2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-28-2003

Bluebeard's Castle v. Govt of VI

Precedential or Non-Precedential: Precedential

Docket 02-2807

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Recommended Citation

"Bluebeard's Castle v. Govt of VI" (2003). 2003 Decisions. Paper 761.

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PRECEDENTIAL 

 Filed February 28, 2003 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 02-2807 

BLUEBEARD’S CASTLE, INC.; 

CASTLE ACQUISITIONS, INC. 

v. 

GOVERNMENT OF THE VIRGIN ISLANDS; 

ROY MARTIN, in his official capacity as Tax Assessor, 

 Appellants 

On Appeal from the District Court of the Virgin Islands 

Division of St. Thomas and St. John 

D.C. Civil Action No. 01-cv-00155 

(Honorable Thomas K. Moore) 

Argued November 8, 2002 

Before: SCIRICA, ALITO and RENDELL, Circuit Judges 

(Filed February 28, 2003) 

 NANDI SEKOU, ESQUIRE (ARGUED) 

 KERRY E. DRUE, ESQUIRE 

 Office of the Attorney General of 

 the Virgin Islands 

 Department of Justice 

 48B-50C Kronprindsens Gade 

 GERS Building, 2nd Floor 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00802 

 Attorneys for Appellants 

 

 SIMONE R.D. FRANCIS, ESQUIRE 

 (ARGUED) 

 CHAD C. MESSIER, ESQUIRE 

 WILLIAM S. McCONNELL, ESQUIRE 

 Dudley, Topper and Feuerzeig, LLP 

 1A Frederiksberg Gade 

 P.O. Box 756 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00804 

 Attorneys for Appellees 

OPINION OF THE COURT 

SCIRICA, Circuit Judge: 
In this appeal involving the assessment of real property 

taxes in the Unites States Virgin Islands, we address the 

special relationship between federal and territorial law. The 

District Court enjoined the Virgin Islands tax assessor from 

employing a certain tax assessment method, concluding it 

violated federal law. Contending that any claims can only 

arise under territorial law, the Government of the Virgin 

Islands maintains the District Court lacked federal subjectmatter jurisdiction. We hold that plaintiff has properly pled 

a federal claim. 

I. 

Plaintiff Equivest St. Thomas, Inc.1 is a United States 

Virgin Islands corporation that owns commercial property 

in St. Thomas, Virgin Islands. Plaintiff challenges the tax 

assessment of three of its hotel resort properties, 

Bluebeard’s Castle, Bluebeard’s Beach Club, and the 

Elysian Resort. For the 2000 tax year, the Government of 

the Virgin Islands assessed these three properties at more 

than $98 million, resulting in a tax bill of approximately 

$740,000. Plaintiff contends the assessment greatly exceeds 

the properties’ actual value of less than $40 million. 

_________________________________________________________________ 

1. Equivest is a corporation formed by the merger of the corporations 

listed in the caption, Bluebeard’s Castle, Inc. and Castle Acquisition, Inc. 

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Federal statutory law, and its Virgin Islands corollary, 

mandate that Virgin Islands real property must be assessed 

at "actual value."2 48 U.S.C. S 1401a; 33 V.I. Code Ann. 

S 2404. According to defendant Virgin Islands Tax Assessor 

Roy Martin, the Virgin Islands primarily employed 

replacement-cost value and declaration value in assessing 

the properties, methods he conceded do not reflect fair 

market value. Plaintiff contends that reliance on 

replacement-cost and declaration value violates federal 

statutory and Virgin Islands law. Plaintiff brought this 

action under 42 U.S.C. S 1983, seeking to enjoin 

defendants "from assessing real property taxes for 

commercial property in the Virgin Islands other than in 

strict accordance with 48 U.S.C. S 1401a and 33 V.I.C. 

S 2404."3 

Finding that plaintiff was likely to prevail on the merits 

and had met the other requirements for preliminary relief, 

the District Court enjoined the Government of the Virgin 

Islands "from collecting property taxes against the hotel 

properties owned by Equivest St. Thomas, Inc. until the tax 

assessor can establish at a trial on the merits that the 

property taxes on those properties have been assessed on 

their actual value." Equivest St. Thomas, Inc. v. Gov’t of the 

V.I., 208 F. Supp. 2d 545, 553 (D.V.I. 2002). 

