2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-2014

United Industrial Service Tran v. Government of

the Virgin Islan

Precedential or Non-Precedential: Precedential

Docket No. 13-1247

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United Industrial Service Tran v. Government of the Virgin Islan" (2014). 2014 Decisions. Paper 873.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/873
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1247

_____________

UNITED INDUSTRIAL, SERVICE, TRANSPORTATION,

PROFESSIONAL AND GOVERNMENT WORKERS

OF NORTH AMERICA SEAFARERS INTERNATIONAL 

UNION, ON BEHALF OF ERNEST BASON,

 

Petitioner

v.

GOVERNMENT OF THE VIRGIN ISLANDS 

_______________

On Writ of Certiorari to the Supreme Court

of the Virgin Islands

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

_______________

Argued December 10, 2013

BEFORE: FISHER, COWEN AND NYGAARD, Circuit 

Judges

(Filed: August 25, 2014)
2

Namosha Boykin, Esq. (Argued)

Amos W. Carty, Esq.

Pedro K. Williams, Esq.

5212 Wimmelskafts Gade

St. Thomas, VI 00802

Counsel for Petitioner

Joss N. Springette, Esq. (Argued)

Office of Collective Bargaining

3438 Kronprindsens Gade

Second Floor

St. Thomas, VI 00802

Counsel for Respondent

Anthony Michael Ciolli, Esq.

Supreme Court of the Virgin Islands

P.O. Box 590

St. Thomas, VI 00804

Counsel for Amicus Curiae

_______________

OPINION

_______________

COWEN, Circuit Judge.

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

certiorari filed by the United Industrial, Service, 
3

Transportation, Professional and Government Workers of 

North America Seafarers International Union (“Union”) on 

behalf of Ernest Bason, Esq., asking us to review a decision 

by the Virgin Islands Supreme Court. On December 28, 

2012, the President signed H.R. 6116, “a bill that would 

eliminate our certiorari jurisdiction over final decisions of the 

Virgin Islands Supreme Court and replace it with direct 

review by the Supreme Court of the United States.” Kendall 

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

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

certiorari jurisdiction over proceedings that were filed in the 

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

6116. Although we thereby still possess certiorari jurisdiction 

with respect to the proceedings filed by the Union and the 

Government of the Virgin Islands in the Virgin Islands 

Superior Court, we nevertheless must dismiss the Union’s 

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

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

the Virgin Islands Code is harmonious with title 3, section 

113(a) of the Virgin Islands Code.” We, however, will vacate 

the Virgin Islands Supreme Court’s order and opinion and 

will remand with instructions to the Virgin Islands Supreme 

Court to vacate the portions of the Virgin Islands Superior 

Court’s judgment and opinion that addressed the issue of 

reinstatement.

I.

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

Attorney General with the Virgin Islands Department of 

Justice. Most Assistant Attorneys General, including Bason, 
4

were subject to a collective bargaining agreement, and the 

Union served as their exclusive bargaining representative. In 

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

informed Bason that he intended to impose a suspension and 

to terminate his employment. The Union filed a grievance on 

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

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

Attorney General’s recommendation and approved Bason’s 

immediate termination. Withdrawing the previous grievance, 

the Union submitted a second grievance on behalf of Bason 

challenging the Governor’s decision. The second grievance 

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

entered an award determining that the underlying grievance 

was arbitrable and properly before him for resolution. He 

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

specifically finding that the Governor lacked just cause to 

remove Bason. In addition, the Arbitrator awarded the 

following remedy:

The Arbitrator awards the Grievant immediate

reinstatement to his previous employment as an 

Assistant Attorney General and the immediate

restoration of all emoluments associated with 

his employment as an Assistant Attorney 

General, including without limitation, all related 

benefits and seniority effective July 1, 2010 and 

back pay for the period between the termination 

of the Suspension imposed by the Attorney 

General in his June 7, 2010 letter to the 

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

reinstatement of the Grievant to his employment 
5

as an Assistant Attorney General pursuant to 

this Award.

(Id.)

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

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

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

Superior Court to vacate the arbitration award and to enter a 

declaratory judgment providing that the Virgin Islands Justice 

Department had no obligation to reinstate Bason. Acting on 

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

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

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

Superior Court to confirm the arbitration award. The Virgin 

Islands Superior Court consolidated the two cases. The 

parties filed summary judgment motions (and the Union also 

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

On December 13, 2011, the Virgin Islands Superior 

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

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

Islands Superior Court vacated the April 29, 2011 arbitration 

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

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

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

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

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

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

Islands Superior Court confirmed the arbitration award “in all 

other respects” and thereby ordered judgment to be entered to 
6

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

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

ordered, adjudged, and decreed that:

. . . Ernest F. Bason, Esquire is 

IMMEDIATELY REINSTATED as an 

assistant attorney general in the Virgin Islands 

Department of Justice, Office of the Attorney 

General, with the immediate restoration of all 

employment benefits, seniority, and other 

emoluments of employment effective July 23, 

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

date of his actual reinstatement . . .

(Id.)

In its accompanying opinion, the Virgin Islands 

Superior Court considered the Government’s two theories for 

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

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

“the arbitrator’s decision to reinstate Attorney Bason violates 

the public policy that assistant attorneys general can be fired 

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

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

the Virgin Islands Superior Court, the Arbitrator exceeded his 

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

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

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

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

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

extent that it awards any relief to Attorney Bason prior to July 
7

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

second theory, the Virgin Islands Superior Court concluded 

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

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

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

reinstatement of Ernest Bason, Esquire as an assistant 

attorney general with the Virgin Islands Department of 

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

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

*9.

On December 16, 2011, the Government notified the 

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

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

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

from the opinion and judgment to the Virgin Islands Supreme 

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

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

the judgment ordering the Government to pay back pay as 

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

account of the Government’s alleged failure to pay the 

requisite back pay.

The Union also moved to dismiss the Government’s 

appeal. According to the Union, the Virgin Islands Supreme 

Court lacked appellate jurisdiction because neither the Virgin 

Islands Superior Court nor the Arbitrator ever established the 

amount of back pay owed to Bason and because the absence 

of a clear monetary judgment “renders the December 13, 

2011 Opinion and Judgment non-final for purposes of section 

32 of title 4 [of the Virgin Islands Code].” Gov’t of the 
8

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

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

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

specific amount of back pay owed to Bason became relevant 

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

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

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

were directed to submit supplemental briefing on this 

jurisdictional issue. On September 10, 2012, the Virgin 

Islands Supreme Court denied as moot the Government’s 

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

that no monetary judgment had been entered and that the 

Government had never requested a stay of the portion of the 

judgment ordering Bason’s reinstatement. 

After hearing oral argument, the Virgin Islands 

Supreme Court disposed of the Government’s appeal in an 

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

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

reinstatement.” Id. at *1.

