction and confer such jurisdiction on another court. In

contrast, we must give effect to a statutory provision stating 

that amendments stripping us of certiorari jurisdiction (and 

vesting certiorari jurisdiction in the Supreme Court) apply to 

“cases commenced” on or after the date of enactment. The 

statutory language at issue, Congress’s use of both similar 

and dissimilar language in other related contexts, and prior 

case law all weigh in favor of reading of this statutory 

provision as “referring to the filing of a complaint in the 

Superior Court”—and we do not believe that the Supreme 

Court’s ruling in Slack alters our conclusion.

We likewise reject the Government’s assertion that the 

intent of H.R. 6116 “can only be accomplished only if the 

Supreme Court of the United States assumes exclusive 

jurisdiction over certiorari petitions filed after December 28, 

2012, the effective date of the act.” (Respondent’s 

Jurisdiction Brief at 4.) We acknowledge that Congress 

passed and the President signed H.R. 6116 after “a committee 

of this Court recommended to the Third Circuit Judicial 

Council that Congress eliminate our certiorari jurisdiction 

over Virgin Islands Supreme Court decisions in favor of 

direct review by the United States Supreme Court” because 

the new court had succeeded in developing sufficient 

institutional traditions to justify such direct review. Kendall 

I, 716 F.3d at 86 (citation omitted). In other words, the court 
32

created by the Virgin Islands Legislature passed its test “with 

flying colors.” Id. (citation omitted). Nevertheless, taken to 

its logical conclusion, the notion that there is no longer any 

reason for us to review decisions by the Virgin Islands 

Supreme Court would indicate that we should also lose 

jurisdiction even where the certiorari petition was filed or 

granted before H.R. 6116’s enactment date. Although it 

could have taken this step (and evidently has done so in the 

past, see, e.g., id. at 87), Congress instead chose to include an 

explicit provision making it clear that its jurisdiction-stripping 

amendments only apply to “cases commenced” on or after the 

enactment date. We accordingly have already determined 

that we retain jurisdiction with respect to proceedings in 

which the certiorari petitions were either granted or filed 

before this date. We add that, like litigants who filed their 

certiorari petitions before December 28, 2012, parties who 

were in the midst of litigating a proceeding in the Virgin 

Islands courts could have reasonably expected that they 

would have the right to file a petition for certiorari with the 

Third Circuit and, at the very least, possibly obtain further 

review with respect to questions of Virgin Islands law (which 

would otherwise not be available in the United States 

Supreme Court). After all, the Government and the Union 

commenced their respective Virgin Islands Superior Court 

actions in 2011, and the Virgin Islands Supreme Court, in 

turn, did not render its own decision until November 2012. 

We find it improbable that H.R. 6116 was ever meant to strip 

this Court of certiorari jurisdiction when the enactment date 
33

of this legislation fell right in the middle of the applicable 

time period for filing a certiorari petition with this Court.3

B. Mootness

Even though we thereby retain certiorari jurisdiction 

under H.R. 6116, we nevertheless must dismiss the certiorari 

petition as moot because of Bason’s death.

Federal courts generally lack jurisdiction whenever 

“‘“the issues presented are no longer live or the parties lack a 

legally cognizable interest in the outcome.”’” McNair v. 

Synapse Group Inc., 672 F.3d 213, 224 n.11 (3d Cir. 2012) 

(quoting Merle v. United States, 351 F.3d 92, 94 (3d Cir. 

2003)). The mootness determination implicates an intensely 

factual inquiry requiring the court to assess whether it could 

award meaningful relief despite changing circumstances. 

