Anchorage Associates v. Virgin Islands Bd. of Tax Review
| Decision Date | 14 December 1990 |
| Docket Number | No. 89-3742,89-3742 |
| Citation | 922 F.2d 168 |
| Parties | ANCHORAGE ASSOCIATES, Tamarind Associates, Patricia Blacker, Michael and Eileen Brower, Archie and Eileen Duguid, Michael Albarelli, et al. v. VIRGIN ISLANDS BOARD OF TAX REVIEW and Tax Assessor, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Godfrey R. de Castro, Atty. Gen., Rosaline Simmonds Ballentine, Sol. Gen., Jesse P. Goode (argued), Asst. Atty. Gen., Dept. of Justice, Charlotte Amalie, St. Thomas, V.I., for appellants.
Maria Tankenson Hodge, P.C., Maria Tankenson Hodge, Denise Francois (argued), St. Thomas, V.I., for appellees.
Before SLOVITER, STAPLETON, and HUTCHINSON, Circuit Judges.
I.
This is an appeal from an order of the district court of the Virgin Islands granting relief from a challenged real estate tax assessment. Appellee, Anchorage Associates ("Anchorage"), moved for a summary judgment after the Virgin Islands Tax Review Board ("the Board") allegedly violated Anchorage's right to due process. When the Board and the Tax Assessor of the Virgin Islands ("the Tax Assessor") failed to respond to the taxpayer's motion, the district court deemed it conceded pursuant to Rule 6(i) 1 of its local rules and granted the requested relief. The Board argues that the district court was without jurisdiction to enter the contested order. Alternatively, the Board maintains that even if the district court had jurisdiction, it abused its discretion in entering the order without a hearing and without consideration of the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984).
We conclude that the district court did have jurisdiction to enter the challenged order. However, we hold that the district court could not properly enter summary judgment in favor of Anchorage based solely on Rule 6(i) and without a determination that Anchorage was entitled to judgment as a matter of law based on the facts set forth in the motion. The district court record gives no indication that the court made such a determination. Accordingly, we will vacate the district court's order and remand for further proceedings.
II.
We have jurisdiction over this appeal from a final order of the district court. 28 U.S.C. Sec. 1291. Whether the district court had subject matter jurisdiction is a question of law subject to plenary review. Medical Fund-Philadelphia Geriatric Center v. Heckler, 804 F.2d 33, 36 (3d Cir.1986). The issue presented by the district court's application and interpretation of its Rule 6(i) is also one over which we exercise plenary review. See Dent v. Cunningham, 786 F.2d 173, 175 (3d Cir.1986) ().
III.
This case presents a remarkable record of delay and institutional incompetence. Anchorage, a group of condominium owners, properly challenged their 1981 tax assessments by paying those assessments and filing a refund petition in 1982. See 33 V.I.C. Sec. 2451(a). After a hearing, the Board of Tax Review directed Anchorage to resolve as many issues as possible with the Tax Assessor. The parties reached agreement on many, but not all, of the disputed assessments. Anchorage then returned to the Board seeking resolution of the remaining claims. In July of 1984, after a second hearing, the Board denied Anchorage's refund petition. The Board's order was not restricted to those taxpayers with unresolved disputes. It applied as well to those who had settled their differences with the Tax Assessor. Anchorage then petitioned the district court for a writ of review pursuant to 33 V.I.C. Sec. 2453(c). 2 The district court granted the writ in September of 1984, and directed the Board to furnish the court with a transcript of the second hearing.
Nearly two years later, with no transcript to review, the district court ordered the Board to provide a transcript of the hearing within twenty days of the court's order. Over three months later, the court again ordered the Board to supply a transcript. Still, the Board failed to respond. On January 29, 1987, the court for the fourth time ordered the Board to provide a transcript.