Accordingly, the Virgin Islands Supreme Court stated 

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

December 13, 2011 Opinion and Judgment which authorizes 

Ernest Bason’s reinstatement as an Assistant Attorney 

General is REVERSED” and that “the instant appeal is 

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

Furthermore, the matter was ordered remanded, and “the 

Superior Court is directed to issue a final judgment consistent 

with this Opinion.” (A22.)
9

In the accompanying opinion, the Virgin Islands 

Supreme Court began with the threshold question of appellate 

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

embodies “the final judgment rule,” which generally requires 

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

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

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

recognized that the December 13, 2011 opinion and judgment 

did not “technically” constitute a final order because neither 

the Virgin Islands Superior Court nor the Arbitrator 

calculated the amount of back pay the Government must 

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

practical finality rule permitting an appellate court to review 

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

claimed that the back pay calculation “is not a purely 

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

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

the Government claimed that the opinion and judgment 

mandating Bason’s immediate reinstatement constituted an 

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

Virgin Islands Code.

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

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

Superior Court should calculate any monetary damages 

ultimately awarded to Bason precludes us from exercising 

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

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

However, it also agreed with the Government’s alternative 

theory that an order mandating immediate reinstatement 

constitutes an appealable injunction. The Union requested 
10

Bason’s reinstatement, and the Virgin Islands Superior Court 

could have used its contempt powers if the Government had 

refused to reinstate him within the requisite time period. 

“Accordingly, we possess jurisdiction over this appeal, but 

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

Government reinstate Bason.” Id.

Turning to the merits, the Virgin Islands Supreme 

Court determined that the portion of the Virgin Islands 

Superior Court’s opinion and judgment ordering the 

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

concedes that, under Section 11 of the Revised Organic Act 

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

employees of the executive branch of the government of the 

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

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

Virgin Islands Code authorizes the Governor to remove an 

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

Attorneys General shall be appointed by the Governor, and 

shall hold office during the continuance in office of the 

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

at *4. “Assuming without deciding that Assistant Attorneys 

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

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

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

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

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

employee benefits, terms and conditions of employment and 

all matters relating thereto may be specifically negotiated in a 

collective bargaining proceeding between the public 

employer and the exclusive representative unless otherwise 
11

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

attempted to harmonize section 113 and the collective 

bargaining agreement by arguing that the agreement simply 

prescribes the manner and conditions by which terminations 

may take place, “this Court disagrees that any harmonization 

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

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

automatic discharges of Assistant Attorneys General without 

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

this Court how the provisions of the collective bargaining 

agreement which permit reinstatement by an arbitrator of an 

Assistant Attorney General discharged without just cause can 

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

In the end, the Virgin Islands Supreme Court 

concluded that:

Since the portion of the December 13, 

2011 Opinion and Judgment mandating Bason’s 

reinstatement constituted an appealable 

injunction, this Court possesses jurisdiction 

over that portion of the underlying order 

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

merits, to the extent Assistant Attorneys 

General may unionize pursuant to title 24, 

chapter 14, we hold that section 113 of title 3 

precluded the arbitrator and the Superior Court 

from mandating that the Government reinstate 

Bason as an Assistant Attorney General. 

Accordingly, we reverse the portion of the 

December 13, 2011 Opinion and Judgment that 
12

authorizes Bason’s reinstatement as an 

Assistant Attorney General, and direct the 

Superior Court, on remand, to issue a final 

judgment which is consistent with this Opinion.

Id.

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

the Virgin Islands Supreme Court to stay enforcement of the 

judgment pending the filing of an application for a writ of 

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

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

certiorari jurisdiction over final decisions of the Virgin 

Islands Supreme Court and replace it with direct review by 

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

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

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

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

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

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

the Union filed a motion asking the Virgin Islands Supreme 

Court to render an advisory opinion on the following 

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

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

to appeals from decisions or orders of this court commenced 

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

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

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

Virgin Islands Supreme Court issued its mandate and denied 

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

constituted an interlocutory appeal from the issuance of an 
13

injunction and that it never enjoined the Virgin Islands 

Superior Court from conducting any proceedings during the 

pendency of the appeal. Furthermore, mere monetary loss 

resulting from loss of employment did not constitute good 

cause for a stay because “Appellee would be entitled to 

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

granted and this Court’s November 26, 2012 Opinion 

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

With respect to the advisory opinion motion, the Virgin 

Islands Supreme Court explained that “Appellee has cited to 

no authority, and this Court can find none, for the proposition 

that this Court may properly assist a litigant in interpreting a 

federal statute.” (Id.)

On remand to the Virgin Islands Superior Court, the 

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

issuance of a final judgment. The Virgin Islands Superior 

Court heard oral argument on these motions on May 30, 

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

pending.

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

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

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

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

the issue of jurisdiction over petitions for certiorari after the 

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

given the opportunity to file jurisdictional submissions, which 

they both did.

This Court filed the following order on April 24, 2013:
14

The foregoing petition for a writ of certiorari 

will not be dismissed for lack of jurisdiction on 

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

time. The petition is granted as to the first 

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

section 374(a) of the Virgin Islands Code is 

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

Virgin Islands Code. In addition to such 

arguments as the parties wish to raise on that 

issue, the parties are directed to address whether 

the Virgin Islands Supreme Court’s decision is 

a “final decision” within the meaning of former 

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

remand to the Virgin Islands Superior Court. 

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

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

dismiss this petition at this time does not

represent a ruling that this Court retains 

jurisdiction over this petition under H.R. 6116, 

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

necessary by the panel of this Court that 

considers this appeal on the merits.

(4/24/13 Order at 2.)

After briefing was concluded, the Union filed a 

suggestion of death pursuant to Federal Rule of Appellate 

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

September 3, 2013 nominal appellant Attorney Ernest Bason 

passed away.” (Suggestion of Death at 1.) We asked the 
15

Union and the Government to file letter submissions 

addressing the possible effect of Bason’s death on our 

jurisdiction and whether “this matter is now moot because 

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

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

so.

1

 1 On March 19, 2014, we filed our original opinion and 

judgment in this proceeding. See UIW-SIU v. Gov’t of the 

V.I., 746 F.3d 115 (3d Cir. 2014). We held that we retain 

certiorari jurisdiction over proceedings that were filed in the 

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

6116. Although we thereby determined that we possess

certiorari jurisdiction with respect to the proceedings filed by 

the Union and the Government in the Virgin Islands Superior 

Court, we nevertheless dismissed the Union’s certiorari 

petition as moot on account of Bason’s death. The Union 

then filed a petition for rehearing and rehearing en banc. 

Relying on the rule recognized by the Supreme Court in 

United States v. Munsingwear, Inc., 340 U.S. 36 (1950), the 

Union argues that, when an appeal or certiorari proceeding is 

dismissed for mootness, the decision under review also must 

be vacated. Accordingly, it asks this Court “to clarify its 

March 19, 2014 Opinion to explicitly direct that the entire 

November 26, 2012 Decision of the Supreme Court of the 

Virgin Islands and those portions of the December 13, 2011 

decision of the Superior Court of the Virgin Islands that 

address the issue of reinstatement be vacated.” (Petition for 

Rehearing at 9.) The Government filed an opposition to the 

Union’s rehearing petition. In a May 23, 2014 order, we 

granted the petition for panel hearing and vacated our March 
16

 

19, 2014 opinion and judgment. 