At this time, the Government of the Virgin Islands does 

not contest the District Court’s resolution of the merits. 

Instead, the government contends the District Court lacked 
jurisdiction because this dispute arises not under federal 

law, but solely under Virgin Islands law.4 

_________________________________________________________________ 

2. For present purposes, we need not determine what constitutes actual 

value. We note, however, that historically, "[t]he phrases ‘saleable value,’ 

‘actual value,’ ‘cash value,’ and others used in the directions of assessing 

officers, all mean the same thing, and are designed to effect the same 

purpose." Cummings v. Merchants’ Nat’l Bank , 101 U.S. 153, 162 (1879). 

3. Plaintiff also contends defendants are in breach of a settlement 

agreement reached in an earlier case governing Virgin Islands tax 

assessment. See Berne Corp. v. Gov’t of the V.I. , 120 F. Supp. 2d 528 

(D.V.I. 2000), for a discussion of that case. 

4. The Government of the Virgin Islands also argues the District Court 

abused its discretion in rejecting plaintiff ’s argument that the injunction 

should be denied because plaintiff lacks "clean hands." The government 

contends plaintiff failed to pursue avenues for relief within the Virgin 

Islands and insufficiently cooperated with Virgin Islands officials in this 

matter. We see no abuse of discretion. 

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II. 

a. 

Property taxes are generally governed by state law. As we 

discuss, the importance to the states of their tax systems is 

such that comity mandates that federal courts are 

ordinarily powerless to entertain challenges to state 

taxation, even under 42 U.S.C. S 1983. Fair Assessment in 

Real Estate Assoc. v. McNary, 454 U.S. 100, 116 (1981). 

But the Virgin Islands is not a state;5 it is a territory 

subject to Congress’s broad power under Article IV, section 

3, clause 2 of the United States Constitution to govern 

territories.6 See Examining Bd. of Eng’rs, Architects and 

Surveyors v. Flores de Otero, 426 U.S. 572, 587 n.16 

(1975). 

 It is settled that Congress has sovereignty over the 

 territories of the United States and accordingly has 

 power to legislate for a territory with respect to all 

 subjects upon which the legislature of a state might 

 legislate within the state. Simms v. Simms, 1899, 175 

 U.S. 162, 168. It is also settled that Congress may 

 delegate to a territory such of these powers as it sees 

_________________________________________________________________ 

5. Were it a state, the District Court may have been subject to the 

prohibition on tax injunctions under the Tax Injunction Act, 28 U.S.C. 

S 1341, which provides, "The district courts shall not enjoin, suspend or 

restrain the assessment, levy or collection of any tax under State law 

where a plain, speedy and efficient remedy may be had in the courts of 

such State." Where applicable, the Tax Injunction Act implicates federal 

subject-matter jurisdiction. Moe v. Confederated Salish and Kootenai 

Tribes, 425 U.S. 463, 470 (1976); Collins Holding Corp. v. Jasper County, 

123 F.3d 797, 799 (4th Cir. 1997); Cumberland Farms, Inc. v. Tax 

Assessor, 116 F.3d 943, 945 (1st Cir. 1997). Nevertheless, we have held 

that the Tax Injunction Act does not apply to the Virgin Islands. Pan Am. 
World Airways v. Gov’t of the V.I., 459 F.2d 387, 391 (3d Cir. 1972). 

6. Clause 2 of Article IV, section 3 provides: 

 The Congress shall have Power to dispose of and make all needful 

 Rules and Regulations respecting the Territory or other Property 

 belonging to the United States; and nothing in this Constitution 

 shall be so construed as to Prejudice any Claims of the United 

 States, or of any particular State. 

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 fit. Binns v. United States, 1904, 194 U.S. 486, 491- 

 492; Christianson v. King County, 1915, 239 U.S. 356, 

 364-366. And the right of Congress to revise, alter and 

 revoke these delegated powers does not diminish the 

 powers while they reside in the territory. Hornbuckle v. 

 Toombs, 1873, 18 Wall. 648, 85 U.S. 648, 655-656; 

 District of Columbia v. John R. Thompson Co., 1953, 

 346 U.S. 100, 106. 

Harris v. Boreham, 233 F.2d 110, 113 (3d Cir. 1956). 