See, e.g., Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 

 3 Likewise, we must reject the Government’s 

theory that the Union’s approach to H.R. 6116 would result in 

both the United States Supreme Court and this Court 

possessing concurrent jurisdiction. On the contrary, “we 

retain certiorari jurisdiction over all cases ‘commenced’ 

before the President signed H.R. 6116,” Kendall I, 716 F.3d 

at 88 (citation omitted), and we now conclude that such cases 

includes proceedings commenced in the Virgin Islands courts 

before that date. In turn, the Supreme Court would not 

possess jurisdiction over such cases. For “cases commenced” 

on or after this date, the United States Supreme Court 

possesses exclusive certiorari jurisdiction. 
34

914-16 (3d Cir. 1987). “The mootness doctrine is centrally 

concerned with the court’s ability to grant effective relief.” 

County of Morris v. Nationalist Movement, 273 F.3d 527, 

533 (3d Cir. 2001) (citing Blanciak v. Allegheny Ludlum 

Corp., 77 F.3d 690, 698-99 (3d Cir. 1996)). As the Union 

notes, an otherwise lawful order does not become moot 

merely because changes in circumstances indicate that the 

need for the order may be less then when it was originally 

entered. See, e.g., C-B Buick, Inc. v. NLRB, 506 F.2d 1087, 

1093 (3d Cir. 1974). Additionally, voluntary compliance or 

cessation of the allegedly unlawful conduct on the part of the 

defendant generally does not render a case as moot. See, e.g., 

Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) 

(stating that party claiming voluntary compliance carries 

formidable burden of showing that it is absolutely clear that 

allegedly wrongful conduct could not reasonably be expected 

to recur); Dep’t of Justice v. Fed. Labor Relations Auth., 991 

F.2d 285, 289 (5th Cir. 1993) (“[Unfair labor practice] cases, 

however, generally do not become moot when the individual 

parties resolve the specific matter that gave rise to the dispute 

because the ‘Board is entitled to have the resumption of the 

unfair practice barred by an enforcement decree.’” (quoting 

NLRB v. Raytheon Co., 398 U.S. 25, 27 (1970))). “Instead, 

the dismissal of an action on mootness grounds requires the 

defendant to demonstrate that ‘there is no reasonable 

expectation that the wrong will be repeated.’” Sutton v. 

Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (quoting 

Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. 

v. City of Jacksonville, 508 U.S. 656, 662 (1993)). “[T]he 

‘capable of repetition yet evading review’ doctrine permits 

consideration of a case that ‘would otherwise be deemed 
35

moot’ when ‘“(1) the challenged action is, in its duration, too 

short to be fully litigated prior to cessation or expiration, and 

(2) there is a reasonable expectation that the same 

complaining party will be subject to the same action again.”’” 

McNair, 672 F.3d at 224 n.11 (quoting Merle, 351 F.3d at 

94).

We do not believe that the current certiorari 

proceeding falls under the “capable of repetition yet evading 

review” doctrine. According to the Union, H.R. 6116 

forecloses review of Virgin Islands Supreme Court decisions 

on questions of Virgin Islands law, and any future 

reinstatement issue that may arise between the Union and the 

Government thereby will forever evade review. A statute 

stripping a federal circuit court of certiorari jurisdiction over 

final decisions of the highest court of a territory (and vesting 

the United States Supreme Court with certiorari jurisdiction at 

least with respect to questions of federal law) does not appear 

to represent the type of occurrence that could implicate this 

doctrine. In any event, we have already concluded that we 

retain certiorari jurisdiction with respect to proceedings that 

were filed in the Virgin Islands courts before H.R. 6116’s 

date of enactment, including the proceedings filed by the 

Union and the Government in 2011. Furthermore, it is 

Bason’s death that moots current certiorari proceeding, and 

this unfortunate and seemingly unexpected occurrence does 

not render this case capable of repetition yet evading review. 

Cf., e.g., Compassion in Dying v. Washington, 79 F.3d 790, 

796 n.4 (9th Cir. 1996) (en banc) (“We would think that a 

distinction could reasonably be drawn between the terminally 

ill, all of whom necessarily will die prior to completion of the 
36

litigation, and those whose cases become moot for more 

mundane or less predictable reasons.”), rev’d on other 

grounds sub nom. Washington v. Glucksberg, 521 U.S. 702 

(1997).