On June 2, 2014, the Virgin Islands Supreme Court 

submitted a notice of filing of amicus curiae brief or, in the 

alternative, a motion for leave to file amicus curiae brief in 

support of neither party. In its proposed amicus curiae brief, 

the Virgin Islands Supreme Court argues at some length that: 

(1) we must refrain from interpreting H.R. 6116 given our 

mootness determination; (2) in any event, we were wrong to 

conclude that we retain certiorari jurisdiction over 

proceedings that were filed in the Virgin Islands courts before 

the enactment date of H.R. 6116; and (3) the Munsingwear

rule does not apply because we lack supervisory authority 

over the Virgin Islands Supreme Court. Although the Virgin 

Islands Supreme Court criticizes the manner in which the 

Government has handled this certiorari proceeding, the 

Government nevertheless joined in the arguments advanced in 

this amicus curiae brief. The Union, however, filed a 

response in opposition to the submission by the Virgin Islands 

Supreme Court.

On July 2, 2014, this Court denied the Virgin Islands 

Supreme Court’s motion to file its amicus brief pursuant to 

Federal Rule of Appellate Procedure 29(a) on the grounds 

that it does not qualify as the “state” under this rule. We, 

however, granted its alternative motion for leave to file the 

amicus curiae brief pursuant to Federal Rule of Appellate 

Procedure 29(b). The Union then filed its response to this 

amicus curiae brief. 
17

 

Nevertheless, it does appear rather unusual and even 

troubling for a court to submit an amicus curiae brief, 

especially where the court in question actually issued the 

decision that is the subject of the appellate or certiorari 

proceeding. In addition, we find the specific circumstances 

under which this amicus curiae brief was filed to be rather 

problematic. After all, the Virgin Islands Supreme Court 

could have submitted a brief addressing the question of our 

certiorari jurisdiction under H.R. 6116 when we asked the 

parties to file jurisdictional submissions on this specific 

question or when briefing was concluded. The Union even 

filed a motion before the effective date of this legislation 

formally asking the Virgin Islands Supreme Court to render

an advisory opinion answering the question of whether H.R. 

6116 applies to all cases commenced at the trial level on or 

after its enactment or only applies to appeals from decisions 

of the Virgin Islands Supreme Court commenced on or after 

the date of enactment. Although it now offers its own 

interpretation of H.R. 6116, the Virgin Islands Supreme Court 

adamantly refused to answer the question put to it on the 

grounds that it could not assist a litigant in interpreting a 

federal statute. It also appears that the Virgin Islands 

Supreme Court could have addressed the possible 

consequences arising out of Bason’s death when the 

suggestion of death was filed and when we asked the parties 

to provide letter submissions regarding the possible effect of 

this death on our jurisdiction. In the end, the Virgin Islands 

Supreme Court did not submit an amicus curiae brief until 

after we rendered our initial opinion and judgment and 

granted the Union’s petition for panel rehearing. While the 
18

This proceeding presents us with two threshold 

questions: (1) whether we retain certiorari jurisdiction over 

proceedings that were filed in the Virgin Islands courts before 

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

thereby retain certiorari jurisdiction in the present 

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

the current certiorari proceeding. While we conclude that we 

still possess certiorari jurisdiction over proceedings that were 

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

enactment date, we will nevertheless dismiss the Union’s 

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

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

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

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

Code.”2

 However, we will vacate the Virgin Islands Supreme 

Court’s order and opinion and will remand with instructions 

 

Union itself merely asks this Court to follow the 

Munsingwear rule and vacate the Virgin Islands Supreme 

Court’s decision, the Virgin Islands Supreme Court goes on 

to critique the interpretation of H.R. 6116 that we offered in 

our initial opinion as well as our determination to consider 

whether we retain certiorari jurisdiction under H.R. 6116 in 

the first place. In any event, we have fully considered—and 

reject—the various arguments advanced by the Virgin Islands 

Supreme Court on their merits.

2 We likewise do not address the question of “whether 

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

decision’ within the meaning of [§ 1613] in light of that 

court’s remand to the Virgin Islands Superior Court.”
19

to the Virgin Islands Supreme Court to vacate the portions of 

the Virgin Islands Superior Court’s judgment and opinion that 

addressed the issue of reinstatement.3

 

 3 The Virgin Islands Supreme Court argues that we 

ought to refrain from interpreting H.R. 6116 in light of our 

determination that the certiorari proceeding is moot. It is 

uncontested that, while threshold jurisdictional issues must

ordinarily be decided before turning to the merits, “there is no 

mandatory ‘sequencing of jurisdictional issues.’” Sinochem 

Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431

(2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 

574, 584 (1999)). In Camreta v. Greene, 131 S. Ct. 2020 

(2011), the Supreme Court observed that it “has never held 

that it may consider only one threshold issue per case,” id. at 

2033 n.8. Accordingly, it decided that government officials 

who prevailed on qualified immunity grounds before the 

circuit court could obtain Supreme Court review of a circuit 

court’s decision that their conduct violated the Constitution 

even though the case had otherwise become moot. Id. at 

2026-36. We also determine that, given the specific 

circumstances of this certiorari proceeding, it is appropriate to 

begin with the threshold question of our subject matter 

jurisdiction over the current certiorari proceeding pursuant to 

H.R. 6116 before deciding whether Bason’s subsequent death

otherwise moots this proceeding. After all, the Court 

specifically directed the parties to address this jurisdictional 

question, and this question was then fully briefed by the

parties before Bason’s death. See, e.g., id. at 2033 n.8 

(“Moreover, that issue was fully litigated in this Court”). As 

our mootness discussion in Section II.B. indicates, the two 
20

A. H.R. 6116

In 1984, Congress authorized the Legislature of the 

Virgin Islands to establish an appellate court for the Virgin 

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

legislature created the Supreme Court of the Virgin Islands, 

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

e.g., Defoe, 702 F.3d at 738-39. The pre-amended version of 

28 U.S.C. § 1613 states in relevant part that:

The relations between the courts established by 

the Constitution or laws of the United States 

and the courts established by local law with 

respect to appeals, certiorari, removal of causes, 

the issuance of writs of habeas corpus, and 

other matters or proceedings shall be governed 

by the laws of the United States pertaining to 

the relations between the courts of the United 

States, including the Supreme Court of the 

United States, and the courts of the several 

States in such matters and proceedings: 

Provided, That for the first fifteen years 

 

threshold questions are not unrelated. See, e.g., id. (“[O]ur 

discussion of reviewability is critical to our ultimate 

disposition of this suit.”). Similarly, the question of 

mootness, which arises out of an unusual and even unique set 

of circumstances, does not represent “a textbook case” for 

immediate dismissal. Sinochem, 549 U.S. at 435 (“This is a 

textbook case for immediate forum non conveniens 

dismissal.”).
21

following the establishment of the appellate 

court authorized by section 1611(a) of this title, 

the United States Court of Appeals for the Third 

Circuit shall have jurisdiction to review by writ 

of certiorari all final decisions of the highest 

court of the Virgin Islands from which a 

decision could be had. . . . 

