PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3912

___________

VICTORIA VOOYS, JOSEPH GERACE

d/b/a CANE BAY BEACH BAR

v.

MARIA BENTLEY; CB3, INC.; WARREN MOSLER; 

CHRIS HANLEY; CHRISMOS CANE BAY, LLC

Warren Mosler; Chris Hanley; Chrismos Cane Bay, LLC,

 Petitioners

__________

ON WRIT OF CERTIORARI TO 

THE SUPREME COURT OF THE VIRGIN ISLANDS 

(V.I. S. Ct. Civ. No. 2015-0046)

(V.I. Super. Ct. Civ. No. 2005-00368)

___________

Argued December 12, 2017 before Merits Panel

Argued En Banc February 21, 2018

___________

Before: SMITH, Chief Judge, MCKEE, AMBRO, 

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., 

VANASKIE, SHWARTZ, KRAUSE, RESTREPO, BIBAS, 

and SCIRICA,* Circuit Judges.

(Filed: August 21, 2018)

 

* Participating as a member of the En Banc Court 

Pursuant to 3rd Cir. I.O.P. 9.6.4.
2

Lee J. Rohn, Esq.

Rhea R. Lawrence, Esq. [ARGUED] 

Lee J. Rohn & Associates, LLC

1101 King Street

Christiansted, VI 00820

Counsel for Plaintiffs-Respondents

Stephen L. Braga, Esq. 

Laura Cooley (Third Year Law Student) [ARGUED]

Tanner Russo (Third Year Law Student) [ARGUED]

Alaric Smith (Third Year Law Student)

Cole A. Wogoman (Third Year Law Student)

University of Virginia School of Law

Appellate Litigation Clinic

580 Massie Road

Charlottesville, VA 22903-1789

Counsel for Defendants-Petitioners

Dwyer Arce, Esq. [ARGUED]

Kutak Rock

1650 Farnam Street

The Omaha Building

Omaha, NE 68102

Edward L. Barry, Esq.

Law Offices of Edward L. Barry

2120 Company Street

Christiansted, VI 00820

John-Russell B. Pate, Esq.

The Pate Law Firm

P.O. Box 890

St. Thomas, VI 00804

Counsel for Amicus Curiae Virgin Islands Bar Association

Andrew C. Simpson, Esq.

Andrew C. Simpson Law Offices

2191 Church Street, Suite 5

Christiansted, VI 00820

Counsel for Amicus Curiae Companion Assurance 

Company
3

___________________

OPINION

_________________

McKEE, Circuit Judge

We are asked to grant certiorari review of a decision of 

the Supreme Court of the Virgin Islands that reinstated 

contractual claims that arose from the sale of a bar in the 

islands. The Superior Court of the Virgin Islands dismissed 

the suit in April of 2015 based on Plaintiffs’ failure to post a 

security bond. The Supreme Court of the Virgin Islands 

thereafter reversed that decision and reinstated the suit based 

upon its conclusion that the provision of Virgin Islands law 

allowing a court to order nonresident plaintiffs to post such a 

bond violated the Privileges and Immunities Clause of the U.S. 

Constitution. 

Defendants now ask us to reverse the Supreme Court of 

the Virgin Islands pursuant to our certiorari authority to review 

that court’s final decisions. Congress enacted H.R. 6116 in 

order to revoke that authority for all “cases commenced on or 

after” December 28, 2012.1

 We must decide whether “cases,” 

as used in H.R. 6116, was intended to apply to all suits initiated 

in the Superior Court of the Virgin Islands, the court of original 

jurisdiction, or whether it was intended to apply to appeals 

from final decisions of the Supreme Court of the Virgin Islands 

that were filed on or after that date irrespective of when the suit 

was filed.

We previously addressed this issue in United Industrial 

Service, Transportation, Professional and Government 

Workers of North America Seafarers International Union ex 

rel. Bason v. Government of the Virgin Islands.2

 We have 

 

1 Act of Dec. 28, 2012, Pub. L. No. 112-226, 126 Stat. 

1606 (codified at 48 U.S.C. § 1613 and 28 U.S.C. § 1260) 

[hereinafter H.R. 6116].

2 United Indus., Serv., Transp., Prof’l & Gov’t 

Workers of N. Am. Seafarers Int’l Union ex rel. Bason v. 

Gov’t of the Virgin Islands, 767 F.3d 193 (3d Cir. 2014) 

[hereinafter Bason].
4

granted initial hearing en banc in this matter to revisit the 

jurisdictional issue we decided in Bason. For the reasons set 

forth below, we now conclude that Bason incorrectly 

interpreted H.R. 6116 as referring to suits filed in the Superior 

Court of the Virgin Islands on or after December 28, 2012. We 

now hold that Congress intended for the effective date for H.R. 

6116 to apply to the date an appeal from a final decision of the 

Virgin Islands Supreme Court is filed and not to the date a suit 

is filed in the Superior Court. Since the petition in this matter 

was filed after the effective date of H.R. 6116, we hold that we 

lack jurisdiction to hear this appeal. Accordingly, we will 

dismiss the petition for certiorari review.3

I. BACKGROUND

A. Factual and Procedural History

In 2003, Plaintiffs Joseph Gerace and Victoria Vooys 

purchased Cane Bay Beach Bar, which is situated on the island 

of St. Croix, U.S. Virgin Islands. In 2005, they sued 

Defendants Warren Mosler, Chris Hanley, Chrismos Cane Bay 

LLC, and others in the Superior Court of the Virgin Islands for 

breach of contract and other claims related to the sale of that 

business. Plaintiffs resided in the U.S. Virgin Islands from the 

time they filed their suit until the fall of 2012, when they 

moved to the U.S. mainland. Their suit was still pending when 

they relocated. Upon learning that Plaintiffs were no longer 

Virgin Islands residents, Defendants petitioned the Superior 

Court for an order requiring Plaintiffs to post a security bond 

for potential costs pursuant to title 5, section 547 of the Virgin 

Islands Code.4 That provision allows defendants to demand 

that nonresident plaintiffs post a bond to cover potential costs 

of litigation and allows a court to stay litigation until the bond 

 

3 Although we conclude that we lack jurisdiction to 

review the decision of the Supreme Court of the Virgin 

Islands in this matter, we clearly have jurisdiction to decide 

the underlying question of our jurisdiction. See Chicot Cty. 

Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376 

(1940) (Federal courts have authority “to determine whether 

or not they have jurisdiction to . . . construe and apply the 

statute under which they are asked to act.”).

4 V.I. Code Ann. tit. 5, § 547.
5

is paid.5 The court granted Defendants’ request in April of 

2013 and ordered Plaintiffs to post a bond of $1,050 each 

within thirty days of the order. 

Defendants moved to dismiss after Plaintiffs failed to 

meet that deadline.6

 Plaintiffs vehemently opposed the motion, 

arguing, inter alia, that the Virgin Islands nonresident bond 

provision was unconstitutional. In April 2015—almost three 

years after H.R. 6116 became law—the Superior Court 

rejected Plaintiffs’ challenge to the constitutionality of the 

nonresident bond requirement and dismissed the suit. 

Plaintiffs appealed to the Supreme Court of the Virgin 

Islands. In August 2016, that court reversed the decision of the 

Superior Court and reinstated the complaint. Defendants 

appealed that decision to this Court and we granted certiorari 

review in March of 2017. However, after a panel of this Court 

heard the parties’ arguments on the merits, we issued a sua 

sponte order for initial hearing en banc to reexamine whether 

Congress intended us to retain certiorari jurisdiction over 

appeals filed after the effective date of H.R. 6116.

We now hold that our certiorari jurisdiction to review 

decisions of the Supreme Court of the Virgin Islands does not 

extend to any appeal that was filed on or after the date that H.R. 

6116 became law. Before we discuss the merits of that 

jurisdictional issue, we will place our decision into its 

historical context and explain the evolution of our relationship 

to the Virgin Islands judicial system. 

B. Historical Background

1. Virgin Islands Courts and the Third Circuit’s 

Certiorari Jurisdiction

In 1917, the United States purchased what was then the 

Danish West Indies from Denmark “in exchange for $25 

million in gold and American recognition of Denmark’s claim 

to Greenland.”7

 Judicial oversight of what became the U.S. 

 

5 Id. § 547(a).

6 See id. § 547(d) (enabling court to dismiss an action 

upon nonpayment of bond).

7 Robert M. Jarvis, “A Peculiar Niche”: Admiralty 

Law in the United States Virgin Islands, 26 J. Mar. L. & Com. 

157, 160 (1995); see Convention for Cessation of the Danish 
6

 

West Indies, U.S.-Den., Aug. 4, 1916, 39 Stat. 1706. A series 

of natural, political and social events had made the islands 

much less attractive and less valuable to Denmark. These 

included the introduction of steam vessels that no longer 

needed to “tranship at [St.] Thomas,” a “precipitous fall in 

global sugar prices, . . . droughts, [the] development of the 

sugar beet in Europe, and an unusually large number of 

hurricanes.” Jarvis, supra, at 160. The islands also lost much 

of their commercial value with the end of slavery. “Although 

Denmark banned slavery in 1802 . . . , it was not until July 3, 

1848 that [the Governor-General of the Danish West Indies] 

freed the islands’ slaves” on what is now celebrated in the 

Virgin Islands as Emancipation Day. Id. at 160 n.12.

Yet while the plan to purchase the Virgin Islands was 

formulated in 1916, official acquisition came after a long and 

arduous back-and-forth on the part of the U.S. Government. 

It began with Secretary of State William H. Seward signing a 

treaty with Denmark in 1867 for the purchase of St. Thomas 

and St. John. Id. at 160 n.13. Thereafter, the island of St. 

Thomas was flooded by a “tremendous tidal wave,” “[a] 

terrible earthquake shook it,” and opposition to the islands’ 

acquisition grew “after the ratification of the Alaska purchase, 

[which] added to the avalanche of objections” from Congress. 