Accordingly, Congress undisputedly has constitutional 

authority to regulate property taxation in the territory of the 

Virgin Islands. 

In 1936, Congress exercised this authority. In order"to 

equalize and more equitably to distribute existing taxes on 

real property in the Virgin Islands of the United States and 

to reduce the burden of taxation now imposed on land in 

productive use in such islands," 48 U.S.C. S 1401, 

Congress enacted a statute governing property taxes in the 

Virgin Islands. 48 U.S.C. SS 1401-1401e. Section 1401a 

provides: 

 For the calendar year 1936 and for all succeeding 

 years all taxes on real property in the Virgin Islands 

 shall be computed on the basis of the actual value of 

 such property and the rate in each municipality of 

 such islands shall be the same for all real property 

 subject to taxation in such municipality whether or not 

 such property is in cultivation and regardless of the 

 use to which such property is put. 

The general requirements of S 1401a are followed by the 

more specific requirements of S 1401b, which also 

recognizes a measure of self-governance over specific 

property tax requirements: 

 Until local tax laws conforming to the requirements 

 of sections 1401 to 1401e of this title are in effect in a 

 municipality the tax on real property in such 

 municipality for any calendar year shall be at the rate 

 of 1.25 per centum of the assessed value. If the 

 legislative authority of a municipality failed to enact 

 laws for the levy, assessment, collection or enforcement 

 of any tax imposed under authority of said sections, 

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 within three months after May 26, 1936, the President 

 shall prescribe regulations for the levy, assessment, 

 collection, and enforcement of such tax, which shall be 

 in effect until the legislative authority of such 

 municipality shall make regulations for such purposes. 

This section created an interim tax rate and specified a 

source of interim regulations over the tax collection system. 

But these provisions were to apply only "until local tax laws 

conforming to the requirements of sections 1401 to 1401e 

of this title are in effect," with respect to the tax rate, and 

"until the legislative authority of [a] municipality shall make 

regulations for such purposes," with respect to tax 

collection and enforcement mechanisms. 

The two sections fit together. Section 1401a provides 

general requirements for property taxation in the Virgin 

Islands--that taxes be uniformly assessed and that they be 

"computed on the basis of the actual value" of the 

properties taxed. Section 1401b provides details that 

conform with the more general requirements of 1401a-- 

setting tax rates and directing the President to prescribe 

regulations.7 Both 1401b requirements are subject to 

change by local legislation, but they must "conform[ ] to the 

requirements of sections 1401 to 1401e"--including the 

general requirements in 1401a. The federal statute, 

therefore, contemplates a hybrid scheme of real property 

law: the general requirements are set by the federal 

government, with specifics established as a matter of 

territorial law consistent with federal law.8 

_________________________________________________________________ 

7. President Roosevelt promulgated regulations in December 1936 

applicable to St. Thomas and St. John. St. Croix had, by then, enacted 

its own property tax law, so it was not subject to these regulations. 

Berne, 120 F. Supp. 2d at 532. 

8. Section 1401a’s "actual value" and uniformity requirements are 

commonly found in state constitutions and statutes. See, e.g., S. Car. 

Const. Art. III, S 29 ("Taxes laid upon actual assessed value."); Co. Const. 

Art. X, S 3 (specifying both uniformity and"actual value" assessment); W. 

Va. Const. Art. X, S 1 ("Subject to the exceptions in this section 

contained, taxation shall be equal and uniform throughout the State, 

and all property, both real and personal, shall be taxed in proportion to 

its value to be ascertained as directed by law."); Pa. Const. Art. VII, S 1 

("Uniformity of Taxation). Thus, this structure does not set Virgin Islands 

property tax law apart from state property tax regimes. The difference is 

that federal law provides a part of the Virgin Islands property tax system 

that is often found within state tax systems. 

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b. 

Plaintiff contends the Government of the Virgin Islands is 

subject to, and in violation of, S 1401a’s requirement that 

"all taxes on real property in the Virgin Islands shall be 

computed on the basis of the actual value of such 
property." (Emphasis added). In response, the government 

argues this section no longer applies because it has been 

superceded by Virgin Islands law. 