“[U]nlike the United Sates Supreme Court’s certiorari statute, 

§ 1613 is not limited to decisions on federal law.” Defoe v. 

Phillip, 702 F.3d 735, 743 (3d Cir. 2012). “We also have the 

discretion to review the Virgin Islands Supreme Court’s 

decisions on local law” and will reverse such a decision if it is 

“manifestly erroneous or inescapably wrong.” Id. (citing 

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

2010)). This temporary period of certiorari jurisdiction was 

designed to allow enough time for the new court “to develop 

‘sufficient institutional traditions [of its own] to justify direct 

review by the Supreme Court of the United States.’” Kendall 

I, 716 F.3d at 86 (quoting § 1613). Once the Virgin Islands 

Supreme Court established the requisite traditions, it would 

assume the same role as the highest court of any state, i.e., “it 

will be the final authority on Virgin Islands law.” Defoe, 702 

F.3d at 739. The Supreme Court would then exercise 

certiorari review over the Virgin Islands Supreme Court’s 

final decisions on questions of federal law, and, in contrast, 

we would no longer possess certiorari jurisdiction as to its 

rulings on questions of either federal or Virgin Islands local 

law. See, e.g., id.
22

“Recognizing that the Virgin Islands Supreme Court 

might develop sufficient institutional traditions before the 

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

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

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

Virgin Islands Supreme Court “passed that test with flying 

colors” in 2012 “when a committee of this Court 

recommended to the Third Circuit Judicial Council that 

Congress eliminate our certiorari jurisdiction over Virgin 

Islands Supreme Court decisions in favor of direct review by 

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

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

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

available at

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

ofVirginIslandsSupremeCourt.pdf)). The Executive and 

Legislative Branches acted with dispatch on our 

recommendation:

By December 13, 2012, both the House of 

Representatives and the Senate had passed H.R. 

6116, a bill that would eliminate our certiorari 

jurisdiction over final decisions of the Virgin 

Islands Supreme Court and replace it with direct 

review by the Supreme Court of the United

States. See An Act to amend the Revised 

Organic Act of the Virgin Islands to provide for 

direct review by the United States Supreme 

Court of decisions of the Virgin Islands 

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

(2012). President Obama signed H.R. 6116 into 
23

law on December 28, 2012.

Id. Section 1 of this legislation amends § 1613 by striking the 

language granting this Court certiorari jurisdiction over final 

decisions of the highest court of the Virgin Islands. Section 2 

of H.R. 6116 adds the following section to the statute 

governing the jurisdiction of the Supreme Court:

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

Virgin Islands; certiorari

“Final judgments or decrees rendered by the 

Supreme Court of the Virgin Islands may be 

reviewed by the Supreme Court by writ of 

certiorari where the validity of a treaty or statute 

of the United States is drawn in question or 

where the validity of a statute of the Virgin 

Islands is drawn in question on the ground of its 

being repugnant to the Constitution, treaties, or 

laws of the United States, or where any title, 

right, privilege, or immunity is specially set up 

or claimed under the Constitution or the treaties 

or statutes of, or any commission held or 

authority exercised under, the United States.” 

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

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

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

i.e., December 28, 2012.4

 4 H.R. 6116 states:
24

 

SECTION 1. DIRECT REVIEW BY U.S. SUPREME 

COURT OF DECISIONS OF VIRGIN ISLANDS 

SUPREME COURT.

Section 23 of the Revised Organic Act of the Virgin 

Islands (48 U.S.C. 1613) is amended by striking “: Provided, 

That” and all that follows through the end and inserting a 

period.

SEC. 2. JURISDICTION OF THE SUPREME 

COURT.

(a) IN GENERAL.—Chapter 81 of title 28, United 

States Code, is amended by adding at the end the following:

“§ 1260. Supreme Court of the Virgin Islands; 

certiorari

“Final judgments or decrees rendered by the 

Supreme Court of the Virgin Islands may be 

reviewed by the Supreme Court by writ of 

certiorari where the validity of a treaty or statute 

of the United States is drawn in question or 

where the validity of a statute of the Virgin 

Islands is drawn in question on the ground of its 

being repugnant to the Constitution, treaties, or 

laws of the United States, or where any title, 

right, privilege, or immunity is specially set up 

or claimed under the Constitution or the treaties 
25

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

certiorari jurisdiction in two opinions involving Virgin 

Islands Supreme Court decisions on questions of federal law: 

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

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

legislation does not strip us of our certiorari jurisdiction over 

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

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

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

characterized Kendall I as “holding that Congress’s recent 

elimination of the Third Circuit’s certiorari jurisdiction over 

decisions of the Virgin Islands Supreme Court does not 

affect, at a minimum, certiorari petitions filed before the 

 

or statutes of, or any commission held or 

authority exercised under, the United States.” .

(b) CONFORMING AMENDMENT.—The 

table of sections for chapter 81 of title 28, 

United States Code, is amended by adding at 

the end the following new item:

“1260. Supreme Court of the Virgin Islands; 

certiorari.” . 

SEC. 3. EFFECTIVE DATE.

The amendments made by this Act apply to 

cases commenced on or after the date of the 

enactment of this Act.
26

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

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

“When interpreting a statute, we normally presume 

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

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

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

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

As we observed in Kendall I, the presumption against 

retroactivity does not apply to legislation that merely alters 

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

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

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

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

retroactivity problem arises’ with respect to an intervening 

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

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

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

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

Hamdan, 548 U.S. at 577).

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

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

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

rules of statutory construction to decide whether a statute 

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

Kendall I:
27

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

construction’ . . . may dictate otherwise.” 

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

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

Congress spoke clearly: “[t]he amendments 

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

of the Third Circuit’s certiorari jurisdiction and

substitution of such review by the United States 

Supreme Court—“apply to cases commenced 

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

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

“cases commenced” carries a broader meaning 

referring to the filing of a complaint in the 

Superior Court or a narrower meaning referring 

to the filing of a certiorari petition in this 

Court—an issue we need not decide today—

Kendall commenced this case long before H.R. 

6116’s enactment.

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

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

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

In Kendall I, we addressed—and distinguished—the 

Ninth Circuit’s ruling in Santos v. Guam, 436 F.3d 1051 (9th 

Cir. 2006), which held that Congress’s elimination of the 

Ninth Circuit’s certiorari jurisdiction over the Guam Supreme 

Court (and substitution of direct review by the Supreme 

Court) applied to pending cases. Kendall I, 716 F.3d at 87. 