Id. However, the Danish Government was now “[s]o 

anxious” to consummate the sale that it was “ready to add the 

remaining island of [St. Croix] at a nominal price.” Id. 

Much discussion, formal and informal, 

finally resulted in the signature of a DanishAmerican treaty (January 24, 1902) for the 

purchase of the islands for $5,000,000. . . . 

[T]he Senate readily ratified the treaty, but the 

upper house of the Danish Parliament rejected it 

by one vote. It was not until 1917 that both 

governments were able to exchange ratifications 

of a treaty of purchase; by then, in the 

atmosphere of war, the price had gone up to the 

exorbitant figure of $25,000,000. 
7

Virgin Islands was promptly assigned to the Court of Appeals 

for the Third Circuit by the Act of March 3, 1917.8

 The 

pertinent provision—consisting of a mere thirty-five words—

provided: “In all cases arising in the . . . West Indian Islands 

and now reviewable by the courts of Denmark, writs of error 

and appeals shall be to the Circuit Court of Appeals for the 

Third Circuit . . . .”9

Now home to a population of around 100,000, the U.S. 

Virgin Islands became an unincorporated American territory in 

1954.10 However, the evolution of the islands’ legal system 

and its relationship to the Third Circuit date back much further 

and are the result of numerous enactments by both the U.S. 

Congress and the Virgin Islands legislature.11

Professor Robert M. Jarvis, who has extensively 

studied the history of the Virgin Islands, has authored a 

detailed explanation for how we obtained jurisdiction over 

 

Id. at 161 n.13 (quoting S. Bemis, A Diplomatic History of the 

United States 399-403, 521 (3d ed. 1950)).

8 Act of March 3, 1917, Pub. L. No. 64-389, ch. 171, § 

2, 39 Stat. 1132, 1133 (current version at 48 U.S.C. § 1392). 

9 Id.

10 Revised Organic Act, Pub. L. No. 83-517, ch. 558, § 

2, 68 Stat. 497 (1954) (codified as amended at 48 U.S.C. § 

1541(a)). An unincorporated territory is one that is not 

nearing statehood and whose subjects do not enjoy full 

constitutional guarantees. Gov’t of Virgin Islands v. Bodle, 

427 F.2d 532, 533 n.1 (3d Cir. 1970). For example, Virgin 

Islands residents are not permitted to vote in presidential 

elections, although they are U.S. citizens. Ballentine v. 

United States, 486 F.3d 806, 811 (3d Cir. 2007). They are 

represented in Congress by a single non-voting delegate. 48 

U.S.C. § 1711.

11 For a thorough history of Virgin Islands governance 

from 1906, while they were still a colony of Denmark, to 

Congress’s enactment of the legislation establishing the 

framework for modern Virgin Islands governance, see the 

opinion of U.S. District Court Judge Thomas K. Moore in 

Ballentine v. United States, No. Civ. 1999-130, 2001 WL 

1242571, at *1-7 (D.V.I. Oct. 15, 2001). 
8

the islands’ courts.12 According to Professor Jarvis, officials 

in the U.S. Bureau of Insular Affairs originally “felt that the 

issue of the USVI appeals should be dealt with after the 

purchase of the islands was complete.”13 The Bureau’s 

Chief, Brigadier General Frank McIntyre, so testified before 

the Foreign Affairs Committee of the U.S. House of 

Representatives in 1917:

The Chairman: What courts have they?

Gen. McIntyre: The courts are very 

simple. In all the higher cases they have now a 

provision for appeal to Denmark. For instance 

 

12 See Jarvis, supra note 6, at 166 n.38. Despite 

numerous inquiries that have been made into the issue, 

Professor Jarvis admits that the “question of why the Third 

Circuit, which sits in Philadelphia, was chosen is one that has 

baffled historians for years.” Id. However, the most probable 

explanation is that Delaware Senator Willard Saulsbury, Jr., 

inserted the language assigning the Virgin Islands to the Third 

Circuit at the last minute. Senator Saulsbury chaired the 

Committee on Coast and Insular Survey as well as the 

Committee on Pacific Islands and Puerto Rico. Id. at 167 

n.38. His “position put him in line to greatly influence the 

final wording of any bill. Accordingly, it is very easy to 

believe that when it came time to decide what to do about 

appeals from the islands[,] Saulsbury was consulted and, as 

[Judge Albert Maris of the Third Circuit] suggests, 

[Saulsbury] recommended the Third Circuit as the best 

alternative available.” Id.

As Professor Jarvis explains, “Saulsbury would have 

been comfortable proposing the Third Circuit,” as “he had 

tried several cases before the court, including a difficult 

admiralty appeal.” Id. In any event, the timing of the 

insertion of the pertinent language—immediately before 

Easter recess—and the brevity of the key provision reinforces 

the argument that Senator Saulsbury could have provided for 

appeals to the Third Circuit with very little fanfare or notice. 

See infra note 17. 

13 Jarvis, supra note 6, at 166 n.38.
9

the sheriff also exercises the office of judge. 

They have very few cases that go to Denmark.

Mr. [William S.] Goodwin [D-Ark.]: Are 

the decrees of the courts in English?

Gen. McIntyre: The records of the courts 

are written in Danish, and one of the difficulties 

is that most of the laws are in Danish. A great 

many of them have not been translated.

The Chairman: It is necessary for us to 

make some provision for appeals?

Gen. McIntyre: I think not, because, I 

think, the proposition is simple, and I think that 

matter can be handled later after there has been a 

study and report on just exactly what you need.

The Chairman: And this bill gives the 

President the necessary authority?

Gen. McIntyre: Yes, sir.14

However, despite General McIntyre’s expressed desire 

to delay resolution of the issue of judicial oversight over the 

newly acquired islands, the move to grant the Court of 

Appeals for the Third Circuit that authority was 

accomplished quickly and by insertion of the above-quoted 

thirty-five words into the legislation.15 The legislation was 

passed less than three weeks after General McIntyre 

testified.16 

 

14 Id. (quoting Cession of Danish West Indian Islands:

Hearings on H.R. 20755 Before the Comm. on Foreign

Affairs, 64th Cong. 33 (1917) (testimony of Brigadier Gen. 

Frank McIntyre, Chief of U.S. Bureau of Insular Affairs)). 

For a thorough discussion of the political structure of the 

Virgin Islands under Danish rule, see Ballentine, 2001 WL 

1242571, at *1-4.

15 Jarvis, supra note 6, at 166 n.38; see Act of March 3, 

1917, ch. 171, § 2, 39 Stat. at 1133 (vesting Third Circuit 

with judicial authority over Virgin Islands cases).

16 Jarvis, supra note 6, at 166 n.38.
10

For Congress, the choice of the Third Circuit may have 

been much less puzzling then than it appears to be today. 

The First Circuit already was supervising Puerto 

Rico. The Second Circuit’s docket was 

overwhelmed with cases from New York. The 

Fourth Circuit, with only two authorized judges, 

had been considered short-handed for years. The 

Fifth Circuit, although geographically the closest 

circuit to the islands, was handling appeals from 

the District Court in the Panama Canal Zone. . . . 

[T]he remaining circuits . . . were simply too 

distant to provide effective oversight. As such, 

Congress probably felt that there was no reason 

to wait for the results of the [study General 

McIntyre suggested be undertaken of the Virgin 

Islands courts] when the conclusion [Congress] 

was likely to draw was already clear.17

Moreover, resolution of the issue was no doubt 

facilitated by the fact that the legislation was introduced on 

the eve of a congressional recess.18 As Professor Jarvis 

explains, “[t]o the extent that Congress considered the matter 

. . . , the Third Circuit probably seemed like the logical 

choice.”19 That choice was likely also informed by 

geographic practicality. With Philadelphia as its seat, judges 

of the Third Circuit could easily travel to the Virgin Islands, 

which in those days could be reached by steamer from 

 

17 Jarvis, supra note 6, at 167 n.38. In addition, the 

Eleventh Circuit did not yet exist. It was not established until 

nearly fifty years later, in 1981. Fifth Circuit Court of 

Appeals Reorganization Act of 1980, Pub. L. No. 96-452, § 2, 

94 Stat. 1994, 1994 (codified as amended at 28 U.S.C. § 41).

18 Jarvis, supra note 6, at 166-67 n.38. The bill to 

assign the Virgin Islands to the Third Circuit came up on 

March 3, 1917, just one day before the adjournment of the 

64th Congress on March 4, 1917. See Act of March 3, 1917, 

ch. 171, § 2, 39 Stat. at 1133. 19 Jarvis, supra note 6, at 166-67 n.38.
11

neighboring New York.20, 21

 

20 Id. at 167 n.38 (citing Interview with Albert B. 

Maris, Circuit Judge, Third Circuit Court of Appeals (Apr. 

18, 1984) (transcript available from the Federal Judicial 

Center)). It is almost certain that there was not great 

competition for authority over any aspect of the Virgin 

Islands. The islands were not easy to reach for most circuit 

courts of appeals and they were not yet economically 

developed. Jarvis, supra note 6, at 168 n.38. “[D]uring the 

early years of American rule[,] conditions actually worsened, 

and in 1928 a devastating hurricane swept over the islands.” 

Id. 

More critically, the judicial system in the Virgin 

Islands was considered to be “archaic.” A Bill to Provide a 

Civil Government for the Virgin Islands, and for Other 

Purposes: Hearings on S. 2786 Before the S. Comm. on 

Territories and Insular Possessions, 68th Cong. 6 (1924) 

[hereinafter 1924 Senate Hearings] (statement of A. A. Berle, 

Jr., Counsel for the Virgin Islands Committee and the Virgin 

Islands branch of the American Federation of Labor). It had 

been based on “an old Danish system, which even the Danes 

were about to revise.” Id. Accordingly, any move by Senator 

Saulsbury to place the judicial oversight of the Virgin Islands 

close to his home state of Delaware would have been met 

with much more apathy than opposition, and perhaps no small 

amount of relief. 