The Government of the Virgin Islands contends the 

federal statute was supplanted in 1955 when the Virgin 

Islands Legislature9 passed a real property assessment law, 

including 33 V.I. Code Ann. S 2404, which enumerates the 

factors to be considered in determining "actual value." In 

support, the Government of the Virgin Islands focuses 

primarily on the expiratory language in S 1401b, which 

limits application "until local laws . . . are in effect." 

According to the government, this reveals the temporary 

nature of the 1936 act--whose effect ended with the 

passage of 33 V.I. Code Ann. S 2404. 

But as noted, the expiratory language in S 1401b applies 

only to the specific requirements of that section; it does not 

apply to the rest of the statute, including the general 

requirements of S 1401a. Significantly, S 1401b expressly 

provides that the local measures enacted must also 

"conform[ ] to the requirements of sections 1401 to 1401e." 

A local tax law cannot conform to the requirements of the 

rest of the statute by abrogating it. It is a requirement of 

S 1401a--that the tax be computed on the"actual value" of 

the property--that plaintiff contends the Government of the 

_________________________________________________________________ 

9. The form of government in the Virgin Islands is defined by the Organic 

Act, originally passed by Congress in 1936, and subject to substantial 

revision in 1954, when it became known as the Revised Organic Act, and 

again in 1984. See Estate Thomas Mall, Inc. v. Territorial Court of the V.I., 

923 F.2d 258, 260-61 (3d Cir. 1991); Virgo Corp. v. Paiewonsky, 384 

F.2d 569, 575-76 (3d Cir. 1967). The Revised Organic Act, 48 U.S.C. 

S 1541 et seq., effectively serves as a constitution for the Virgin Islands. 

Callwood v. Enos, 230 F.3d 615, 622 (3d Cir. 2000). The Organic Act 

creates a unicameral legislative body comprised of fifteen senators. 48 

U.S.C. S 1571. The executive branch is governed by an elected governor. 

48 U.S.C. S 1591. 

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Virgin Islands has violated. Accordingly, while 33 V.I. Code 

Ann. S 2404 may have abrogated the regulations prescribed 

by President Roosevelt under S 1401b,10 the language of 

S 1401b does not support the proposition asserted by the 

Government of the Virgin Islands that S 1401a--or its 

"actual value" requirement--has been abrogated. 

c. 

That S 1401a’s federal requirements apply does not end 

our inquiry. The Government of the Virgin Islands contends 

that considerations of federalism support its position that 

real property taxation is a local matter, and that 

notwithstanding 48 U.S.C. S 1401a, property tax disputes 

should be resolved in territorial courts. In other words, the 

Government of the Virgin Islands contends that federal 

courts have no jurisdiction over such disputes. 
The Government of the Virgin Islands argues that 

because real property taxation is a matter generally left to 

the states, courts should be reluctant to find otherwise 

unless Congress has made an unmistakably clear 

statement to that effect. See Pennhurst State Sch. & Hosp. 

v. Halderman, 465 U.S. 89, 99 (1984). But the"clear 

statement" rule does not command the result sought by the 

Government of the Virgin Islands. Congress’s intent to enter 

this area of law suffers from no ambiguity. Furthermore, 

the present case does not fit within the "clear statement" 

framework. It is indisputable that, in 1936, Congress 

entered the field of property taxation in the Virgin Islands. 

The Government of the Virgin Islands’s position is that 

Congress later allowed the Legislature of the Virgin Islands 

to take over. But it would make little sense to require that 

Congress make a clear statement that it is retaining federal 

control it indisputably had over this matter. The"clear 

statement" rule ordinarily applies when Congress seeks to 

change the relationship between federal and state 

governments, not when it maintains the status quo. 

In any event, principles governing the relations between 

_________________________________________________________________ 

10. The Legislature of the Virgin Islands adopted the same 1.25 percent 

tax rate specified in S 1401b. 33 V.I. Code Ann. S 2301. 

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the states and the federal government are not always 

applicable to the territories. The principal reason for this is 

that the Virgin Islands, like all territories, does not share 

with the states the same sovereign independence. See 

Parrott v. Gov’t. of the V.I., 230 F.3d 615, 623 (3d Cir. 2000) 

("[B]oth the Territorial Court and the District Court [of the 

Virgin Islands] derive their respective jurisdictional grants 

from the same sovereign--namely, Congress, exercising its 

authority under Article IV, S 3."); see also United States v. 

Wheeler, 435 U.S. 313, 321 (1978). Thus, the limitations on 

Congress flowing from the residual sovereignty of the states 

do not apply where there is no such dual-sovereignty, as 

when Congress acts under Article IV, section 3, clause 2 of 

the Constitution. 

To be sure, property tax law in the Virgin Islands is, for 

the most part, "local" law, just as it is in the several states. 

See Chase Manhattan Bank, N.A. v. Gov’t of the V.I., 300 

F.3d 320, 323 (3d Cir. 2002) (characterizing property taxes 

as among several "local taxes" in the Virgin Islands). But its 

local character derives from Congress. To the limited extent 

that Congress has entered the field and instituted its own 

substantive requirements, the local character of property 

taxation in the Virgin Islands has been altered. 

The hybrid character of property taxation in the Virgin 

Islands may raise questions about the appropriate 

application of federalism principles in this case even 

assuming the Virgin Islands were accorded the equivalence 
of state sovereignty. "[P]rinciples of federalism and comity 

generally counsel that courts should adopt a hands-off 

approach with respect to state tax administration." Nat’l 

Private Truck Council, Inc. v. Okla. Tax Comm’n, 515 U.S. 

582 (1995). But in this instance, the tax system is not a 

state tax system, nor is it entirely a territorial tax system. 

It is partially a federal tax system, and it is not apparent 

that the federal government should adopt a hands-off 

approach to the federal aspects of a hybrid 

federal/territorial system. 

Furthermore, while the relative jurisdictions of the 

territorial and district courts in the Virgin Islands mirror 

the division of authority between state and Article III 

district courts, this system derives not from the 

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Constitution, but solely from congressional action. Before 

1990, the District Court of the United States Virgin Islands 

had jurisdiction over most local matters, Brow v. Farrelly, 

994 F.2d 1027, 1034 (3d Cir. 1993), including property tax 

disputes, e.g., Ricardo v. Ambrose, 110 F. Supp. 716 (D.V.I. 

1953) (action challenging property tax assessment). In 

1984, Congress vested traditional federal jurisdiction-- 

federal question and diversity--in the district court, and 

permitted the Government of the Virgin Islands to establish 

exclusive jurisdiction in the territorial court over local 

matters. Id. at 1033. In 1990, the Virgin Islands legislature 

divested the district court of jurisdiction over local disputes. 

Id. at 1023. Thus, just as the division of Virgin Islands tax 

law into federal law and territorial law is subject to 

Congress’s determination, so are the relative jurisdictions of 

the territorial and the district courts. Congress chose to 

regulate property taxation in the Virgin Islands and it chose 

to grant jurisdiction to the district court over actions 

arising under federal law. 

At the same time, we believe Congress intended federal 

regulation of Virgin Islands taxes to be limited. The system 

devised by Congress is largely a parallel of state law. 

Congress was not required to treat the Virgin Islands as 

though it were sovereign, but in large measure it has 

chosen to do so. The tax system is, for the most part, a 

matter of local governance. And the territorial courts, 

mirroring state courts, have been given primary jurisdiction 

over local matters. Accordingly, although S 1401a adds a 

significant federal element to the Virgin Islands tax regime, 

it remains a local system--created, enforced, and 

adjudicated locally. While federalism principles do not apply 

directly as a result of the Virgin Islands’ sovereignty, 

sensitivity to the division between federal and territorial 

power in this area seems appropriate, given Congress’s 

choice to treat Virgin Islands law--including its taxation 

regime--with much of the independence of state law. This 

counsels in favor of eschewing a broad interpretation of the 

federal rights created by S 1401a that are justiciable in 

District Court. 
This conclusion is supported by the legislative history of 

S 1401a. In 1936, Congress passed a bill "[t]o establish an 

 10 

 

assessed valuation real property tax in the Virgin Islands of 

the United States" to replace a system viewed as 

encouraging unproductive use of land. S. Rep. No. 74-1973, 

at 1 (1936). At that time, taxes were assessed at a certain 

amount per acre based on the land’s use. Uncultivated land 

was taxed at a low rate, providing an incentive to keep land 

--even very valuable land--unproductive. Id. at 2 (letter of 

Harold L. Ickes, Secretary of the Interior, to Representative 

Leo Kocialkowski (May 24, 1935)). It was thought that 

federal legislation was needed, as the local legislature was 

unlikely to pass a change to a value-based tax system. S. 

