United Indus. ex rel. Bason v. Gov't of the Virgin Islands

Decision Date25 August 2014
Docket NumberNo. 13–1247.,13–1247.
Citation767 F.3d 193,61 V.I. 753
PartiesUNITED INDUSTRIAL, SERVICE, TRANSPORTATION, PROFESSIONAL AND GOVERNMENT WORKERS OF NORTH AMERICA SEAFARERS INTERNATIONAL UNION, On Behalf of Ernest BASON, Petitioner v. GOVERNMENT OF THE VIRGIN ISLANDS.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Petition dismissed. Namosha Boykin, Esq., (Argued), Amos W. Carty, Esq., Pedro K. Williams, Esq., for Petitioner.

Joss N. Springette, Esq., (Argued), Office of Collective Bargaining, St. Thomas, VI, for Respondent.

Anthony Michael Ciolli, Esq., Supreme Court of the Virgin Islands, St. Thomas, VI, for Amicus Curiae.

BEFORE: FISHER, COWEN and NYGAARD, Circuit Judges.

OPINION

COWEN, Circuit Judge.

This matter comes before us on a petition for a writ of certiorari filed by the United Industrial, Service, Transportation, Professional and Government Workers of North America Seafarers International Union (Union) on behalf of Ernest Bason, Esq., asking us to review a decision by the Virgin Islands Supreme Court. On December 28, 2012, the President signed H.R. 6116, “a bill that would eliminate our certiorari jurisdiction over final decisions of the Virgin Islands Supreme Court and replace it with direct review by the Supreme Court of the United States.” Kendall v. Daily News Publ'g Co., 716 F.3d 82, 86 (3d Cir.2013) (citation omitted) (“ Kendall I ”). We conclude that we retain certiorari jurisdiction over proceedings that were filed in the Virgin Islands courts before the date of enactment of H.R. 6116. Although we thereby still possess certiorari jurisdiction with respect to the proceedings filed by the Union and the Government of the Virgin Islands in the Virgin Islands Superior Court, we nevertheless must dismiss the Union's certiorari petition as moot. Accordingly, we cannot-and do not-reach the question of “whether title 24, section 374(a) of the Virgin Islands Code is harmonious with title 3, section 113(a) of the Virgin Islands Code.” We, however, will vacate the Virgin Islands Supreme Court's order and opinion and will remand with instructions to the Virgin Islands Supreme Court to vacate the portions of the Virgin Islands Superior Court's judgment and opinion that addressed the issue of reinstatement.

I.

Ernest F. Bason, Esq., was employed as an Assistant Attorney General with the Virgin Islands Department of Justice. Most Assistant Attorneys General, including Bason, were subject to a collective bargaining agreement, and the Union served as their exclusive bargaining representative. In a July 1, 2010 letter, the Virgin Islands Attorney General informed Bason that he intended to impose a suspension and to terminate his employment. The Union filed a grievance on Bason's behalf challenging this action. In a letter dated July 23, 2010, the Governor of the Virgin Islands accepted the Attorney General's recommendation and approved Bason's immediate termination. Withdrawing the previous grievance, the Union submitted a second grievance on behalf of Bason challenging the Governor's decision. The second grievance went to arbitration. On January 2, 2011, the Arbitrator entered an award determining that the underlying grievance was arbitrable and properly before him for resolution. He issued his final award and opinion on April 29, 2011, specifically finding that the Governor lacked just cause to remove Bason. In addition, the Arbitrator awarded the following remedy:

The Arbitrator awards the Grievant immediate reinstatement to his previous employment as an Assistant Attorney General and the immediate restoration of all emoluments associated with his employment as an Assistant Attorney General, including without limitation, all related benefits and seniority effective July 1, 2010 and back pay for the period between the termination of the Suspension imposed by the Attorney General in his June 7, 2010 letter to the Grievant (J-# 4) and the Employer's actual reinstatement of the Grievant to his employment as an Assistant Attorney General pursuant to this Award.

( Id.)

On May 9, 2011, the Government of the Virgin Islands filed a complaint in the Virgin Islands Superior Court (No. ST–11–CV–308). The Government asked the Virgin Islands Superior Court to vacate the arbitration award and to enter a declaratory judgment providing that the Virgin Islands Justice Department had no obligation to reinstate Bason. Acting on Bason's behalf, the Union filed its own complaint on June 7, 2011 (and the Government, in turn, filed a counterclaim) (No. ST–11–CV–364). The Union asked the Virgin Islands Superior Court to confirm the arbitration award. The Virgin Islands Superior Court consolidated the two cases. The parties filed summary judgment motions (and the Union also filed motions to dismiss and to confirm the arbitration award).