This began to change when Albert B. Maris was 

appointed to the Third Circuit. He “was keenly interested” in 

the Virgin Islands and helped draft the Revised Organic Act, 

which is discussed below. Jarvis, supra note 6, at 168 n.38; 

see infra note 26 and accompanying text. Thereafter, he 

“oversaw the effort to codify the islands’ laws” and 

subsequently received the Virgin Islands Medal of Honor for 

his work improving and modernizing the Virgin Islands legal 

system. Jarvis, supra note 6, at 168 n.38.

The relationship between the Third Circuit and the 

Virgin Islands grew even stronger when President Truman 

appointed William H. Hastie to our Court. Hastie had been 

governor of the Virgin Islands and was thereafter appointed to 
12

 

the District Court of the Virgin Islands. With that 

appointment, he became the first African-American judge of a 

federal district court. When President Truman appointed him 

to the Court of Appeals for the Third Circuit, he then became 

the first African-American judge of a federal circuit court of 

appeals. Given his service as a Virgin Islands governor and 

judge, “Hastie was well aware of the problems faced by the 

islands’ fledgling legal system. Thus, throughout his time on 

the Third Circuit (1949-76), Hastie sought to bring the 

[C]ourt closer to the islands.” Id.

21 Despite the logic of Jarvis’s explanation, it is 

noteworthy that A. Leon Higginbotham, Jr., who was a 

prominent jurist on this Court and a noted legal historian, had 

a different theory. Judge Higginbotham believed the choice 

to assign the Virgin Islands to the Court of Appeals for the 

Third Circuit was largely the result of the hostile political and 

racial climate at the time. In an interview for the Lyndon 

Baines Johnson Library Oral History Project, Judge 

Higginbotham opined that we were assigned jurisdiction over 

the Virgin Islands for “[t]he same reason why you have 

Puerto Rico in the First Circuit, which is Massachusetts.” 

Interview by Joe B. Frantz with A. Leon Higginbotham, 

Circuit Judge, Third Circuit Court of Appeals, in 

Philadelphia, PA (Oct. 7, 1976) (transcript available from the 

Lyndon Baines Johnson Library Oral History Collection at 

http://www.lbjlibrary.net/assets/documents/archives/oral_hist

ories/higginbo/higginbo.pdf). Judge Higginbotham 

explained: 

When the Virgin Islands became a U.S. 

possession it was then 90 per cent non-white, 

about 90 per cent black, and the closest circuit 

to it would be the Fifth, which is Alabama, 

Mississippi, Louisiana, Georgia, Florida, Texas. 

With the degree of hostility between whites and 

blacks it was thought—so I understand, I have 

no documentation of it—that it would be better 

to have them in a different circuit. And I 

believe the same was true of Puerto Rico; the 
13

However, the choice of the Third Circuit was not 

without criticism. Just seven years later, in 1924, A. A. 

Berle, Jr., who was counsel for the Virgin Islands Committee 

and for the Virgin Islands branch of the American Federation 

of Labor, advocated for a different venue in his testimony 

before the Senate Committee on Territories and Insular 

 

Fourth Circuit, which is Virginia, Maryland, 

North Carolina, and maybe also South Carolina, 

or the Fifth were geographically closer.

Id. 

However, when viewed in context with then 

current events, it is not at all certain that legislators 

would have been concerned about the racial 

demographics of the Virgin Islands when deciding 

which Court of Appeals to assign them to. President 

Woodrow Wilson had already begun segregating the 

federal government around the time of the U.S.’s 

annexation of the Virgin Islands. See Kathleen L. 

Wolgemuth, Woodrow Wilson and Federal 

Segregation, 44 J. Negro Hist. 158, 161 (1959) (noting 

that under President Wilson’s administration, “[b]y the 

end of 1913, segregation had been realized in the 

Bureau of Engraving and Printing, the Post Office 

Department, the Office of the Auditor for the Post 

Office, and had even begun in the City Post Office in 

Washington, D.C.”); id. (stating that during Wilson’s 

presidency, “[f]ederal segregation was being enacted 

to keep Negroes and whites apart” while “other steps 

were taken to appoint Negroes only to menial posts or 

to restrict them from obtaining Civil Service jobs”). 

Given this state of affairs, it is at least debatable 

whether elected representatives would have been as 

concerned about subjecting the Virgin Island’s 

predominantly black population to the judicial 

oversight of jurisdictions in the Deep South as Judge 

Higginbotham’s theory assumed. Moreover, as Judge 

Higginbotham conceded, there is little authority or 

documentation to support his view.
14

Possessions of the United States.22 He testified about a 

congressional commission that had made suggestions for the 

structure of the government in the Virgin Islands. 

Specifically, Berle informed the Senate Committee that 

“[t]he commission . . . believes[] that in the revision of the 

judicial system of the islands[,] special attention should be 

given to the establishment of a court of appellate jurisdiction 

more accessible than the present tribunal (United States 

[C]ircuit [C]ourt, [T]hird [Circuit], Philadelphia, Pa.).”23

Yet as we have explained, there was really no realistic 

alternative to the Third Circuit and certainly no closer, more 

practical alternative at the time. The First and Second 

Circuits were even farther away than the Third and, for the 

reasons we have explained, the Fifth Circuit, though closer, 

was simply not a practical choice.24 

Although the United States acquired the Virgin Islands 

in 1917, Congress neglected to organize any civilian 

government there until 1936, when it enacted the Virgin 

Islands Organic Act.25 That Act established a legislative 

body in the Virgin Islands along with municipal councils in 

Charlotte Amalie, St. Thomas and in Christiansted, St. Croix 

(which had been the Danish Capital).26

 

22 1924 Senate Hearings, supra note 19, at 3

(statement of A. A. Berle, Jr.).

23 Id. (parenthetical in original).

24 See Jarvis, supra note 6, at 167 n.38 (discussing 

geographic impracticalities of placing jurisdiction within 

other circuits).

25 Id. at 161; see Organic Act of the Virgin Islands of 

the United States (Virgin Islands Permanent Government 

Act), Pub. L. No. 74-749, ch. 699, 49 Stat. 1807 (1936) 

(codified as amended at 48 U.S.C. § 1405 et seq.). 

26 Jarvis, supra note 6, at 161; Organic Act of the 

Virgin Islands, ch. 699, § 2, 49 Stat. at 1807. Congress had 

initially established only a temporary government on the 

Virgin Islands consisting of “a governor appointed by the 

President . . . with the consent of the Senate, [and providing

that the governor] might be an Army or Navy officer. As a 

matter of custom, [the governor was] always . . . a naval 
15

However, most of the more intricate details of Virgin 

Islands governance were not resolved until Congress passed a 

Revised Organic Act in 1954.27 That Act “laid the groundwork 

for the current Virgin Islands court system,” including its “trial 

courts and an appellate court.”28 In particular, it established 

the District Court of the Virgin Islands as an Article IV court29 

with “jurisdiction over federal questions, regardless of the 

amount in controversy, and general original jurisdiction over 

questions of local law, subject to the exclusive jurisdiction of 

 

officer, but he was not technically responsible to the Navy . . . 

nor was he technically responsible to any department of the 

Government.” 1924 Senate Hearings, supra note 19, at 3-4 

(statement of A. A. Berle, Jr.).

27 Revised Organic Act of the Virgin Islands, Pub. L. 

No. 83-517, ch. 558, 68 Stat. 497 (1954) (codified as 

amended at 48 U.S.C. § 1541 et seq.).

28 Defoe v. Phillip, 702 F.3d 735, 738 (3d Cir. 2012); 

see Revised Organic Act, ch. 558, §§ 21-26, 68 Stat. at 506-

07. A. A. Berle described the difficulties with the Virgin 

Islands judicial system, as initially constructed following 

acquisition from Denmark, in his testimony before the Senate 

Committee on Territories and Insular Possessions in 1924: 

[T]he system is archaic; it is an old Danish 

system, which even the Danes were about to 

revise, and one of the particular difficulties of 

which the islands bitterly complain lies in the 

fact that a man is judged by a police officer, 

who corresponds roughly with our district 

attorney; and when he comes up for final trial, 

this same judge-district attorney prosecutes him.

1924 Senate Hearings, supra note 19, at 6 (statement of A. A. 

Berle, Jr.). 

29 Article IV, Section 3 of the United States 

Constitution states, in relevant part: “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.” U.S. Const. art. IV, § 3, cl. 2.
16

the local courts over civil actions where the amount in 

controversy was less than $500”30 and over criminal actions 

where the maximum punishment was a fine of $100, 

imprisonment for six months, or both.31 Finally, the Revised 

Organic Act established the District Court of the Virgin Islands 

as an appellate court charged with reviewing the judgments and 

orders of the local Virgin Islands courts.32

Pursuant to a series of amendments to the Revised 

Organic Act in 1984 (the “1984 Amendments”), the appellate 

role of the District Court expanded. One such amendment 

created an Appellate Division of the Virgin Islands District 

Court, which would appoint three-judge panels to hear appeals 

 

30 Moravian Sch. Advisory Bd. of St. Thomas, V.I. v. 

Rawlins, 70 F.3d 270, 272 (3d Cir. 1995); see Revised 

Organic Act, ch. 558, §§ 22-23, 68 Stat. at 506.

31 Revised Organic Act, ch. 558, §§ 22-23, 68 Stat. at 

506. Under the Revised Organic Act, the local Virgin Islands 

courts also maintained exclusive original jurisdiction over “all 

violations of police and executive regulations.” Id. at ch. 558, 

§ 23.

32 Id. at ch. 558, § 22. As originally constituted, judges 

of the District Court of the Virgin Islands were appointed by 

the governor, who retained the right to remove them, and 

apparently did so at will. 1924 Senate Hearings, supra note 

19, at 6 (statement of A. A. Berle, Jr., Counsel for the Virgin 

Islands Committee). See United States v. Malmin, 272 F. 785, 

792 (3d Cir. 1921), wherein this Court granted a writ of 

mandamus to restore the position of Judge Lucius J. M. 