“To the extent that Santos interprets Supreme Court precedent 

as holding that jurisdiction-stripping provisions automatically 
28

apply retroactively absent an express reservation of 

jurisdiction over pending cases, the Supreme Court 

subsequently rejected such an approach in [Hamdan v. 

Rumsfeld, 548 U.S. 557 (2006)]. See [id. at 584] (rejecting 

this ‘inflexible’ rule advanced by Justice Scalia’s dissent and 

by the Government).” Kendall I, 716 F.3d at 87. “More 

importantly,” H.R. 6116 was markedly different from the 

legislation at issue in Santos:

In Santos, the Ninth Circuit addressed a statute 

in which Congress was completely silent about 

the effective date of the jurisdiction-stripping 

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

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

the effective date”). By contrast, Congress was 

explicit that H.R. 6116’s amendments apply 

only “to cases commenced on or after the date 

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

§ 3. As a result, we retain certiorari jurisdiction 

over all cases “commenced” before the 

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

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

negative inference that Congress did not intend 

to eliminate jurisdiction over pending detainee 

habeas petitions where the statute was silent 

about whether its jurisdiction-stripping 

subsection applied to cases even though it 

expressly made two other subsections 

retroactive).

Id. at 87-88.
29

The Government and the Union filed their respective 

Virgin Islands Superior Court actions in 2011, and the 

Government filed its ultimately successful appeal to the 

Virgin Islands Supreme Court in the same year. Although the 

Virgin Islands Supreme Court entered its order and opinion 

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

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

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

therefore must decide the specific issue that we refused to 

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

broader meaning referring to the filing of a complaint in the 

Superior Court or a narrower meaning referring to the filing 

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

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

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

purpose of the legislation, the Government asks us to construe 

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

certiorari petition. Based on the language of the statute, 

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

Union that we retain certiorari jurisdiction over proceedings 

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

enactment date. This includes the proceedings filed by the 

Government and the Union in the Virgin Islands Superior 

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

commenced’ carries a broader meaning referring to the filing 

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

The plain language of the statutory terms “cases 

commenced” appears to encompass proceedings filed in the 

Virgin Islands courts. See, e.g., United States v. Brown, 740 
30

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

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

When words are not defined within the statute, we construe 

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

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

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

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

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

expresses that intent with sufficient precision, we need not 

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

generally been understood to include judicial proceedings of 

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

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

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

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

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

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

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

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

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

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

traditionally been understood as “commenced when it is first 

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

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

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

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

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

omitted)).

If it had indeed meant to strip this Court of certiorari 

jurisdiction over proceedings already filed in the Virgin 
31

Islands courts before the enactment date of the legislation, 

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

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

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

commenced” or “certiorari proceedings commenced” in the 

Third Circuit on or after the date of enactment. It evidently 

could have stripped this Court of any remaining certiorari 

jurisdiction by simply omitting any reference to an effective 

date, which is what Congress apparently did with respect to 

the Ninth Circuit’s jurisdiction over the Guam Supreme 

Court. Santos, 436 F.3d at 1053; see also Kendall I, 716 F.3d 

at 87. When Congress stripped the First Circuit of its 

jurisdiction over the Puerto Rico Supreme Court, it expressly 

stated that “such repeal shall not deprive the Court of Appeals 

of jurisdiction to hear and determine appeals taken to that 

court from the Supreme Court of Puerto Rico before the 

effective date of this Act.” Act of Aug. 30, 1961, Pub. L. No. 

87-189, § 3, 75 Stat. 417 (1961). In 1988, Congress amended 

the statutory scheme governing the Supreme Court’s 

certiorari jurisdiction. However, in doing so, it expressly 

stated that the amendments “shall not apply to cases pending 

in the Supreme Court on the effective date of such 

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

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

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

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

the statutory provision stripping the District Court of the 

Virgin Islands of appellate jurisdiction over local actions 

upon the creation by the Virgin Islands Legislature of a 

Virgin Islands appellate court, i.e., the legislation stated that it 
32

“shall not result in the loss of jurisdiction of the district court 

over any appeal then pending in it.” 48 U.S.C. § 1613a(d).

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

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

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

particular type of proceeding or a specific judicial body. This 

section instead uses expansive and otherwise unmodified 

language in order to govern the applicability of amendments 

taking away jurisdiction from one court and granting 

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

after the date of enactment. Instead of enacting an exception 

reserving our jurisdiction over “pending appeals” (or even 

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

the jurisdiction-stripping (and jurisdiction-conferring) 

legislation itself that only applies to “cases commenced” on 

or after the enactment date. Congress likewise has repeatedly 

used somewhat similar language with respect to the 

applicability of amendments made to other statutory schemes. 

These include the supplemental jurisdiction statute, Judicial 

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

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

section shall apply to civil actions commenced on or after the 

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

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

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

this section shall apply with respect to claims in civil actions 

commenced in State courts on or after the date of the 

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

removal and interlocutory appeals in class action proceedings, 

Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 9, 
33

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

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

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

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

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

as well as civil proceedings).

We believe that prior case law also supports our 

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

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

certiorari jurisdiction over decisions of the Virgin Islands 

Supreme Court does not affect, at a minimum, certiorari 

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

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

dismiss a writ of certiorari pursuant to the Detainee Treatment 

Act, which was enacted after the Supreme Court had already 

granted the writ and (at least according to the federal 

government) had the immediate effect of repealing 

jurisdiction “not just over detainee habeas actions yet to be 

filed but also over any such actions then pending in any 

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

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

applied traditional rules of statutory construction to draw “the 

negative inference that Congress did not intend to eliminate 

jurisdiction over pending detainee habeas petitions where the 

statute was silent about whether its jurisdiction-stripping 

subsection applied to cases even though it expressly made 

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

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

rejected the theory that “jurisdiction-stripping provisions 
34

automatically apply retroactively absent an express 

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

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

The Antiterrorism and Effective Death Penalty Act of 

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

subsection setting forth “certificate of appealability” 

requirements governing the right to appeal in the habeas 

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

petitioner filed his habeas petition before AEDPA’s effective 

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

order dismissing the petition) were filed after the legislation 

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

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

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

answering this question, the Slack Court took into account its 

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

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

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

granted with respect to any claim adjudicated on the merits in 

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

unreasonable application, of clearly established federal law or 

was based on an unreasonable factual determination) did not 

apply to habeas applications that were already pending when

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

rules of statutory construction, the Lindh Court drew a 

negative implication from an AEDPA provision stating that a 

different part of the legislation (applicable in the capital 

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

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

implicitly that the amendments to chapter 153 were assumed 
35

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

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

The Supreme Court, however, rejected Slack’s assertion that 

Lindh meant that § 2253(c) did not apply to him because he 

commenced his case in the district court before AEDPA’s 

enactment. Slack, 529 U.S. at 481. “[T]he [Lindh] Court 

held that AEDPA’s amendments to 28 U.S.C. § 2254, the 

statute governing entitlement to habeas relief in the district 

court, applied to cases filed after AEDPA’s effective date.” 