Rep. No. 74-1973, at 6 (statement of Lawrence W. Cramer, 

Lieutenant Governor of St. Croix; Robert Herrick, 

Government Secretary, and George S. Robinson, 

Government Attorney). 

Congress took care to enter this area of law only in a 

limited way calculated to require a change in the overall 

system of property taxation to one employing uniform rates 

tied to actual value, but refraining from instituting 

permanent particular requirements. It seems apparent, 

therefore, that the 1936 Act was never intended to change 

the underlying character of property taxation as primarily 

subject to local governance. 

The Government of the Virgin Islands contends that 

plaintiff ’s action is "nothing more than a routine challenge 

of the alleged excessiveness of their year 2000 property tax 

assessment." As such, they contend it is a purely local tax 

question, subject only to territorial court jurisdiction. 

Where this is the case, jurisdiction in the District Court 

is improper. An aggrieved taxpayer does not state a federal 

claim by objecting that its taxes are not based on the actual 

"actual value" of its property. If an assessor arrives at a 

figure greater than what the taxpayer believes to be the 

correct number, the assessor has not necessarily violated 

the requirement that the tax assessment be based on 

actual value. Only if the assessment method does not 

constitute a reasonable attempt to determine the actual 

value can a claim be brought under S 1401a. A challenge to 

the system of tax assessments in federal court may be 

permissible depending on whether it directly implicates 

 11 

 

federal law; an ordinary challenge to an assessment must 

be brought in territorial court. 

Plaintiff here has adequately alleged a violation under 48 

U.S.C. S 1401a. See Growth Horizons, Inc. v. Delaware 

County, 983 F.2d 1277, 1281 (3d Cir. 1993) ("A district 

court has federal question jurisdiction in any case where a 
plaintiff with standing makes a non-frivolous allegation that 

he or she is entitled to relief because the defendant’s 

conduct violated a federal statute."). It contends defendants 

systematically employed a method of assessment not 

calculated to determine the actual value of its properties. 

Because plaintiff ’s claims "arise under"S 1401a, they are 

subject to the jurisdiction of the District Court under 48 

U.S.C. S 1612 and 28 U.S.C. S 1331. 

In this respect, this case is distinguishable from our 

decision in Club Comanche, Inc. v. Gov’t of the V.I., 278 

F.3d 250 (3d Cir. 2002). In an action to quiet title, the 

parties asserted federal jurisdiction because the property 

boundaries were determined, in part, by federal law. 

Notwithstanding that federal law may have had an effect on 

the ultimate resolution of the action, we held it was a 

territorial law claim because it arose under the Virgin 

Islands quiet title statute. Id. at 259-60."A suit arises 

under the law that creates the cause of action." Am. Well 

Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 

(1916). Plaintiff here claims the government violated 

S 1401a. It could do so apart from a territorial cause of 

action to challenge the tax assessments. In this particular 

case, federal law "creates the cause of action." 

d. 

In sum, property taxation in the Virgin Islands is 

governed by a mixture of federal and territorial law. Federal 

law provides general requirements for real property taxation 

in the Virgin Islands. Territorial law and its application 

must be consistent with these federal requirements. 

Because plaintiff has properly alleged a violation of a 

federal requirement, it has stated a federal claim in the 

United States District Court for the District of the Virgin 

Islands. 

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Under Article IV, section 3 of the United States 

Constitution, Congress has the power to regulate taxation 

in the Virgin Islands. In 1936, it did so. Nothing in that 

statute, or in any other act of Congress identified by the 

Government of the Virgin Islands provides a basis to 

disregard the requirements of that statute. 

Because the government has not challenged the District 

Court’s preliminary determination of the merits, we do not 

address what constitutes "actual value" for these purposes, 

nor whether the methods employed by defendants represent 

reasonable means of determining actual value. We also do 

not address the other requirements for issuance of a 

preliminary injunction, as defendants have not taken issue 

with these rulings on appeal. 

Accordingly, we will affirm the District Court’s 

preliminary injunction and remand for further proceedings. 

A True Copy: 
Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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