Malmin, a district court judge in the Virgin Islands who had 

been removed by the governor. The governor had appointed 

the judge pursuant to a provision of the Colonial Code of the 

Municipality of St. Croix. Id. at 787-88. However, the 

provision granting the governor that power was set aside in 

1920 by President Woodrow Wilson. Id. at 788. Shortly 

following that repeal, the governor nevertheless removed 

Judge Malmin from the bench and appointed a successor. Id. 

We issued a writ ordering Judge Malmin’s reinstatement to the 

bench and removing the judge whom the governor had 

appointed to replace him. Id. at 792.
17

from local courts.33 Final decisions of the Appellate Division 

could then be appealed to the Court of Appeals for the Third 

Circuit as a matter of right.34

The 1984 Amendments also provided a mechanism that 

allowed the Virgin Islands legislature to substantially alter this 

basic framework. The Amendments granted that legislature 

power to “divest the District Court of original jurisdiction for 

local matters by vesting that jurisdiction in territorial courts 

established by local law for all causes for which ‘any court 

established by the Constitution and laws of the United States 

does not have exclusive jurisdiction.’”35 The 1984 

Amendments thus laid the groundwork for a “dual system of 

local and federal judicial review in the Virgin Islands,” 

 

33 See Act of Oct. 5, 1984, Pub. L. No. 98-454, title 

VII, § 705, 98 Stat. 1732, 1739 [hereinafter 1984 Amendment 

to Revised Organic Act] (codified at 48 U.S.C. § 1613a(a)) 

(“Prior to the establishment of [local Virgin Islands] appellate 

court[s] . . . , the District Court of the Virgin Islands shall 

have such appellate jurisdiction over the courts of the Virgin 

Islands established by local law to the extent now or hereafter 

prescribed by local law . . . .”); id. (codified at 48 U.S.C. § 

1613a(b)) (“Appeals to the District Court of the Virgin 

Islands shall be heard and determined by an appellate division 

of the court consisting of three judges, of whom two shall 

constitute a quorum.”).

34 Id. at title VII, § 705, 98 Stat. at 1740 (codified at 48 

U.S.C. § 1613a(c)) (“The United States Court of Appeals for 

the Third Circuit shall have jurisdiction of appeals from all 

final decisions of the district court on appeal from the courts 

established by local law.”).

35 Parrott v. Gov’t of the Virgin Islands, 230 F.3d 615, 

619 (3d Cir. 2000) (quoting 48 U.S.C. § 1611(b)); see 1984 

Amendment to Revised Organic Act, title VII, § 702, 98 Stat. 

at 1737 (codified at 48 U.S.C. § 1611(b) (1984)) (“The 

legislature of the Virgin Islands may vest in the courts of the 

Virgin Islands established by local law jurisdiction over all 

causes in the Virgin Islands over which any court established 

by the Constitution and laws of the United States does not 

have exclusive jurisdiction.”).
18

whereby the Virgin Islands courts could expand their original 

jurisdiction over both criminal and civil matters.36 By 1991, 

the Virgin Islands had “exercised that power, vesting exclusive 

jurisdiction over local [civil] actions in the Territorial Court of 

the Virgin Islands—now known as the Superior Court of the 

Virgin Islands.”37 Thereafter, “the District Court continued to 

hear appeals from local trial courts, and it retained concurrent 

jurisdiction over local crimes that are similar to federal 

crimes.”38

This concurrent jurisdiction ended in 1994 when the 

Virgin Islands legislature vested exclusive jurisdiction over all 

local crimes with the Superior Court of the Virgin Islands.39 

That court thus became the initial, exclusive arbiter of both 

local criminal and civil actions.

The District Court of the Virgin Islands continued to 

serve an appellate function until 2004, when the Virgin Islands 

legislature exercised the authority Congress had given it in the 

Revised Organic Act to establish the Supreme Court of the 

 

36 Parrott, 230 F.3d at 619.

37 Defoe, 702 F.3d at 738; see Act of Sept. 5, 1990, No. 

5594, § 1, 1990 V.I. Sess. Laws 271 (codified as amended at 

V.I. Code Ann. tit. 4, § 76(a)) (granting the Superior Court of 

the Virgin Islands “original jurisdiction in all civil actions 

regardless of the amount in controversy” and thus divesting 

the District Court of the Virgin Islands original jurisdiction 

over purely local civil matters); 1984 Amendment to Revised 

Organic Act, title VII, § 703, 98 Stat. at 1738 (“[T]he District 

Court of the Virgin Islands shall have general original 

jurisdiction in all causes in the Virgin Islands the jurisdiction 

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

of the Virgin Islands . . . .”). 

38 Defoe, 702 F.3d at 738. 

39 Act of Sept. 30, 1993, No. 5890, § 1, 1993 V.I. Sess. 

Laws 214 (codified as amended at V.I. Code Ann. tit. 4, § 

76(b)); see 1984 Amendment to Revised Organic Act, title 

VII, § 702, 98 Stat. at 1737 (codified at 48 U.S.C. § 1611(b) 

(1984)). 
19

Virgin Islands.40 The creation of that court “altered the 

relationship between the federal judiciary and the Virgin 

Islands court system.”41 In addition to ending the federal 

district court’s appellate jurisdiction over local decisions,42 the 

establishment of the Supreme Court of the Virgin Islands gave 

rise to our certiorari jurisdiction over final decisions of that 

court pursuant to the 1984 Amendments to the Revised

Organic Act, as codified in 48 U.S.C. § 1613.43 It also 

provided for a mechanism for the termination of that certiorari 

jurisdiction. We explained this in Pichardo v. Virgin Islands 

Commissioner of Labor:

[U]nder the terms of the Revised Organic Act, 

for the first fifteen years after the establishment 

of the Virgin Islands Supreme Court, [the 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.”44

[The Act] also requires our Court to submit 

reports to Congress regarding whether the 

Supreme Court of the Virgin Islands has 

“developed sufficient institutional traditions to 

 

40 See Act of Oct. 29, 2004, No. 6687, § 1, 2004 V.I. 

Sess. Laws 179 (codified as amended at V.I. Code Ann. tit. 4, 

§ 2(a)) (designating the Supreme Court of the Virgin Islands 

as the “court of last resort” pursuant to the power Congress 

granted the Virgin Islands legislature under section 21(b) of 

the Revised Organic Act). 

41 Defoe, 702 F.3d at 739.

42 See 48 U.S.C. § 1613a(a) (setting forth that the 

District Court’s appellate jurisdiction ends once the Virgin 

Islands legislature creates its own appellate court).

43 48 U.S.C. § 1613 (1994), amended by 48 U.S.C. § 

1613 (2012); 1984 Amendment to the Revised Organic Act, 

title VII, § 704, 98 Stat. at 1739. 

44 48 U.S.C. § 1613 (1994 version). 
20

justify direct review by the Supreme Court of the 

United States from all such final decisions.”45

Thus, Congress included an interim reporting obligation 

in recognition of the possibility that the new Supreme Court of 

the Virgin Islands “might develop sufficient institutional 

traditions [to replace our certiorari review with certiorari 

review by the U.S. Supreme Court] before the fifteen-year 

mark.”46 

The rate of maturation and sophistication of the 

Supreme Court of the Virgin Islands is noted in our 2012 

opinion in Banks v. International Rental & Leasing Corp.

(which predated H.R. 6116).47 There, we certified a 

controlling question of Virgin Islands law to the Supreme 

Court of the Virgin Islands pursuant to rules that court had 

adopted to advise us on questions of local law when 

appropriate.48 We did so because “the United States Supreme 

Court has encouraged federal appellate courts to seek guidance 

from the highest court of the appropriate jurisdiction if that 

court has adopted procedures for accepting certified questions 

of law.”49 In relying on the resulting opinion of the Supreme 

Court of the Virgin Islands to resolve the issue before us, we 

 

45 Pichardo v. Virgin Islands Comm’r of Labor, 613 

F.3d 87, 94 (3d Cir. 2010) (quoting 48 U.S.C. § 1613 (1994 

version)).

46 Kendall v. Daily News Pub. Co., 716 F.3d 82, 86 (3d 

Cir. 2013) (Kendall I); see Defoe, 702 F.3d at 739-40 

(discussing 2012 interim report).

47 680 F.3d 296 (3d Cir. 2012). 48 Id. at 298-99; see V.I. Sup. Ct. R. 38(a) (“The 

Supreme Court of the Virgin Islands may answer questions of 

law certified to it by a court of the United States . . . if there is 

involved in any proceeding before the certifying court a 

question of law which may be determinative of the cause then 

pending in the certifying court and concerning which it 

appears there is no controlling precedent in the decisions of 

the Supreme Court.”).

49 Banks, 680 F.3d at 298.
21

commented that the opinion was “commendably thorough and 

very well reasoned.”50

2. Repeal of the Third Circuit’s Certiorari Jurisdiction

Pursuant to our obligation to periodically assess its 

development and maturation, our prior Chief Judge appointed 

a committee to undertake an in-depth inquiry into the progress 

and jurisprudence of the Supreme Court of the Virgin Islands.51 

In 2012, that committee issued a glowing assessment. It 

unanimously concluded that the Supreme Court of the Virgin 

Islands had demonstrated “sufficient institutional traditions to 

justify direct review by the Supreme Court of the United 

States.”52 Accordingly, the committee recommended that 

Congress eliminate our certiorari jurisdiction in favor of direct 

review by the U.S. Supreme Court.53 

Congress quickly acted upon our recommendation. 

That same year, it passed H.R. 6116, which (as we noted at the 

outset) replaced our certiorari jurisdiction with direct U.S. 

Supreme Court certiorari review of “cases commenced on or 

after” the statute’s effective date of December 28, 2012.54 

More specifically, in section 3 of H.R. 6116, Congress 

specified an “EFFECTIVE DATE” for the repeal of our 

jurisdiction as follows: “The amendments made by this Act 

 

50 Id. at 299.

51 Letter from D. Brooks Smith, Circuit Judge, Third 

Circuit Court of Appeals, to Theodore A. McKee, Chief 

Circuit Judge 1 (April 18, 2012), 

http://www.visupremecourt.org/wfData/files/BookletReportof

VirginIslandsSupremeCourt.pdf.

52 Judicial Council of the U.S. Court of Appeals for the 

Third Circuit, Report on the Virgin Islands Supreme Court 

17, 23 (2012) [hereinafter Third Circuit Judicial Council 

Report], 

http://www.visupremecourt.org/wfData/files/BookletReportof

VirginIslandsSupremeCourt.pdf.

53 Id. at 17, 23. Indeed, we later noted that the 

Supreme Court of the Virgin Islands “passed that test with 

flying colors.” Kendall I, 716 F.3d at 86.

54 H.R. 6116, 126 Stat. at 1606-07. 
22

apply to cases commenced on or after the date of the enactment 

of this Act.”55

Thus, as we have already explained, we must now 

decide if “cases commenced on or after the date of the 

enactment” refers to all cases filed in the Virgin Islands courts 

on or after the enactment of H.R. 6116 (as we held in Bason) 

or only to appeals from final decisions of the Supreme Court 

of the Virgin Islands that were commenced on or after that date. 

II. DISCUSSION

“The doctrine of stare decisis is . . . ‘essential to the 

respect accorded to the judgments of . . . [c]ourt[s] and to the 

stability of the law.’”56 Thus, we do not lightly revisit an issue 

that a panel of this Court has already decided in a precedential 

opinion. Nevertheless, Federal Appellate Procedure Rule 35 

appropriately allows courts of appeals to grant en banc 

(re)hearing to reconsider prior precedential decisions when a 

case “involves a question of exceptional importance.”57

Thus, stare decisis “does not compel us to follow a past 

decision when its rationale no longer withstands ‘careful 

analysis.’”58 “If [our] precedent’s reasoning was clearly 

wrong, then stare decisis loses some (though not all) of its 

force.”59 Indeed, en banc review serves a very important 

institutional purpose for just that reason. It provides a vehicle 

by which we can revisit prior decisions when appropriate.

Here, we have decided not only to revisit an issue we 

have already resolved in a precedential decision, but also to 

grant an initial en banc hearing on that issue without awaiting 

a panel decision. 

Initial en banc hearing is extraordinary; it 

is ordered only when a majority of the active 

judges who are not disqualified, determines that 

 

55 Id. at § 3, 126 Stat. at 1607. 

56 Arizona v. Gant, 556 U.S. 332, 348 (2009) (quoting 

Lawrence v. Texas, 539 U.S. 558, 577 (2003)). 

57 Fed. R. App. P. 35(a)(2).

58 Gant, 556 U.S. at 348 (quoting Lawrence, 539 U.S. 

at 577).

59 Morrow v. Balaski, 719 F.3d 160, 180 (3d Cir. 2013) 

(en banc) (Smith, J., concurring) as amended (June 14, 2013).
23

the case is controlled by a prior decision of the 

court which should be reconsidered and the case 

is of such immediate importance that exigent 

circumstances require initial consideration by the 

full court.60

We have concluded that this case presents such a question and 

that exigent circumstances warranted initial en banc review. 

Given the important role this Court has played in the 

evolution of the judicial system of the Virgin Islands, the very 

important institutional issues implicated by the revocation of 

our certiorari jurisdiction, and the impact our decision will 

have on thousands of pending cases in the courts of the Virgin 

Islands, we believe that exigent circumstances justified initial 

en banc review here. 

As we have noted, we first decided the issue we revisit 

today in Bason, a decision we issued shortly after H.R. 6116 

became law. The “threshold question[]” there was “whether 

[the Court of Appeals for the Third Circuit] retain[s] certiorari 

jurisdiction over proceedings that were filed in the Virgin 

Islands courts before the date of enactment of H.R. 6116.”61 

More precisely, we defined the issue as “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.”62 

We concluded that “cases commenced,” as used in H.R. 

6116, encompassed initial “proceedings filed in the Virgin 

Islands courts,” e.g., complaints filed in the Superior Court of 

the Virgin Islands.63 Our conclusion rested on the traditional 

understanding that a case is “commenced when it is first 

brought in an appropriate court.”64 We reasoned that had 

Congress “indeed meant to strip this Court of certiorari 

 

60 3d Cir. I.O.P. 9.2 (2018) (emphasis added).

61 Bason, 767 F.3d at 201.

62 Id. at 205-06 (quoting Kendall I, 716 F.3d at 87).

63 Id. at 206. 

64 Id. (internal quotation marks omitted) (citing 

Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1094 (10th Cir. 

2005)) 
24

jurisdiction over proceedings already filed in the Virgin Islands 

courts before the enactment date of the legislation,” it would 

have used clearer language to do so, just as it did when it 

divested the Court of Appeals for the First Circuit of its 

jurisdiction over final decisions of the Supreme Court of Puerto 

Rico.65 

Shortly after Bason, we briefly addressed the same 

jurisdictional question in Fahie v. Virgin Islands.66 Like 

Bason, Fahie came to us on a writ of certiorari to the Supreme 

Court of the Virgin Islands.67 In addition to the briefing 

provided by the parties there, the Virgin Islands Bar 

Association filed an amicus brief “challenging our jurisdiction 

to consider th[e] matter at all.”68 The jurisdictional issue 

identified in Fahie was identical to the one that is now before 

this en banc Court:

The operative question [was] whether [H.R. 

6116] revokes jurisdiction over cases 

commenced in the Superior Court on or after 

December 28, 2012, or whether the law only 

revokes jurisdiction over cases that have 

commenced in our Court (through a petition for 

writ of certiorari) on or after that date.69

That question was key because “the case against Fahie 

commenced in the Superior Court in November 2011, but was 

 

65 Id. at 206-07; see Act of Aug. 30, 1961, Pub. L. No. 

87-189, § 3, 75 Stat. 417 (1961) (current version at 28 U.S.C. 

§ 1258) (specifying that the repeal of jurisdiction of the First 

Circuit Court of Appeals over cases from the Supreme Court 

of Puerto Rico “shall not deprive the Court of Appeals for the 

First Circuit of jurisdiction to hear and determine appeals 

taken to that court . . . before the effective date of this Act”); 

see also discussion infra, Part II.B.2.

66 858 F.3d 162 (3d Cir. 2017).

67 Id. at 164.

68 Id.

69 Id. at 167.
25

not the subject of a petition [for certiorari] to us until 2016,” 

four years after H.R. 6116 became law.70 

As in Bason, we began our jurisdictional analysis in 

Fahie by noting that the Revised Organic Act had given us, 

“for a limited time, certiorari jurisdiction over all final 

decisions of the highest court of the Virgin Islands from which 

a decision could be had.”71 But we explained that Bason had 

already decided that “cases commenced” referred to “all cases 

commenced in the Superior Court [on or] after December 28, 

2012.”72 In a footnote that foreshadowed this appeal, we added 

that “[e]ven if we were to agree that Bason was wrongly 

decided, we are not at liberty to overturn the holding without 

en banc review because it is not dicta.”73 

A. The Meaning of “Cases Commenced”

H.R. 6116 did not define “cases commenced.” Bason

therefore focused on the need to construe undefined terms in a 

 

70 Id. at 168.

71 Id. at 167 (citing 48 U.S.C. § 1613 (1994 version)); 

see 1984 Amendment to Revised Organic Act, title VII, § 704, 

98 Stat. at 1739.

72 Fahie, 858 F.3d at 168.

73 Id. at 168 n.8. In Hodge v. Bluebeard’s Castle, Inc., 

62 V.I. 671 (V.I. 2015), a 2015 opinion written by Justice 

Maria M. Cabret, the Supreme Court of the Virgin Islands 

suggested similar reservations about the result we reached in 

Bason. There, the court observed: 

President Barack Obama signed H.R. 6116 into 

law, ending the Third Circuit’s certiorari 

jurisdiction 10 years early. Despite this, the 

Third Circuit recently held that the effective 

date of this legislation . . . referenced the date a 

case was commenced by filing a complaint in 

the Superior Court of the Virgin Islands, as 

opposed to the date a case is commenced in the 

Third Circuit seeking a writ of certiorari to the 

Supreme Court of the Virgin Islands. 

Id. at 689 n.10 (citing Bason, 767 F.3d at 206). 
26

statute “in accordance with [their] ordinary or natural 

meaning.”74 In doing so, we first pointed to precedent from the 

U.S. Supreme Court and several of our sister circuit courts of 

appeals and observed that “[t]he term ‘case’ has generally been 

understood to include judicial proceedings of any kind.”75 We 

then equated “cause” with “case,” noting that they “are 

constantly used as synonyms in statutes . . . , each meaning a 

proceeding in court, a suit, or action.”76 Accordingly, we 

deduced that “cases commenced” in H.R. 6116 referred to 

“case[s] or cause[s] of action . . . ‘when [they are] first brought 

in an appropriate court.’”77 

In conducting our analysis, we acknowledged the 

Virgin Islands government’s argument that, based on U.S. 

Supreme Court precedent as well as “the alleged purpose” of 

H.R. 6116, the phrase “cases commenced” should be defined 

as the filing of a certiorari petition.78 However, we dismissed 

that argument without much discussion.79 Yet as the U.S. 

Supreme Court has instructed, “[i]t is contrary to the spirit of 

 

74 United States v. Brown, 740 F.3d 145, 149 (3d Cir. 

2014) (quoting FDIC v. Meyer, 510 U.S. 471, 476 (1994)), 

cited with approval by Bason, 767 F.3d at 206.