In late February of 1987, the Board filed its first responsive document with the district court. The Board declared that it lacked the funds to create a transcript. As an alternative, it asked the court to remand to the Board for a new hearing. On March 27, 1987, the court granted the motion over Anchorage's objection. Six months later, with no hearing yet held, Anchorage moved the court for reconsideration of its remand order. The court ordered the Board to hold the hearing no later than January 15, 1988.
The Board did not schedule a hearing until May 25, 1989. At that time, Anchorage requested a short continuance because its chief witness was temporarily away from the Islands. The Board refused the request and conducted a closed door hearing that day. Its decision denying relief was released on June 13, 1989, seven years after the filing of the refund petition. The Board never informed the district court of that decision.
On June 6, 1989, after the closed hearing, but before a decision had been rendered by the Board, Anchorage filed a motion for the entry of judgment in its favor. The motion recounted the years of delay in the proceeding before the Board and alleged that the May 25, 1989, hearing was held in violation of the court's order as well as the Virgin Island statute requiring the Board to conduct its meetings in public. The motion asserted that Anchorage was entitled to summary judgment because the failure to provide a reasonable process for determining its right to recoup the taxes extracted from it violated Anchorage's right to due process of law.
The Board never responded to Anchorage's motion and on October 6, 1989, the district court entered judgment in favor of Anchorage. The district court's order declared that the motion for judgment was deemed conceded because the Board and the Tax Assessor had filed no answer or opposition. The Board appeals from that order.
IV.
The Virgin Islands Code provides that a taxpayer can petition the district court for a writ of review of a decision of the Board. After conducting a review, the district court can "modify, reverse, or affirm the decision of the Board of Tax Review." 33 V.I.C. Sec. 2453(c). Anchorage properly filed a petition for review in the district court and that court properly agreed to review the Board's July 1984 order declining to grant relief from the assessments and, accordingly, denying the refunds sought by Anchorage.
The Board argues, however, that the order remanding the matter to the Board for a new hearing divested the district court of jurisdiction. The Board analogizes that order to a district court order remanding a previously removed diversity matter to the state courts. In that circumstance, the district court loses jurisdiction over the case. See Three J. Farms, Inc. v. Alton Box Board Co., 609 F.2d 112 (4th Cir.1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980).
The analogy fails. The cases the Board cites interpret and rely on the language of the removal statute, 28 U.S.C. Sec. 1447(d), which provides that a district court order "remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise...." As the Ninth Circuit Court of Appeals has noted, Seedman v. United States District Court for the Cent. Dist. of California, 837 F.2d 413, 414 (9th Cir.1988). See also Three J. Farms, 609 F.2d at 115 (). This rationale is inapplicable to the present case.
In this case, the district court granted the writ of review in September of 1984, but was unable to review the Board's order because the Board was unwilling or unable to provide a transcript. As a result, at the time of the district court's remand order in March of 1987, the district court had not yet considered whether Anchorage was entitled to relief from the Board's order of July 1984 and had not entered an order of its own modifying, reversing or affirming the Board's order of July 1984. Indeed, the Board's July 1984 order remained outstanding until October of 1989 when the district court entered the final order from which the Board now appeals.
In order to remedy the situation created by the Board's default and put itself in a position to give Anchorage the judicial review to which it was entitled under the statute, the district court granted the Board's motion to remand for further proceedings and subsequently entered an order setting a specific timetable for those proceedings. Under these circumstances, we believe that the district court retained jurisdiction to oversee compliance with its mandates and thereafter to provide Anchorage with the judicial review to which it was entitled.
The situation which confronted the district court in the summer of 1987 was much like the one before the Supreme Court in Ford Motor Co. v. NLRB, 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221 (1939). In that case, the NLRB filed a petition in the court of appeals for enforcement of an unfair labor practice order. When the employer filed a cross-petition for review of that order, the NLRB asked the court to remand so that it could conduct further curative proceedings. The court of appeals granted the Board's motion to remand and the Supreme Court granted...
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