Id. (citing Lindh, 521 U.S. at 327). “For purposes of 

implementing the holding in Lindh, it must be recognized that 

§ 2254 is directed to proceedings in the district courts while § 

2253 is directed to proceedings in the appellate courts.” Id. 

In other words, because § 2254 is directed to proceedings in 

the district courts, it applies to cases filed in the district court 

after AEDPA. Id. Section 2253 is directed to appellate 

proceedings, and it thereby applies to appellate proceedings 

initiated post-AEDPA even if the habeas petition itself was 

filed before the effective date of this legislation. Id. 

Although Lindh requires the court of appeals to apply preAEDPA law in reviewing the district court’s ruling for cases 

commenced in the district court pre-AEDPA, the Supreme 

Court concluded that post-AEDPA law “governs the right to 

appeal in cases such as the one now before us.” Id.

The Slack Court further explained that:

While an appeal is a continuation of the 

litigation started in the trial court, it is a distinct 

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

Engelhard & Sons Co., [266 U.S. 131] (1924). 
36

We have described proceedings in the courts of 

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

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

Federal Rules of Appellate Procedure “shall 

govern all proceedings in appellate cases 

thereafter commenced”). Under AEDPA, an 

appellate case is commenced when the 

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

at 241]. When Congress instructs us (as Lindh

says it has) that application of a statute is 

triggered by the commencement of a case, the 

relevant case for a statute directed to appeals is 

the one initiated in the appellate court. Thus, § 

2253(c) governs appellate court proceedings 

filed after AEDPA’s effective date. We see no 

indication that Congress intended to tie 

application of the provisions to the date a 

petition was filed in the district court. The 

COA statute establishes procedural rules and 

requires a threshold inquiry into whether the 

circuit court may entertain an appeal. [Id. at 

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

Slack sought appellate review two years after 

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

right to appeal.
37

Id. at 481-82.5

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

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

because the legislation is supposedly directed to proceedings 

in the Third Circuit, it would purportedly then apply to 

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

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

controlling in the present circumstances. Initially, the 

Supreme Court was not confronted with an express provision 

stating that amendments would apply to “cases commenced” 

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

accordingly did not discuss whether there may be a

meaningful difference between such an open-ended and 

unmodified provision and a provision that refers, for instance, 

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

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

that fee revision amendments apply to “cases commenced on 

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

which an appeal is perfected on or after the date of 

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

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

 5

 The Supreme Court in Slack noted that the petitioner 

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

he had filed his habeas petition before AEDPA’s effective 

date. Slack, 529 U.S. at 482. “Though our opinion did not 

discuss whether § 2253(c) applied to Hohn, we would have 

had no reason to reach the issue we did resolve, that we had 

statutory certiorari jurisdiction to review the denial of a COA, 

if AEDPA did not apply at all.” Id.
38

cases (and the Supreme Court accordingly turned to a 

provision stating that a different chapter of this habeas 

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

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

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

jurisdiction and confer such jurisdiction on another court. In

contrast, we must give effect to a statutory provision stating 

that amendments stripping us of certiorari jurisdiction (and 

vesting certiorari jurisdiction in the Supreme Court) apply to 

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

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

and dissimilar language in other related contexts, and prior 

case law all weigh in favor of reading this statutory provision 

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

Court”—and we do not believe that the Supreme Court’s 

ruling in Slack alters our conclusion.

We likewise reject the Government’s assertion that the 

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

Supreme Court of the United States assumes exclusive 

jurisdiction over certiorari petitions filed after December 28, 

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

Jurisdiction Brief at 4.) We acknowledge that Congress 

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

of this Court recommended to the Third Circuit Judicial 

Council that Congress eliminate our certiorari jurisdiction 

over Virgin Islands Supreme Court decisions in favor of

direct review by the United States Supreme Court” because 

the new court had succeeded in developing sufficient 

institutional traditions to justify such direct review. Kendall 

I, 716 F.3d at 86 (citation omitted). In other words, the court 
39

created by the Virgin Islands Legislature passed its test “with 

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

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

reason for us to review decisions by the Virgin Islands 

Supreme Court would indicate that we should also lose 

jurisdiction even where the certiorari petition was filed or 

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

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

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

explicit provision making it clear that its jurisdiction-stripping 

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

enactment date. We accordingly have already determined 

that we retain jurisdiction with respect to proceedings in 

which the certiorari petitions were either granted or filed 

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

certiorari petitions before December 28, 2012, parties who 

were in the midst of litigating a proceeding in the Virgin 

Islands courts could have reasonably expected that they 

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

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

review with respect to questions of Virgin Islands law (which 

would otherwise not be available in the Supreme Court). 

After all, the Government and the Union commenced their 

respective Virgin Islands Superior Court actions in 2011, and 

the Virgin Islands Supreme Court, in turn, did not render its 

own decision until November 2012. We find it improbable 

that H.R. 6116 was ever meant to strip this Court of certiorari 

jurisdiction when the enactment date of this legislation fell 
40

right in the middle of the applicable time period for filing a 

certiorari petition with this Court.6

 

 6 Likewise, we must reject the Government’s theory 

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

the Supreme Court and this Court possessing concurrent 

jurisdiction. On the contrary, “we retain certiorari 

jurisdiction over all cases ‘commenced’ before the President 

signed H.R. 6116,” Kendall I, 716 F.3d at 88 (citation 

omitted), and we now conclude that such cases include 

proceedings commenced in the Virgin Islands courts before 

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

jurisdiction over such cases. For “cases commenced” on or 

after this date, the Supreme Court possesses exclusive 

certiorari jurisdiction.
41

 

We have also considered the various contentions 

regarding H.R. 6116 proffered by the Virgin Islands Supreme 

Court in its amicus curiae brief. However, we reject its 

critique of our interpretation of this federal statute. For 

instance, we purportedly “distinguished the Santos case by 

stating that, shortly thereafter, the U.S. Supreme Court, in 

[Hamdan], ‘rejected the theory that jurisdiction-stripping 

provisions apply retroactively in the absence of an express 

reservation for pending cases,’ and thus implicitly rejected the 

reasoning of Santos.” (Amicus Curiae Brief at 20 (quoting 

UIW-SIU, 746 F.3d at 125).) According to the Virgin Islands 

Supreme Court, our reading of Hamdan is incorrect because 

the Supreme Court endorsed the reasoning in Santos in 

Limtiaco v. Camacho, 549 U.S. 482 (2007), a post-Hamdan

proceeding from the Guam Supreme Court. However, it was 

the Kendall I Court that disposed of Santos based on the 

Supreme Court’s ruling in Hamdan: “To the extent that 

Santos interprets Supreme Court precedent as holding that 

jurisdiction-stripping provisions automatically apply 

retroactively absent an express reservation of jurisdiction over 

pending cases, the Supreme Court subsequently rejected such 

an approach in Hamdan. See Hamdan, [548 U.S. at 584] 

(rejecting this ‘inflexible’ rule advanced by Justice Scalia’s 

dissent and by the Government).” Kendall I, 716 F.3d at 87. 

We further explained in Kendall I that, “[m]ore importantly, 

the jurisdiction-stripping provision in Santos differs markedly 

from the one we confront here” because the Ninth Circuit 

“addressed a statute in which Congress was completely silent 

about the effective date of the jurisdiction-stripping 

provision.” Id. (citing Santos, 436 F.3d at 1053). In contrast, 
42

B. Mootness

Even though we thereby retain certiorari jurisdiction 

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

petition as moot because of Bason’s death.

Federal courts generally lack jurisdiction whenever 

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

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

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

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

2003)). The mootness determination implicates an intensely 

factual inquiry requiring the court to assess whether it could 

award meaningful relief despite changing circumstances. 

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

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

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

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

 

Congress used explicit language providing that “H.R. 6116’s 

amendments apply only ‘to cases commenced on or after the 

date of the enactment.’” Id. at 88. In any event, the Limtiaco

Court did not address (or even mention) the existence of an 

express reservation rule for jurisdiction-stripping statutes 

(and, on the contrary, it addressed, inter alia, the distinct 

question of “whether the filing of a petition for certiorari or 

the pendency of a writ of certiorari before the Court of 

Appeals suspended the finality of the Guam Supreme Court’s 

judgment for purposes of the 90-day period [to file a petition 

for certiorari with the Supreme Court] set out in [28 U.S.C.] § 

2101(c)),” Limtiaco, 549 U.S. at 487). 
43

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

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

notes, an otherwise lawful order does not become moot 

merely because changes in circumstances indicate that the 

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

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

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

cessation of the allegedly unlawful conduct on the part of the 

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

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

(stating that party claiming voluntary compliance carries 

formidable burden of showing that it is absolutely clear that 

allegedly wrongful conduct could not reasonably be expected 

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

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

however, generally do not become moot when the individual 

parties resolve the specific matter that gave rise to the dispute 

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

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

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

the dismissal of an action on mootness grounds requires the 

defendant to demonstrate that ‘there is no reasonable 

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

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

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

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

‘capable of repetition yet evading review’ doctrine permits 

consideration of a case that ‘would otherwise be deemed 

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

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

(2) there is a reasonable expectation that the same 
44

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

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

94).

We do not believe that the current certiorari 

proceeding falls under the “capable of repetition yet evading 

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

forecloses review of Virgin Islands Supreme Court decisions 

on questions of Virgin Islands law, and any future 

reinstatement issue that may arise between the Union and the 

Government thereby will forever evade review. A statute 

stripping a federal circuit court of certiorari jurisdiction over 

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

the Supreme Court with certiorari jurisdiction at least with 

respect to questions of federal law) does not appear to 

represent the type of occurrence that could implicate this 

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

retain certiorari jurisdiction with respect to proceedings that 

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

date of enactment, including the proceedings filed by the 

Union and the Government in 2011. Furthermore, it is 

Bason’s death that moots the current certiorari proceeding, 

and this unfortunate and seemingly unexpected occurrence 

does not render this case capable of repetition yet evading 

review. Cf., e.g., Compassion in Dying v. Washington, 79 

F.3d 790, 796 n.4 (9th Cir. 1996) (en banc) (“We would think 

that a distinction could reasonably be drawn between the 

terminally ill, all of whom necessarily will die prior to 

completion of the litigation, and those whose cases become 

moot for more mundane or less predictable reasons.”), rev’d 
45

on other grounds sub nom. Washington v. Glucksberg, 521 

U.S. 702 (1997).

The Union vigorously contends that it is the real party 

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

union’s interest may extend beyond merely protecting the 

rights of an allegedly injured employee and that it accordingly 

may have a right to advocate on behalf of other similarly 

situated members as well as the collective bargaining unit as a 

whole. In American Federation of Government Employees, 

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

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

Government Employees (“AFGE”) sought review of a 

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

holding “that the credentials committee of an Army hospital 

about to conduct a hearing to consider adverse information 

relating to the medical procedures and proficiency of a 

certified ophthalmologist employed at the hospital did not 

commit an unfair labor practice when it refused the 

employee’s request to have his union representative with him 

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

his position and died a short time after the hospital 

commander had adopted the committee’s recommendations to 

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

union to pursue an unlawful labor practice action:

This controversy is not mooted by Dr. Hanna’s 

death. As exclusive representative of Dr. 

Hanna’s bargaining unit, AFGE has a derivative 

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

at an examination reasonably believed by the 
46

employee potentially to result in disciplinary 

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

Union itself has standing to contest the denial of 

representation as an unfair employment 

practice. Available remedies may include a 

cease and desist order or the posting of an 

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

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

1985).

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

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

was not acting as exclusive representative at oral reply stage 

of disciplinary proceedings on grounds that union sought to 

vindicate employees’ individual interests as well as 

bargaining unit’s broader interest in proper administration of 

collective bargaining agreement and likewise rejecting 

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

alleged destruction of certain documents because whether 

agency committed unfair labor practice in refusing to produce 

documents was unaffected by whether agency later destroyed 

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

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

indicating that an agency has been found to have committed 

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

committing such practices in the future. An order requiring 

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

union] an as yet unrealized remedy for the alleged unfair 

labor practice.” (citation omitted)).
47

Furthermore, it is well established that, even though 

the death of a former employee may moot a reinstatement 

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

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

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

[discrimination] claims because the claim for back pay and 

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

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

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

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

[NLRB] order [requiring reinstatement with full 

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

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

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

pay suffered by him”).