75 Bason, 767 F.3d at 206 (emphasis added).

76 Id. (quoting Hohn v. United States, 524 U.S. 236, 

241 (1998)) (ellipsis in original) (internal quotations omitted).

77 Id. (citing Pritchett, 420 F.3d at 1094); 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.”).

78 Bason, 767 F.3d at 206.

79 See id. at 209 (declining to find the U.S. Supreme 

Court’s decision in Slack v. McDaniel, 529 U.S. 473 (2000),

controlling because Slack “did not discuss whether there may 

be a meaningful difference between . . . an open-ended and 

unmodified provision [like H.R. 6116] and a provision that 

refers, for instance, to ‘appellate cases commenced’”); id. at 

209 (distinguishing Slack because, unlike H.R. 6116, the 

habeas provisions at issue there “did not divest one court of 

its jurisdiction and confer such jurisdiction on another 

court”).
27

the . . . law itself to apply a rule founded on a particular reason 

to a case where that reason utterly fails.”80 Our reliance on the 

generally accepted meaning of “cases” rather than focusing on 

the reason the legislation was enacted or the specific context in 

which the word was used in H.R. 6116, resulted in our adopting 

a definition that was not sufficiently tethered to, or informed 

by, congressional purpose. 

We now conclude that the decision of the U.S. Supreme 

Court in Slack v. McDaniel should have more sharply focused 

and guided our inquiry in Bason. In Slack, the Court had to 

decide whether a provision of the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA)81 amending 28 U.S.C. § 

2253, a habeas corpus statute, applied to a request for a 

“Certificate of Appeal” (COA) from a district court’s denial of 

a habeas petition.82 The Court noted that it had already held in 

1997 in Lindh v. Murphy83 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.”84 Slack argued that the relevant AEDPA 

provision did not apply to him because his habeas petition had 

been “commenced in the [d]istrict [c]ourt pre-AEDPA,” i.e., 

before AEDPA imposed new requirements for habeas 

petitions.85 The Court disagreed. It held that AEDPA did 

apply because Slack had filed his COA request after AEDPA 

was enacted.86 The analysis turned on the fact that the 

provision Slack’s argument relied upon pertained to 

“proceedings in the district courts while [28 U.S.C. § 2253, the 

 

80 Patton v. United States, 281 U.S. 276, 306 (1930) 

(quoting Reno Smelting Works v. Stevenson, 21 P. 317, 320 

(Nev. 1889), abrogated on other grounds by Williams v. 

Florida, 399 U.S. 78 (1970).

81 28 U.S.C. § 2253(c) (1994 ed., Supp. III).

82 Slack, 529 U.S. at 481.

83 521 U.S. 320 (1997).

84 Slack, 529 U.S. at 481 (citing Lindh, 521 U.S. at 

327).

85 Id.

86 Id. at 482.
28

controlling provision, was] directed to proceedings in the 

appellate courts.”87

Slack thus informs our resolution of the meaning of 

“cases commenced” in H.R. 6116. As the Court there 

explained, “[w]hen Congress instructs . . . 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.”88 The Court further explained that 

“[w]hile an appeal is a continuation of the litigation started in 

the trial court, it is a distinct step. We have described 

proceedings in the courts of appeals as ‘appellate cases.’ 

Under AEDPA, an appellate case is commenced when the 

application for a COA is filed.”89 

Similarly, H.R. 6116 was enacted to address certiorari 

review of decisions of the Supreme Court of the Virgin 

Islands. 90 The interpretation of “cases commenced” in H.R. 

6116 must therefore focus on appellate cases—cases on 

certiorari review. Our analysis in Bason was unduly 

influenced by reliance on trial-level cases and trial-level 

process.91 The resulting conclusion was insufficiently 

 

87 Id. at 481.

88 Id. at 482.

89 Id. at 481-82 (citations omitted).

90 Cf. Bason, 767 F.3d at 209 (“[B]ecause [H.R. 6116] 

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.”). 

91 See id. at 207. This portion of Bason cited, for 

example, the provision vesting federal district courts with 

supplementary jurisdiction in the Judicial Improvements Act 

of 1990, Pub. L. No. 101-650, title III, § 310, 104 Stat. 5089, 

5114 (codified at 28 U.S.C. § 1367) (“The amendments made 

by this section shall apply to civil actions commenced on or 

after the date of the enactment of this Act.” (emphasis 

added)); the removal jurisdiction provision of the Judicial 

Improvements Act of 1985, Pub. L. No. 99-336, § 3(b), 100 

Stat. 633, 637 (1986) (codified as amended at 28 U.S.C. § 

1441) (“The amendment made by this section shall apply with 

respect to claims in civil actions commenced in State courts 
29

informed by the legislative purpose of H.R. 6116 and thus 

inconsistent with the U.S. Supreme Court’s analysis in Slack.92 

B. Similar Jurisdictional Repeals

Interpreting “cases commenced” in H.R. 6116 as the 

filing of a petition for certiorari review, as opposed to the filing 

of a complaint, is consistent with Congress’s termination of the 

certiorari jurisdiction other circuit courts of appeals 

temporarily had over the supreme courts of other U.S. 

territories. 

1. Guam

Congress gave the Court of Appeals for the Ninth 

Circuit temporary jurisdiction over appeals from the Supreme 

Court of Guam in 1984.93 The relevant statute provided: 

[F]or the first fifteen years following the 

establishment of the [Supreme Court of Guam], 

 

on or after the date of the enactment of this section.” 

(emphasis added)); and the provision governing the district 

courts’ removal jurisdiction and interlocutory appeals in class 

action proceedings in the Class Action Fairness Act of 2005, 

Pub. L. No. 109-2, § 9, 119 Stat. 4, 14 (codified as amended 

at 28 U.S.C. § 1332) (“The amendments made by this Act 

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

of enactment of this Act.” (emphasis added)). Bason, 767 

F.3d at 207. 92 We emphasize that our analysis here is not intended 

to necessarily provide guidance on statutes other than H.R. 

6116. This includes, but is not limited to, those analogous 

provisions in the Antiterrorism and Effective Death Penalty 

Act of 1996, codified as amended in scattered sections of 8 

U.S.C., 18 U.S.C., 22 U.S.C., 28 U.S.C., and 34 U.S.C.; the 

Federal Rules of Appellate Procedure; the Third Circuit 

Local Rules; the Third Circuit Internal Operating 

Procedures; the Federal Rules of Civil Procedure; and 

district-level statutes, such as those embodied in the Class 

Action Fairness Act, codified at 28 U.S.C. §§ 1453 and 

1711-1715. 93 Act of Oct. 5, 1984, Pub. L. No. 98-454, title VIII, § 

801, 98 Stat. 1732, 1742 (current version at 48 U.S.C. § 1424-

2).
30

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 Council of the Ninth Circuit 

shall submit reports to the Committee on Energy 

and Natural Resources of the Senate and the 

Committee on Interior and Insular Affairs 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.94

Thus, like our own jurisdiction over the Supreme Court of the 

Virgin Islands, certiorari jurisdiction of the Court of Appeals 

for the Ninth Circuit over the Supreme Court of Guam was 

meant to sunset after fifteen years or until the judicial council 

of that circuit determined that Guam had “developed sufficient 

institutional traditions to justify direct review by the [U.S.] 

Supreme Court.”95

Yet in 2004, before the expiration of fifteen years, 

Congress amended the law to revoke the jurisdiction of the 

Court of Appeals for the Ninth Circuit, just as it revoked our 

certiorari jurisdiction in H.R. 6116.96 However, in contrast to 

H.R. 6116, in the case of Guam, Congress failed to provide an 

effective date for the legislation rescinding certiorari 

jurisdiction. The amendment simply struck language that had 

authorized the Court of Appeals for the Ninth Circuit to 

exercise certiorari review over final decisions of the Supreme 

Court of Guam:

 

94 Id.

95 Id.

96 See Act of Oct. 30, 2004, Pub. L. No. 108-378, § 2, 

118 Stat. 2206, 2208 (current version at 48 U.S.C. § 1424-2)

(striking language in § 1424-2 regarding certiorari jurisdiction 

of the Court of Appeals for the Ninth Circuit).
31

Section 22B of the Organic Act of Guam 

(48 U.S.C. 1424–2) is amended by striking 

“: Provided, That [for the first fifteen years 

following the establishment of the appellate 

court authorized by section 22A(a) of this Act, 

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. . . .97]” and all that follows through the end 

and inserting a period. 98

The Court of Appeals for the Ninth Circuit had to 

interpret the scope of that repeal just two years later in Santos 

v. Guam.

99 There, a certiorari petition had been filed, 

calendared, and argued in the Ninth Circuit prior to the 

repeal.100 The court therefore had to determine “whether the 

jurisdiction previously granted [to the Court of Appeals for the 

Ninth Circuit], and existing at the time certiorari was granted, 

. . . evaporated upon the enactment date of the repeal, or . . . 

continued to exist until the pending appeal could be 

decided.”101 

As the Court of Appeals explained, “Congress [had] 

amended the distribution of appellate jurisdiction in the 

Territory of Guam without expressing an intent as to the 

effective date of its new statute.”102 In resolving the issue, the 

court looked to the U.S. Supreme Court’s 1952 ruling in 

Bruner v. United States.

103 The court read that case to explain 

that “when a jurisdictional statute under which an action had 

been properly filed was repealed, without any reservation as to 

 

97 Act of Oct. 5, 1984, title VIII, § 801, 98 Stat. at 

1742.

98 Act of Oct. 30, 2004, § 2, 118 Stat. at 2208.

99 436 F.3d 1051 (9th Cir. 2006).

100 Id. at 1052.

101 Id.

102 Id. at 1053.

103 343 U.S. 112 (1952).
32

pending cases, all such pending cases were to be dismissed.”104 

Because there was “no principled distinction between Bruner’s 

jurisdiction-withdrawing statute” and the one revoking 

certiorari authority over appeals from the Supreme Court of 

Guam, the court reasoned that Congress must have intended 

the revocation of jurisdiction to apply to all cases as soon as it 

became law.105 Accordingly, the court concluded “Congress 

had taken away [its] power to hear” and “to decide the case.”106

Thus, to the extent it is relevant to our inquiry, Santos counsels 

in favor of broadly interpreting jurisdictional repeals that do 

not contain a savings clause.

This case, is of course, different because Congress did

specify the date that H.R. 6116 was to become effective: 

December 28, 2012.107 Defendants thus argue that “Congress 

uses specific language to exempt cases already filed in the 

appellate court divested of jurisdiction.”108 They suggest that 

since the appeals process for this case began in the Virgin 

Islands courts before H.R. 6116 became effective, and since 

Congress did not specifically exclude appeals pending on its 

effective date, the repeal occasioned by H.R. 6116 does not 

apply here. However, that argument fails to address the 

meaning of “cases commenced” in H.R. 6116. Thus, to accept 

it, we would have to ignore the teachings of Slack and thereby 

judicially amend H.R. 6116 by reading “cases commenced on 

or after December 28, 2012” out of the statute. We decline to 

do so.

2. Puerto Rico

We are similarly unpersuaded by attempts to analogize 

H.R. 6116 to the revocation of certiorari jurisdiction that the 

Court of Appeals for the First Circuit had over final decisions 

of the Supreme Court of Puerto Rico. 

Congress gave the Court of Appeals for the First Circuit 

temporary certiorari jurisdiction over appeals from the 

 

104 Santos, 436 F.3d. at 1052 (citing Bruner, 343 U.S. 

at 115-17).

105 Id. at 1053.

106 Id.

107 H.R. 6116, § 3, 126 Stat. at 1607.

108 Pet’r’s’ Suppl. Br. 7. 
33

Supreme Court of Puerto Rico in 1948.109 Unlike the Revised 

Organic Act provision pertaining to decisions of the Supreme 

Court of the Virgin Islands or the statute giving the Court of 

Appeals for the Ninth Circuit jurisdiction over decisions of the 

Supreme Court of Guam, the law vesting the Court of Appeals 

for the First Circuit with jurisdiction over the Supreme Court 

of Puerto Rico contained no sunset provision. Rather, it stated, 

in relevant part:

The court[] of appeals for the First . . . Circuit[] 

shall have jurisdiction of appeals from all final 

decisions of the supreme court[] of Puerto Rico . 

. . in all cases involving the Constitution, laws or 

treaties of the United States or any authority 

exercised thereunder, in all habeas corpus 

proceedings, and in all other civil cases where 

the value in controversy exceeds $5,000, 

exclusive of interest and costs. 110

Nevertheless, Congress enacted legislation in 1961 that 

repealed that certiorari jurisdiction. That legislation simply 

stated: 

Section 1293 of title 28, United States Code, is repealed:

Provided, That such repeal shall not deprive the Court 

of Appeals

for the First Circuit 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.111 

Thus, Congress expressly included a savings clause preserving 

certiorari authority “over appeals taken to that Court from the 

 

109 Act of June 25, 1948, ch. 646, § 1293, 62 Stat. 929, 

929 (previously codified at 28 U.S.C. § 1293) (repealed 

1961).

110 Id. 

111 Act of Aug. 30, 1961, Pub. L. No. 87-189, § 3, 75 

Stat. 417, 417 (1961) (codified as amended at 28 U.S.C. § 

1258). 
34

Supreme Court of Puerto Rico before the effective date of [the] 

Act.”112

In Bason, we focused on that distinction. We explained: 

When Congress stripped the [Court of Appeals 

for 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.”113

. . . .

In H.R. 6116, Congress took a different 

approach . . . . 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 jurisdictionstripping (and jurisdiction-conferring) 

legislation itself that only applies to “cases 

commenced” on or after the enactment date.114

Thus, Defendants now understandably argue that 

Congress’s failure to similarly limit H.R. 6116 to “appeals” 

commenced on or after the effective date must mean that 

Congress did not intend any such limitation. In other words, 

Defendants argue that Congress must have meant “cases” in 

the generally understood sense. That definition would 

presumptively include any litigation (i.e., “case”) commenced 

by filing a complaint in the Superior Court of the Virgin Islands 

after December 28, 2012, the date H.R. 6116 became effective. 

However, as we have already explained, that argument ignores 

the U.S. Supreme Court’s guidance regarding how we should 

interpret “cases” in a statute applying only to appeals. As the 

Court explained in Slack, an appeal is its own “case” for 

purposes of such statutes. 115 Therefore we will no longer 

 

112 Id. (emphasis added). 113 Id.

114 Bason, 767 F.3d at 206-07.

115 See Slack, 529 U.S. at 482.
35

assume Congress used “cases” in H.R. 6116 as that word is 

generally understood.116 Moreover, aside from Bason, no 

federal appellate court has interpreted the effective date of a 

certiorari-stripping statute as an implicit jurisdictional 

reservation of appellate jurisdiction over cases at the trial level, 

absent specific language to that effect. 

C. Practical Effects

Moreover, although we cited in Bason our Court’s 

statement in a previous case that we should not “blindly” 

construe undefined statutory terms, we did not heed that 

admonition.117 We did not consider whether “the whole 

legislation, . . . the circumstances surrounding [H.R. 6116’s] 

enactment, or . . . the absurd results which follow from giving 

such broad meaning to the words, makes it unreasonable to 

believe that the legislator intended to include the particular 

act.”118 We realize, of course, that our interpretation of a 

statute should not unduly focus on its impact on pending 

litigation. However, the practical consequences of a given 

interpretation can help inform an inquiry into congressional 

intent. As the U.S. Supreme Court instructed in Griffin v. 

Oceanic Contractors, Inc., “interpretations of a statute which 

would produce absurd results are to be avoided if alternative 

interpretations consistent with the legislative purpose are 

available.”119 It is therefore appropriate to consider “the 

 

116 See id. at 481 (“While an appeal is a continuation of 

the litigation started in the trial court, it is a distinct step.”). 

117 Bason, 767 F.3d at 206 (citing Brown, 740 F.3d at 

149).

118 Holy Trinity Church v. United States, 143 U.S. 457, 

459 (1892).

119 458 U.S. 564, 575 (1982); see also Comm’r of 

Internal Revenue v. Brown, 380 U.S. 563, 571 (1965) (“[I]n 

interpreting a statute, [a court has] ‘some scope for adopting a 

restricted rather than a literal or usual meaning of its words 

where acceptance of that meaning would lead to absurd 

results . . . or would thwart the obvious purpose of the 

statute.’ But it is otherwise ‘where no such consequences 

[would] follow and where . . . it appears to be consonant with

the purposes of the Act.’” (ellipses and alteration in original) 
36

specific context in which that language is used, and the broader 

context of the statute as a whole,” if we are to “avoid 

constructions that produce ‘odd’ or ‘absurd results’ or that are 

‘inconsistent with common sense.’”120 

H.R. 6116 was enacted for the sole purpose of 

rescinding our certiorari jurisdiction over appeals from the 

Supreme Court of the Virgin Islands. As noted earlier, the 

Revised Organic Act established a maximum period of fifteen 

years for us to exercise certiorari review.121 That window was 

created to allow the new Supreme Court of the Virgin Islands 

 

(citations omitted) (quoting Helvering v. Hammel, 311 U.S. 

504, 510-11 (1941)); In re Magic Restaurants, Inc., 205 F.3d 

108, 116 (3d Cir. 2000) (“Even where the express language of 

a statute appears unambiguous, a court must look beyond that 

plain language where a literal interpretation of this language 

would thwart the purpose of the overall statutory scheme, 

would lead to an absurd result, or would otherwise produce a 

result ‘demonstrably at odds with the intentions of the 

drafters.’” (citation omitted) (quoting Demarest v. 

Manspeaker, 498 U.S. 184, 190 (1991)); United States v. 

Schneider, 14 F.3d 876, 880 (3d Cir.1994) (“It is the 

obligation of the court to construe a statute to avoid absurd 

results, if alternative interpretations are available and 

consistent with the legislative purpose.”).

120 Disabled in Action of Pa. v. Se. Pa. Transp. Auth.,

539 F.3d 199, 210 (3d Cir. 2008) (internal quotations 

omitted) (quoting In re Price, 370 F.3d 362, 369 (3d Cir. 

2004)); see also Long v. Tommy Hilfiger U.S.A., Inc., 671 

F.3d 371, 374-75 (3d Cir. 2012) (“In analyzing whether the 

statutory language is unambiguous, ‘we take account of the 

specific context in which that language is used, and the 

broader context of the statute as a whole.’” (quoting Disabled 

in Action of Pa., 539 F.39 at 210)).

121 See 48 U.S.C. § 1613 (1994 version); see also 158 

Cong. Rec. H6354 (daily ed. Nov. 14, 2012) (statement of 

Rep. Bobby Scott) (“The Revised Organic Act specifically 

grants the [T]hird [C]ircuit appellate jurisdiction for the first 

15 years of the Virgin Islands Supreme Court’s existence.” 

(emphasis added)).
37

to “develop[] . . . institutional traditions” sufficient to justify 

direct U.S. Supreme Court review.122 

A committee of our Court found that the Supreme Court 

of the Virgin Islands had demonstrated such sufficiency in less 

than fifteen years,123 and within a year of our Judicial Council 

unanimously approving that committee’s report, Congress 

enacted H.R. 6116 in recognition of that finding. This was a 

momentous occasion in the history of the Virgin Islands 

judicial system. One congresswoman characterized H.R. 6116 

as a “historic milestone” demarcating “the verge of 

accomplishing the final goal of making the U.S. Virgin Islands 

Supreme Court just like all other [s]tate supreme courts.”124 

Perpetuating our certiorari review by extending it to all suits 

initiated in the Virgin Islands judicial system before H.R. 6116 

was enacted is contrary to our recognition of the institutional 

competence of the Supreme Court of the Virgin Islands and the 

excellence of its jurisprudence. 

