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Vooys v. Bentley

United States Court of Appeals, Third Circuit

August 21, 2018

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

          Argued December 12, 2017 before Merits Panel

          Argued En Banc February 21, 2018

          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)

          Lee J. Rohn, Esq. Rhea R. Lawrence, Esq., Lee J. Rohn & Associates, LLC King Street Christiansted, Counsel for Plaintiffs-Respondents.

          Stephen L. Braga, Esq. Laura Cooley (Third Year Law Student), Tanner Russo (Third Year Law Student) Alaric Smith (Third Year Law Student) Cole A. Wogoman (Third Year Law Student) University of Virginia School of Law Appellate Litigation, Counsel for Defendants-Petitioners.

          Dwyer Arce, Esq., Kutak Rock, Farnam Street The Omaha Building Omaha, Edward L. Barry, Esq. Law Offices of Edward L. Barry, John-Russell B. Pate, Esq., St. Thomas, Counsel for Amicus Curiae Virgin Islands Bar Association.

          Andrew C. Simpson, Esq. Andrew C. Simpson Law Offices, Counsel for Amicus Curiae Companion Assurance Company.

          Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE, RESTREPO, BIBAS, and SCIRICA, [*] Circuit Judges.

          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 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 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. 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 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 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]

         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 neighboring New York.[20], [21]

         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 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]

         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 court[29]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 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 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," 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 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 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 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 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 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 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 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 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 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. Murphy[83] 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 controlling provision, was] directed to proceedings in the appellate courts."[87]

         Slack thus informs our resolution of the meaning of "cases commenced" in H.R. 6116. As the Court there explained, "[w]hen Congress instructs . . . that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court."[88] The Court further explained that "[w]hile an appeal is a continuation of the litigation started in the trial court, it is a distinct step. We have described proceedings in the courts of appeals as 'appellate cases.' Under AEDPA, an appellate case is commenced when the application for a COA is filed."[89]

         Similarly, H.R. 6116 was enacted to address certiorari review of decisions of the Supreme Court of the Virgin Islands. [90] The interpretation of "cases commenced" in H.R. 6116 must therefore focus on appellate cases-cases on certiorari review. Our analysis in Bason was unduly influenced by reliance on trial-level cases and trial-level process.[91] The resulting conclusion was insufficiently 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], 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:

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 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 ...


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