On December 13, 2011, the Virgin Islands Superior Court granted in part and denied in part the motions filed by the Union and the Government. In its judgment, the Virgin Islands Superior Court vacated the April 29, 2011 arbitration award “but only to the extent that it grants relief prior to July 23, 2010 and ordered “that judgment is entered in Case No. ST–11–CV–308 in favor of the Government on Count IV of its Verified Complaint to this extent only.” (A34.) It likewise entered judgment in the Government's favor as to Count IV of its counterclaim “to this extent only.” ( Id.) The Virgin Islands Superior Court confirmed the arbitration award “in all other respects” and thereby ordered judgment to be entered to this extent “in favor of the Union in Case No. ST–11–CV–364 on its Action to Confirm an Arbitration Award.” ( Id.) It was ordered, adjudged, and decreed that:

... Ernest F. Bason, Esquire is IMMEDIATELY REINSTATED as an assistant attorney general in the Virgin Islands Department of Justice, Office of the Attorney General, with the immediate restoration of all employment benefits, seniority, and other emoluments of employment effective July 23, 2010, and back pay from July 23, 2010 to the date of his actual reinstatement ...

( Id.)

In its accompanying opinion, the Virgin Islands Superior Court considered the Government's two theories for relief: (1) that the Arbitrator exceeded his authority when he ruled that the Union's grievance was timely filed; and (2) that “the arbitrator's decision to reinstate Attorney Bason violates the public policy that assistant attorneys general can be fired by the Governor without cause.” Gov't of the V.I. v. UIW–SIU, Nos. ST–11–CV–308, ST–11–CV–364, 2011 WL 6936479, at *3 (V.I.Super.Ct. Dec. 12, 2011). According to the Virgin Islands Superior Court, the Arbitrator exceeded his authority by granting any relief based on the July 1, 2010 letter (or a June 7, 2010 letter imposing a suspension) because the Union withdrew its grievance as to the July 1, 2010 action (and never filed a grievance with respect to the June 7, 2010 suspension). “Therefore, the award must be vacated to the extent that it awards any relief to Attorney Bason prior to July 23, 2010.” Id. at *5. With respect to the government's second theory, the Virgin Islands Superior Court concluded that [t]he arbitrator's decision to reinstate Bason is not contrary to Virgin Islands public policy.” Id. at *7 (emphasis omitted). “Therefore, the Court will confirm the immediate reinstatement of Ernest Bason, Esquire as an assistant attorney general with the Virgin Islands Department of Justice, Office of the Attorney General, with all benefits, seniority, and back pay retroactive to July 23, 2010.” Id. at *9.

On December 16, 2011, the Government notified the Virgin Islands Superior Court of Bason's reinstatement, i.e., he was directed to report to work on December 19, 2011. It also filed a notice of appeal on December 20, 2011, appealing from the opinion and judgment to the Virgin Islands Supreme Court. On March 15, 2012, the Virgin Islands Superior Court denied the Government's motion for a stay of the portion of the judgment ordering the Government to pay back pay as well as the Union's motion for contempt and sanctions on account of the Government's alleged failure to pay the requisite back pay.

The Union also moved to dismiss the Government's appeal. According to the Union, the Virgin Islands Supreme Court lacked appellate jurisdiction because neither the Virgin Islands Superior Court nor the Arbitrator ever established the amount of back pay owed to Bason and because the absence of a clear monetary judgment “renders the December 13, 2011 Opinion and Judgment non-final for purposes of section 32 of title 4 [of the Virgin Islands Code].” Gov't of the Virgin Islands v. UIW–SIU, S.Ct.Civ. No. 2011–0115, 2012 WL 5901921, at *3 (V.I. Nov. 26, 2012). “As more fully explained in the motion to dismiss, the failure to calculate the specific amount of back pay owed to Bason became relevant since it caused the Superior Court, in a March 15, 2012 Order, to deny the UIW–SIU's motion to hold the Government in civil contempt.” Id. at *3 n. 2. The parties were directed to submit supplemental briefing on this jurisdictional issue. On September 10, 2012, the Virgin Islands Supreme Court denied as moot the Government's motion to stay the back pay portion of the judgment, noting that no monetary judgment had been entered and that the Government had never requested a stay of the portion of the judgment ordering Bason's reinstatement.

After hearing oral argument, the Virgin Islands Supreme Court disposed of the Government's appeal in an order and opinion entered on November 26, 2012. In short, it reversed “the portion of the decision which mandated Bason's reinstatement.” Id. at *1.

Accordingly, the Virgin Islands Supreme Court stated in its order that “the portion of the Superior Court's December 13, 2011 Opinion and Judgment which authorizes Ernest Bason's reinstatement as an Assistant Attorney General is REVERSED and that “the instant appeal is DISMISSED with respect to all...

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