Linking the “commence[ment]” of an appeal from the 

Supreme Court of the Virgin Islands to the filing of a complaint 

for purposes of our certiorari authority retains that authority 

beyond the fifteen years Congress originally set for it. The 

Virgin Islands Bar Association has represented without 

contradiction that, as of 2014, there were over 6,000 pending 

cases in the Virgin Islands courts, each taking an average of ten 

years for adjudication.125 There is therefore a mounting 

backlog of cases in the Virgin Islands courts.126 

 

122 1984 Amendment to Revised Organic Act, title VII, 

§ 704, 98 Stat. at 1739.

123 Third Circuit Judicial Council Report, supra note 

51, at 23.

124 158 Cong. Rec. H6354-55 (daily ed. Nov. 14, 2012) 

(statement of Del. Donna Christian-Christensen).

125 See Fahie, 858 F.3d at 167 n.6. 

126 Amicus Companion Insurance Company urges that 

to the extent there is any “backlog” in the Virgin Islands 

courts, it is an apocryphal one. Br. of Amicus Curiae 

Companion Ins. Co. 2-3. Yet it is undeniable, even with the 

data Companion provides, that the “backlog” is increasing. 
38

This very case illustrates the likelihood that a large 

number of the now-pending cases will not be resolved for years 

to come. This complaint was filed in 2005, but the claims only 

reached the Supreme Court of the Virgin Islands on appeal in 

2015, ten years later. The Supreme Court of the Virgin Islands 

issued its decision in this case a year later, in 2016, and we 

granted the petition for certiorari in 2017, nearly twelve years 

after the case had originally been filed. It is therefore highly 

likely that interpreting H.R. 6116 to include all suits filed 

before H.R. 6116’s effective date of December 28, 2012, 

would extend our certiorari review over a significant number 

of cases through at least December 2022. Not only would this 

be ten years past the effective date of H.R. 6116, but it would 

also be eighteen years after the creation of the Supreme Court 

of the Virgin Islands and a full three years beyond the fifteenyear period Congress initially set for our certiorari jurisdiction 

to end. Yet, it is beyond dispute that Congress intended H.R. 

6116 to terminate our certiorari review, not prolong it. 

We are, of course, aware of the concern expressed in 

Bason that it would be unjust for us not to retain jurisdiction 

over cases filed in the Superior Court of the Virgin Islands 

before the effective date of H.R. 6116 given the parties’ 

expectations before that legislation was enacted.127 However, 

we question the reasonableness of any such expectations. As 

we have already noted, H.R. 6116 contained no express 

savings clause or other instruction as to non-appellate cases 

commenced before H.R. 6116’s effective date. Moreover, 

nothing in the Revised Organic Act, the 1984 Amendments 

thereto, or subsequent enactments of the Virgin Islands 

 

See id. at 3 (showing increases in the V.I. judiciary caseload 

in 2016 over both 2014 and 2015). 

127 See Bason, 767 F.3d at 210 (“[L]ike 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 Supreme Court).”). 
39

legislature gave anyone reason to believe that our certiorari 

jurisdiction would continue until a given appeal is ultimately 

decided. Rather, our certiorari jurisdiction was always to be of 

relatively short duration. 

Moreover, as we have explained, the Revised Organic 

Act clearly provided for our certiorari jurisdiction to end well 

before the fifteen years Congress initially allowed for its 

exercise.128 Attorneys and litigants therefore had no reason to 

assume that we would continue to have authority to review any 

final order of the Supreme Court of the Virgin Islands until 

their case was ultimately resolved. That was particularly true 

after the passage of H.R. 6116.129 In addition, litigants were 

 

128 1984 Amendment to Revised Organic Act, title VII, 

§ 704, 98 Stat. at 1739; 48 U.S.C. § 1613 (1994 version).

129 Amicus Companion Insurance Company wishes to 

obtain review of an adverse decision by the Supreme Court of 

the Virgin Islands that is based on Virgin Islands law. 

Companion Ins. Co. Br., at v. It states that a “key factor” in 

its decision to appeal the case through the Virgin Islands 

courts “was the availability of potential certiorari review by 

this Court if the V.I. Supreme Court’s decision was adverse.” 

Id. at vi. 

Companion’s reliance on our certiorari review was 

misplaced for two reasons. First, the very passage of H.R. 

6116—having occurred six years ago confirms Congress’s 

conclusion that the Virgin Islands judiciary warrants 

treatment “just like every high court in the States and 

territories,” 158 Cong. Rec. H6354 (daily ed. Nov. 14, 2012) 

(statement of Del. Christensen), and state supreme courts are 

the final arbiters of matters of state law. 

Second, we have long held that we defer to the 

Supreme Court of the Virgin Islands in matters of local law 

because that “best ensures that [we] 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.’” Pichardo, 613 

F.3d at 97 (quoting 48 U.S.C. § 1613 (1994 version)). Our 

very infrequent grants of certiorari review have rarely 

resulted in reversals in the area of local law. We have 
40

forewarned because, even before H.R. 6116 was enacted, 

Congress had amended similar statutory schemes in order to 

divest other federal circuit courts of appeals of jurisdiction to 

review even pending appeals from the local courts of other U.S. 

territories.130, 131 

 

overturned or vacated a decision of the Supreme Court of the 

Virgin Islands only twice since that court was created. 

Neither of those cases appears to have impacted local 

jurisprudence. Once was in Bason itself, which we now 

overturn. Bason, 767 F.3d at 214-16 (vacating the opinion of 

the court to the extent it addressed the moot issue of the 

reinstatement of the deceased petitioner). The second 

instance occurred in the very limited context of a contained 

local political dispute. In re Kendall, 712 F.3d 814, 816 (3d 

Cir. 2013) (Kendall II) (reversing the court’s convictions of a 

judge of the Superior Court of the Virgin Islands for indirect 

criminal contempt after he published a judicial opinion 

chastising the court).

130 See Act of Oct. 30, 2004, § 2, 118 Stat. at 2208 

(transferring certiorari jurisdiction over decisions of the 

Supreme Court of Guam from the Court of Appeals for the 

Ninth Circuit and to the U.S. Supreme Court); Santos, 436 

F.3d at 1053-54 (deciding, pursuant to Act of Oct. 30, 2004, § 

2, 118 Stat. at 2208, that the Court of Appeals for the Ninth 

Circuit had no further jurisdiction to review decisions of the 

Supreme Court of Guam, including those that had been 

pending at the time of enactment).

131 Our holding is also consistent with our general 

avoidance of retroactivity in interpreting statutes. Absent 

clear congressional intent to the contrary, we normally 

interpret statutes with the presumption that they do not apply 

retroactively, i.e., to cases pending on the date of the law’s 

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

But as we clarified in Kendall I, this presumption against 

retroactivity does not apply to H.R. 6116 because such a 

“jurisdiction-stripping statute usually ‘takes away no 

substantive right but simply changes the tribunal that is to 

hear the case.’” Kendall I, 716 F.3d at 87 (quoting Hamdan, 

548 U.S. at 577). 
41

IV. CONCLUSION

In Bason, we acknowledged that the Supreme Court of 

the Virgin Islands had “succeeded in developing sufficient 

institutional traditions to justify . . . direct review” by the U.S. 

Supreme Court.132 Not only have we recognized that court’s 

maturity and commended its development and jurisprudence, 

but our Third Circuit Judicial Council also recommended that 

our jurisdiction be withdrawn and that the Supreme Court of 

the Virgin Islands “enjoy the same relationship with the 

Supreme Court of the United States as do the highest courts of 

the several States.” 133 

For all the reasons that we have stated, we now hold that 

H.R. 6116 terminated our jurisdiction over all certiorari 

petitions from final decisions of the Supreme Court of the 

Virgin Islands if those petitions were filed on or after 

December 28, 2012. Having determined that we are without 

jurisdiction to review this case, we will dismiss the petition for 

writ of certiorari.

 

132 Bason, 767 F.3d at 210.

133 Third Circuit Judicial Council Report, supra note 

51, at 23.
BIBAS, Circuit Judge, dissenting.

The majority reads H.R. 6116 as providing that the filing of 

a certiorari petition commences a case and so deprives us of 

jurisdiction over that case. I cannot agree. Under the majority’s 

interpretation, we have certiorari jurisdiction over final judgments of the Supreme Court of the Virgin Islands—up until the 

moment a litigant asks us to exercise that jurisdiction. That is 

not what H.R. 6116 says.

“A civil action is commenced by filing a complaint with the 

[trial] court,” not by filing a certiorari petition. Fed. R. Civ. P. 

3. The case isthe entire civil action, not just the certiorari stage. 

As the majority’s legislative survey illustrates, Congress distinguishes among “cases,” “appeals,” and “writs of certiorari.” 

And it does so in statutes generally, appellate statutes, appellate 

statutes governing territorial jurisdiction, and statutes (going 

back to 1917) governing jurisdiction over the Virgin Islands.

Nor can I agree that Bason’s reading would perpetuate our 

certiorari jurisdiction beyond the fifteen years specified by 

Congress. If H.R. 6116 applies to a case, then our jurisdiction 

over that case ends immediately. I see no way to read the statute that would preserve our jurisdiction beyond “fifteen years 

following the establishment” of the Supreme Court of the Virgin Islands. 48 U.S.C. §1613 (1994).

I would also not venture into the quicksand of legislative 

history, or speculate about legislative purpose. The text is 

clear. And stare decisis is a weighty concern, both generally 

and for litigants in the pipeline who relied on Bason. So I 

would adhere to Bason’s reading of H.R. 6116 and hold that 

we have jurisdiction here.

I respectfully dissent.