Pomper v. Thompson, No. 86-3162

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SEITZ, HIGGINBOTHAM and ROSENN; PER CURIAM
Citation836 F.2d 131
PartiesUnempl.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.
Decision Date29 December 1987
Docket NumberNo. 86-3162

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.

Page 132

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.

Page 133

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).

...

To continue reading

Request your trial
17 practice notes
  • U.S. v. Touby, Nos. 89-5604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 1990
    ...denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988), as well as the jurisdiction of the court under review. Pomper v. Thompson, 836 F.2d 131, 132 (3d When constitutional questions are at issue, "the availability of judicial review is presumed and [courts] will not read a statutory s......
  • Shendock v. Director, Office of Workers' Compensation Programs, No. 88-3335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 12, 1990
    ...going to the very power to adjudicate, the court must consider the delay sua sponte and apply the statute strictly. In Pomper v. Thompson, 836 F.2d 131 (3d Cir.1987), we determined that the district court lacked authority to hear an appeal from an administrative agency filed two weeks after......
  • Lavallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Com'n, No. 88-3247
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 27, 1989
    ...properly taken into account here and provide firm support for the district court's interpretation of the statute. See Pomper v. Thompson, 836 F.2d 131, 133-34 (3d Cir.1987) (statutes should be construed to give effect to every In addition, a recognized tenet of statutory interpretation dire......
  • Guild and Gallery Plus, Inc., In re, No. 95-5295
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 1996
    ...court must satisfy itself not only of its own jurisdiction, but also of the jurisdiction of the courts under review." Pomper v. Thompson, 836 F.2d 131, 132 (3d Cir.1987) (per curiam) (citing Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934)). "[W]e cannot ignore matters th......
  • Request a trial to view additional results
17 cases
  • U.S. v. Touby, Nos. 89-5604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 1990
    ...denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988), as well as the jurisdiction of the court under review. Pomper v. Thompson, 836 F.2d 131, 132 (3d When constitutional questions are at issue, "the availability of judicial review is presumed and [courts] will not read a statutory s......
  • Shendock v. Director, Office of Workers' Compensation Programs, No. 88-3335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 12, 1990
    ...going to the very power to adjudicate, the court must consider the delay sua sponte and apply the statute strictly. In Pomper v. Thompson, 836 F.2d 131 (3d Cir.1987), we determined that the district court lacked authority to hear an appeal from an administrative agency filed two weeks after......
  • Lavallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Com'n, No. 88-3247
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 27, 1989
    ...properly taken into account here and provide firm support for the district court's interpretation of the statute. See Pomper v. Thompson, 836 F.2d 131, 133-34 (3d Cir.1987) (statutes should be construed to give effect to every In addition, a recognized tenet of statutory interpretation dire......
  • Guild and Gallery Plus, Inc., In re, No. 95-5295
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 1996
    ...court must satisfy itself not only of its own jurisdiction, but also of the jurisdiction of the courts under review." Pomper v. Thompson, 836 F.2d 131, 132 (3d Cir.1987) (per curiam) (citing Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934)). "[W]e cannot ignore matters th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT