Pomper v. Thompson

• Decision Date: 29 December 1987
• Docket Number: No. 86-3162,86-3162
• Citation: 836 F.2d 131
• Parties: Unempl.Ins.Rep. CCH 21,883 Sander Y. POMPER, Janet George, Virgin Islands Employment Security Agency, Government of the Virgin Islands v. Rudy & Sheila THOMPSON d/b/a Rudy Thompson Real Estate; St. Thomas Board of Realtors. Appeal of Rudy and Sheila THOMPSON d/b/a Rudy Thompson Real Estate.
• Court: U.S. Court of Appeals — Third Circuit

Page 131

836 F.2d 131

Unempl.Ins.Rep. CCH 21,883

Sander Y. POMPER, Janet George, Virgin Islands Employment

Security Agency, Government of the Virgin Islands v. Rudy & Sheila THOMPSON d/b/a Rudy Thompson Real Estate; St.

Thomas Board of Realtors.

Appeal of Rudy and Sheila THOMPSON d/b/a Rudy Thompson Real Estate.

No. 86-3162.

United States Court of Appeals, Third Circuit.

Argued April 30, 1987.

Decided Dec. 29, 1987.

Deborah Butler (argued), Arthur Pomerantz, Law Offices of Arthur Pomerantz, Charlotte Amalie, St. Thomas U.S. Virgin Islands, for appellants.

Edward A. Wascoe (argued), Charlotte Amalie, St. Thomas U.S. Virgin Islands, for appellees.

Before SEITZ, HIGGINBOTHAM and ROSENN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

This appeal presents an important issue arising under the Virgin Island's Unemployment Insurance Act, V.I.Code Ann. tit. 24, Secs. 301-319 (1970 & Supp.1986) (the "Act"). We are asked to determine whether under the Act certain real estate sales agents are independent contractors, or whether their service constitutes "employment" within the meaning of V.I.Code Ann. tit. 24, Sec. 302(k)(5) (1970). If they are employees, then their supervising real estate broker must, as an employer, pay unemployment insurance taxes to the Unemployment Insurance Subfund under V.I.Code Ann. tit. 24, Sec. 308 (1970).

As well as being significant, this issue has been extensively heard. On December 12, 1983, the Virgin Islands Employment Security Agency ("VIESA") sent Rudy and Sheila Thompson a notice of the agency's determination that the Rudy Thompson Real Estate sales agents performed employment covered by the Act. The decision required the Thompsons to pay unemployment insurance contributions from January 1, 1978. On March 1, 1984, a VIESA hearing examiner affirmed the determination. The Thompsons filed a petition for judicial review of the ruling with the district court on March 30, 1984, twenty-nine days after VIESA mailed a copy of its decision to them. The district court affirmed VIESA's ruling on January 22, 1986, but it altered the determination by requiring the Thompsons to make unemployment insurance contributions only as of December 12, 1983, the date on which the agency had announced its determination. The Thompsons then appealed to this Court. They challenge VIESA's determination that real estate agents working at Rudy Thompson Real Estate perform employment within the meaning of the Act and claim that if the agents are covered by the Act, contributions would be owed only as of January 22, 1986, the date of the district court's decision. Unfortunately, we are unable to resolve these substantial issues. Because the Thompsons' petition for review by the district court was not timely, we must dismiss their appeal to this Court for lack of jurisdiction.

An appellate court must satisfy itself not only of its own jurisdiction, but also of the jurisdiction of the courts under review. Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934). Where statutory appeals periods are at issue, the Court is required to notice them sua sponte. de la Fuente v. Central Elec. Co-op., Inc., 703 F.2d 63, 64 n. 1 (3d Cir.1983) (citing Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S 694, 701, 102 S.Ct. 2099, 2103, 72 L.Ed.2d 492 (1982)). Courts have uniformly held that the limits on the taking of an appeal are mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960); Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084, 1085 (3d Cir.1972) (in banc ) ("[t]he [Fed.R.App.P. 4(a) ] thirty day period for taking an appeal is mandatory and jurisdictional, Fitzsimmons v. Yeager, 391 F.2d 849 (3d Cir.1968), cert. denied, 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 137 (1968)."); Rawlings v. Government Employees' Serv. Comm'n, 20 V.I. 224 (D.V.I.1983) (district court lacks jurisdiction to entertain review petition after thirty day appeal period has expired), aff'd without published opinion, 735 F.2d 1350 (3d Cir.1984) (table); Benjamin v. Government Employees Serv. Comm'n, 1978 St.T.Supp. 315 (D.V.I.1978) (district court lacks jurisdiction to entertain review petition after thirty day appeal period has expired).

That the Thompsons did not file within the statutory time limit for judicial review of VIESA's determination is unquestionable. The Act provides that VIESA's decision whether the service at issue is employment becomes final "unless, within 15 days after the decision was mailed ... [the employing unit] initiates judicial review...." V.I.Code Ann. tit. 24, Sec. 307(a)(5) (1970). The same fifteen days appeals period applies to VIESA's decisions regarding delinquent and contested contributions under V.I.Code Ann. tit. 24, Sec. 309(g) (1970). ¹ Appellants seem to argue that Secs. 307(a)(5) and 309(g) are internally inconsistent and, therefore, cannot be applied. This is because, in addition to the fifteen day time limit, Sec. 307(a)(5) provides for "judicial review in accordance with the provisions of section 306(e)(1)," and Sec. 309(g) provides for "judicial review in accordance with section 306(e)." Section 306(e) establishes a thirty day period for initiating judicial review of employee unemployment benefits cases. The Virgin Islands legislature gave employees seeking to contest a denial of unemployment compensation, or to dispute the amount of compensation granted to them, fifteen more days than employers have to petition for review of VIESA's rulings. But Sec. 306(e)(1) also sets out the procedural steps and jurisdictional limitations governing the process of judicial review, and it is to these requirements that the two subsequent appeals provisions are referring. ² " 'The cardinal principle of statutory construction is to save and not to destroy.' ... It is our duty 'to give effect, if possible, to every clause and word of the statute'...." Zenith Radio Corp. v. Matushita Elec. Indus. Co., Ltd., 402 F.Supp. 244, 248 (E.D.Pa.1975) (quoting United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955)). Because Sec. 307(a) and Sec. 309(g) of the Act would be otherwise meaningless, we are obliged to give effect to their short fifteen day appeals period, in conjunction with the review procedures set forth in Sec. 306(e)(1).

Although there is a statutory limitation of fifteen days for filing a notice of appeal to the district court, the Thompsons filed their petition for review within the thirty day period prescribed in Sec. 306(e)(1) for employee unemployment insurance claims. Because the Act establishes a fifteen day period in which to petition for review of VIESA's final ruling and the appellants filed their petition on the twenty-ninth day, the district court had no jurisdiction to entertain the petition for review. The Thompsons' predicament, and that of this Court, which wishes to resolve this issue, must apparently be laid at the door of VIESA. When that agency sent the Thompsons a notice announcing its hearing examiner's affirmance of the determination of employee coverage, it did so on an erroneous form. The form contained pre-printed matter, including a paragraph conspicuously marked "APPEAL RIGHTS," which stated that the recipients had thirty days to file a petition for judicial review with the district court. We have no doubt that if the VIESA had not used a Sec. 306(e)(1) employee benefits claim form to communicate a decision concerning employer participation in the unemployment insurance program, the Thompsons' counsel would have filed the petition for review in timely fashion. It goes without saying that, since the district court could not rule on the merits of the status of the real estate agents for the purposes of the Unemployment Insurance Act, the issue remains open for judicial consideration...