The Union vigorously contends that it is the real party 

in interest here. For our part, we recognize that a labor 

union’s interest may extend beyond merely protecting the 

rights of an allegedly injured employee and that it accordingly 

may have a right to advocate on behalf of other similarly 

situated members as well as the collective bargaining unit as a 

whole. In American Federation of Government Employees, 

Local 1941 v. Federal Labor Relations Authority, 837 F.2d 

495 (D.C. Cir. 1988), a local of the American Federation of 

Government Employees (“AFGE”) sought review of a 

decision of the Federal Labor Relations Authority (“FLRA”), 

holding “that the credentials committee of an Army hospital 

about to conduct a hearing to consider adverse information 

relating to the medical procedures and proficiency of a 

certified ophthalmologist employed at the hospital did not 

commit an unfair labor practice when it refused the 

employee’s request to have his union representative with him 

at the hearing,” id. at 496. Although the doctor resigned from 

his position and died a short time after the hospital 

commander had adopted the committee’s recommendations to 

restrict his privileges, id. at 497, the D.C. Circuit allowed the 

union to pursue an unlawful labor practice action:

This controversy is not mooted by Dr. Hanna’s 

death. As exclusive representative of Dr. 

Hanna’s bargaining unit, AFGE has a derivative 
37

right to be present, on the employee’s request, 

at an examination reasonably believed by the 

employee potentially to result in disciplinary 

action. 5 U.S.C. § 7114(a)(2)(B). Thus the 

Union itself has standing to contest the denial of 

representation as an unfair employment 

practice. Available remedies may include a 

cease and desist order or the posting of an 

unfair labor practice notice. See, e.g., AFGE v. 

FLRA, 777 F.2d 751, 753 n.13 (D.C. Cir. 

1985).

Id. at 497 n.2.; see also, e.g., Dep’t of Justice v. FLRA, 144 

F.3d 90, 91-96 (D.C. 1998) (rejecting INS’s theory that union 

was not acting as exclusive representative at oral reply stage 

of disciplinary proceedings on grounds that union sought to 

vindicate employees’ individual interests as well as 

bargaining unit’s broader interest in proper administration of 

collective bargaining agreement and likewise rejecting 

union’s request to sanction INS for pursuing appeal after its 

alleged destruction of certain documents because whether 

agency committed unfair labor practice in refusing to produce 

documents was unaffected by whether agency later destroyed 

such documents); AFGE, Local 3090, 777 F.2d at 753 n.13 

(“This ‘other action’ may include the posting of a notice 

indicating that an agency has been found to have committed 

an unfair labor practice and that it has been ordered to cease 

committing such practices in the future. An order requiring 

the Home to post such a notice would of course afford [the 

union] an as yet unrealized remedy for the alleged unfair 

labor practice.” (citation omitted)). 
38

Furthermore, it is well established that, even though 

the death of a former employee may moot a reinstatement 

claim, a claim for back pay nevertheless survives his or her 

death. See, e.g., Scott v. Univ. of Del., 601 F.2d 76, 81 n.8 

(3d Cir. 1979) (“We address the merits of Scott’s individual 

[discrimination] claims because the claim for back pay and 

damages survives his death.”); abrogated on other grounds, 

EF Operating Corp. v. United Mine Workers of Am., 993 

F.2d 1046 (3d Cir. 1993); NLRB v. Atl. Towing Co., 179 

F.2d 497, 498 (5th Cir. 1950) (“Since the issuance of said 

[NLRB] order [requiring reinstatement with full 

reimbursement], Hendrix has died, but this does not render 

the case moot because, if the court sustains the order, 

Hendrix’s estate is entitled to be made whole for any loss of 

pay suffered by him”).

