Victoria Vooys v. Maria Bentley , 901 F.3d 172 ( 2018 )


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  •                                        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.
    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
    2
    ___________________
    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].
    3
    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.
    4
    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
    5
    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 Danish-
    American 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.
    6
    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).
    7
    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.
    8
    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.
    9
    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.
    10
    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
    11
    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
    12
    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.
    13
    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
    14
    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.
    15
    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.
    16
    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.”).
    17
    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)).
    18
    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).
    19
    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
    .
    20
    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.
    21
    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).
    22
    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))
    23
    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.
    24
    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).
    25
    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”).
    26
    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.
    27
    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
    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
    on or after the date of the enactment of this section.”
    28
    conclusion was insufficiently 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],
    (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).
    29
    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).
    30
    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).
    31
    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.
    32
    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
    ).
    33
    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 jurisdiction-
    stripping       (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
    .
    34
    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)
    35
    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)).
    36
    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.
    37
    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 fifteen-
    year 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).”).
    38
    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
    39
    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
    ).
    40
    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.134
    132
    Bason, 767 F.3d at 210.
    133
    Third Circuit Judicial Council Report, supra note
    51, at 23.
    41
    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 judg-
    ments 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 is the entire civil action, not just the certiorari stage.
    As the majority’s legislative survey illustrates, Congress dis-
    tinguishes 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 stat-
    ute that would preserve our jurisdiction beyond “fifteen years
    following the establishment” of the Supreme Court of the Vir-
    gin 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.
    

Document Info

Docket Number: 16-3912

Citation Numbers: 901 F.3d 172

Filed Date: 8/21/2018

Precedential Status: Precedential

Modified Date: 1/12/2023

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