Nevertheless, the current certiorari proceeding presents 

this Court with an unusual and even unique set of 

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

order and opinion was entirely premised on the notion of 

reinstatement, and it would have dismissed the Government’s 

appeal if the Virgin Islands Superior Court had never ordered 

Bason’s immediate reinstatement. In its submission on 

mootness, the Union quotes the Virgin Islands Supreme 

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

arbitrator and the Superior Court from mandating that the 

Government reinstate Bason as an Assistant Attorney 

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

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

CBA] which permit reinstatement by an arbitrator of an 
48

Assistant Attorney General discharged without just cause can 

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

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

Specifically, the Virgin Islands Supreme Court concluded 

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

and Judgment mandating Bason’s reinstatement constituted 

an appealable injunction, this Court possesses jurisdiction 

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

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

Islands Superior Court’s opinion and judgment to the extent 

that it directed the Government to reinstate Bason. However, 

the Virgin Islands Supreme Court also dismissed the appeal 

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

the Union that the parties’ disagreement as to the calculation 

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

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

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

Bason’s death clearly moots any reinstatement claim 

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

Scott sought injunctive and declaratory relief compelling the 

University to reinstate him and renew his contract, these 

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

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

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

reinstatement moot.”). Given the critical role that 

reinstatement played in the Virgin Islands Supreme Court’s 

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

its decision at this juncture. In other words, reinstatement 

represents the critical “hook” on which this entire certiorari 

proceeding rests, and, without it, “‘“the parties lack a legally 
49

cognizable interest in the outcome”’” of the certiorari 

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

omitted). The proceeding thereby involves more than either 

changed circumstances indicating that the need for an order 

may be less than when it was first entered or voluntary 

compliance on the part of the Government. Likewise, this 

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

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

reasonably believed by the employee potentially to result in 

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

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

claim is not before us because the Virgin Islands Supreme 

Court concluded that it lacked appellate jurisdiction over this 

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

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

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

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

Virgin Islands courts. If the Union (or the estate or the 

Government) does not prevail before the Virgin Islands 

courts, it then could file a certiorari petition with us (and, as 

we have explained, H.R. 6116 would not strip us of 

jurisdiction over such a petition).

Therefore, we will dismiss the certiorari petition filed 

by the Union. In addition, we will vacate the Virgin Islands 

Supreme Court’s order and opinion and will remand with 

instructions to the Virgin Islands Supreme Court to vacate the 

portions of the Virgin Islands Superior Court’s judgment and 

opinion that addressed the issue of reinstatement. The 

Supreme Court has explained that “[t]he established practice 

of the Court in dealing with a civil case from a court in the 
50

federal system which has become moot while on its way here 

or pending our decision on the merits is to reverse or vacate 

the judgment below and remand with a direction to dismiss.” 

Munsingwear, 340 U.S. at 39 (footnote omitted). 

Accordingly, our normal practice is to vacate the district court 

judgment when a civil case becomes moot on appeal. See 

also, e.g., Lightner v. 1621 Route 22 W. Operating Co., 729 

F.3d 235, 237 (3d Cir. 2013). While this proceeding does not 

come to us from a district court, we believe that this general 

rule applies with respect to our certiorari jurisdiction over 

decisions by the Virgin Islands Supreme Court. 7

 Insofar as 

 7 According to the Virgin Islands Supreme Court, this 

Court lack supervisory authority over the Virgin Islands 

judiciary, and the Munsingwear rule thereby does not apply in 

the present circumstances. As the Union points out, it 

appears that the Supreme Court has, on more than one 

occasion, vacated the underlying state court judgment (and 

remanded for further proceedings) after the case became 

moot. See DeFunis v. Odegaard, 416 U.S. 312, 320 (1974) 

(“Accordingly, the judgment of the Supreme Court of 

Washington is vacated, and the cause is remanded for such 

proceedings as by that court may be deemed appropriate.”); 

Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach 

Emps., Div. 998 v. Wis. Emp. Relations Bd., 340 U.S. 416, 

418 (1951) (“It appearing that the cause has become moot, the 

judgment of the Supreme Court of Wisconsin is vacated 

without costs and the cause is remanded for such proceedings 

as by that court may be deemed appropriate.”); see also, e.g., 

Massachusetts v. Oakes, 491 U.S. 576, 585 (1989) (plurality 

opinion) (“When the sole question on which we granted 
51

 

certiorari has become moot, our usual course, in cases coming 

to us from state courts when part of the dispute remains alive, 

is to vacate the judgment below and remand for further 

proceedings.” (citing DeFunis, 416 U.S. at 584)). 
52

 

However, we need not—and do not—decide the 

specific question of whether the Munsingwear rule generally 

applies in the state court context. In short, our relationship 

with the Virgin Islands Supreme Court differs from the 

relationship that exists between the Supreme Court and state 

courts. “Our Court has had a significant role in overseeing 

the Virgin Islands Supreme Court.” Defoe, 702 F.3d at 742 

(citing § 1613; Pichardo, 613 F.3d at 100 n.11). Under the 

pre-amended version of § 1613, the relations between this 

Court and the Virgin Islands judiciary “shall be governed by 

the laws of the United States pertaining to the relations 

between the courts of the United States, including the 

Supreme Court of the United States, and the courts of the 

several States”—with one major exception—“Provided, That 

for the first fifteen years following the establishment of the 

appellate court authorized by section 1611(a) of this title, the 

United States Court of Appeals for the Third Circuit shall 

have jurisdiction to review by writ of certiorari all final 

decisions of the highest court of the Virgin Islands from 

which a decision could be had.” While H.R. 6116 may have 

stricken this certiorari jurisdiction language, he have already 

concluded in this opinion that we retain certiorari jurisdiction 

over proceedings that were filed in the Virgin Islands courts 

before the date of enactment of H.R. 6116. Unlike the 

Supreme Court, our certiorari jurisdiction is not limited to 

questions of federal law, and we thereby retain jurisdiction 

over questions of Virgin Islands law. See, e.g., Defoe, 702 

F.3d at 743. “In other words, the [Virgin Islands] Supreme 

Court has assumed our erstwhile role as a final authority on 

territorial law, though with an important limitation: its 
53

Bason’s death prevents us from considering the merits of the 

Virgin Islands Supreme Court’s decision, we will “clear[] the 

path” for future relitigation of the issues between the parties, 

eliminate a judgment that could not be reviewed due to 

happenstance, and ensure that the parties are “not prejudiced 

by a decision which in the statutory scheme was only 

preliminary.” Munsingwear, 340 U.S. at 40.

III.

 

decisions must not be manifestly erroneous or inescapably 

wrong.” Id. Given our special relationship with the Virgin 

Islands Supreme Court, we believe that it is appropriate to 

clear the proverbial path for future relitigation and eliminate a 

judgment that has become unreviewable by mere 

happenstance. See, e.g., Munsingwear, 340 U.S. at 40. In 

fact, it appears that a failure to take such a step would unfairly 

prejudice the Union itself, which—but for Bason’s untimely 

death—would have evidently obtained review on the merits 

of the Virgin Islands Supreme Court’s decision in this 

certiorari proceeding. See, e.g., Camreta, 131 S. Ct. at 2035-

36 (“In this case, the happenstance of S.G.’s moving across 

country and becoming an adult has deprived Camreta of his 

appeal rights. Mootness has frustrated his ability to challenge 

the Court of Appeals’ ruling that he must obtain a warrant 

before interviewing a suspected child abuse victim at school. 

We therefore vacate the part of the Ninth Circuit’s opinion 

that addressed that issue, and remand for further proceedings 

consistent with this opinion.” (footnote omitted) (citations 

omitted)). 
54

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

certiorari petition as moot. We also will vacate the Virgin 

Islands Supreme Court’s order and opinion and will remand 

with instructions to the Virgin Islands Supreme Court to 

vacate the portions of the Virgin Islands Superior Court’s 

judgment and opinion that addressed the issue of 

reinstatement.