Nevertheless, the current certiorari proceeding presents 

this Court with an unusual and even unique set of 

circumstances. In short, the Virgin Islands Supreme Court’s 

order and opinion was entirely premised on the notion of 

reinstatement, and it would have dismissed the Government’s 

appeal if the Virgin Islands Superior Court had never ordered 

Bason’s immediate reinstatement. In its submission on 

mootness, the Union quotes the Virgin Islands Supreme 

Court’s holding “‘that section 113 of title 3 precluded the 

arbitrator and the Superior Court from mandating that the 

Government reinstate Bason as an Assistant Attorney 

General’” (Petitioner’s Mootness Letter at 3 (quoting UIWSIU, 2012 WL 5901921, at *5)) together with the statement 

that “‘it is not clear to this Court how the provisions of [the 

CBA] which permit reinstatement by an arbitrator of an 
39

Assistant Attorney General discharged without just cause can 

in any way be reconciled with the statutory enactment’” (id.

at 3-4 (quoting UIW-SIU, 2012 WL 5901921, at *5)). 

Specifically, the Virgin Islands Supreme Court concluded 

that, “[s]ince the portion of the December 13, 2011 Opinion 

and Judgment mandating Bason’s reinstatement constituted 

an appealable injunction, this Court possesses jurisdiction 

over that portion of the underlying order.” UIW-SIU, 2012 

WL 5901921, at *5. It then proceeded to reverse the Virgin 

Islands Superior Court’s opinion and judgment to the extent 

that it directed the Government to reinstate Bason. However, 

the Virgin Islands Supreme Court also dismissed the appeal 

“with respect to all other issues” (A22) because it agreed with 

the Union that the parties’ disagreement as to the calculation 

of back pay “precludes us from exercising jurisdiction,” id. at 

*3 (citation omitted). On remand, the Virgin Islands Superior 

Court has not yet disposed of the claim for back pay.

Bason’s death clearly moots any reinstatement claim 

on his behalf. See, e.g., Scott, 601 F.2d at 81 n.8 (“Insofar as 

Scott sought injunctive and declaratory relief compelling the 

University to reinstate him and renew his contract, these 

claims have been mooted by Scott’s death.”); Loveman, 

Joseph & Loeb v. NLRB, 146 F.2d 769, 772 (5th Cir. 1945) 

(“Furthermore, her death has rendered the question of her 

reinstatement moot.”). Given the critical role that 

reinstatement played in the Virgin Islands Supreme Court’s 

disposition, we do not see how we could reach the merits of 

its decision at this juncture. In other words, reinstatement 

represents the critical “hook” on which this entire certiorari 

proceeding rests, and, without it, “‘“the parties lack a legally 
40

cognizable interest in the outcome”’” of the certiorari 

proceeding itself. McNair, 672 F.3d at 224 n.11 (citation 

omitted). The proceeding thereby involves more than either 

changed circumstances indicating that the need for an order 

may be less than when it was first entered or voluntary 

compliance on the part of the Government. Likewise, this 

proceeding does not implicate, inter alia, the right of a union 

“to be present, on the employee’s request, at an examination 

reasonably believed by the employee potentially to result in 

disciplinary action.” AFGE, Local 1941, 837 F.2d at 497 n.2. 

While the issue of back pay may not be moot, this particular 

claim is not before us because the Virgin Islands Supreme 

Court concluded that it lacked appellate jurisdiction over this 

claim, which has yet to be decided by the Virgin Islands 

Superior Court. In fact, it appears that the Union (or Bason’s 

estate) could continue to litigate the claim for back pay (and 

possibly other claims for relief given Bason’s death) in the 

Virgin Islands courts. If the Union (or the Government) does 

not prevail before the Virgin Islands courts, it then could file 

a certiorari petition with us (and, as we have explained, H.R. 

6116 would not strip us of jurisdiction over such a petition).

III.

For the foregoing reasons, we will dismiss the Union’s 

certiorari petition as moot.