H & OFOOD WAREHOUSE, INC., a/k/a H & O Warehouse, Inc. of St. Croix v. Virgin Islands Public Finance Authority

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 02-2947
H & O FOOD W AREHOUSE, INC.,
a/k/a H & O Warehouse, Inc. of St. Croix,
Appellant
v.
VIRGIN ISLANDS PUBLIC FINANCE AUTHORITY;
CHARLES W. TURNBULL, Governor;
GOVERNMENT OF THE VIRGIN ISLANDS
On Appeal from the District Court
of the Virgin Islands
(D.C. Civil No. 01-cv-00175)
District Judge: Hon. Raymond L. Finch, Chief Judge
Argued May 1, 2003
BEFORE: ROTH, MC KEE and COWEN, Circuit Judges
(Filed June 17, 2003 )
Philip D. Parrish, Esq. (Argued)
Robert C. Maland, Esq.
Law Offices of Neal R. Lewis
9130 South Dadeland Boulevard
Suite 1705
Miami, FL 33156

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Jomo Meade, Esq.
112 Queen Cross Street
Fredericksted, St. Croix
USVI, 00840
Counsel for Appellant
Marie E. Thomas, Esq. (Argued)
Birch, de Jongh, Hindels & Hall
Poinsettia House of Bluebeard’s Castle
1330 Estate Taarnebjerg
Charlotte Amalie, St. Thomas
USVI, 00802
Counsel for Appellee Virgin Islands Public
Finance Authority
Joel H. Feld, Esq.
Office of Attorney General of Virgin Islands
Department of Justice
48B-50C Kronprindsens Gade
GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas
USVI, 00802
Counsel for Appellees Charles Turnbull, Governor
and Government of the Virgin Islands
OPINION
COWEN, Circuit Judge.
H&O Warehouse, Inc. (“H&O”) is a Virgin Islands corporation operating a
warehouse and distribution business. The Virgin Islands Public Finance Authority (the
“PFA”) is an instrumentality of the Government of the Virgin Islands (the “Government”)

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created to assist the Government in public projects by securing financing through the
issuance of bonds and notes. H&O alleges that the Government contracted for the
purchase of food, goods, and wares in the amount of $3,932,706.15 which H&O
delivered without payment. The PFA disputes the existence of a contract, and denies that
any demand for payment have been made. The merits of these arguments, however, are
not raised in this appeal. Instead, this appeal centers on an appropriations bill directing
the PFA to pay H&O the alleged outstanding amount.
On January 16, 1998 the Virgin Islands Legislature passed Act No. 6197
authorizing the PFA to borrow funds totaling $106 million for a loan to the Government.
On March 18, 1998, the Legislature passed Act No. 6222 which amended Act No.
6197(1)(a) by qualifying the borrowing authorization with a provision that “the sum of
$3,932,706.15 shall be paid to H&O W arehouse, Inc. of St. Croix.” Supp. App. 1, Ex. B.
Both Acts were signed into law by the Governor of the Virgin Islands. The parties do not
dispute that the PFA has not paid H&O any of the amount authorized by Acts Nos. 6197
and 6222.
On February 20, 1998 H&O filed a complaint in the Territorial Court against the
Government alleging a breach of contract. While the Territorial Court action proceeded,
H&O filed a separate complaint in the District Court of the Virgin Islands on October 31,
2001 captioned as an “Original Mandamus Action.” App. at 4. An “Amended Complaint
for Original Mandamus Action” followed on February 19, 2002. The Amended

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Complaint cited the passing of Acts Nos. 6197 and 6222 into law, alleged that the PFA
and the Government had failed to pay the sum due, and sought a writ of mandamus. The
PFA moved to dismiss the mandamus action for lack of subject matter jurisdiction. The
District Court granted the motion to dismiss and this appeal followed.
Finally, on August 19, 2002 H&O returned to the Territorial Court and moved for
leave to amend its contract action to request mandamus relief. The status of that motion
is not indicated in the record.
This court exercises plenary review over the District Court’s dismissal of H&O’s
petition for lack of subject matter jurisdiction, and the District Court’s interpretation and
application of Virgin Islands law. Brow v. Farrelly, 994 F.2d 1027, 1031 (3d Cir. 1992);
see also BA Props., Inc. v. Gov’t of the United States Virgin Islands, 299 F.3d 207, 211
(3d Cir. 2002).
II.
A. The Original Jurisdiction of the District Court
This Court has explained the jurisdiction of the District and Territorial Courts on
numerous occasions. See, e.g., Club Comanche, Inc. v. Gov’t of the Virgin Islands, 278
F.3d 250, 255-56 (3d Cir. 2002); Brow v. Farrelly, 994 F.2d 1027, 1032-35 (3d Cir.
1993); Estate Thomas Mall, Inc. v. Territorial Court of the Virgin Islands, 923 F.2d 258
(3d Cir. 1991). Congress established the jurisdiction of the District Court of the Virgin
Islands in The Revised Organic Act (the “ROA”), 48 U.S.C. §§ 1541-1645. In 1984,

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Congress amended the ROA to provide the District Court of the Virgin Islands the entire
jurisdiction of a District Court of the United States, and general original jurisdiction in all
causes in the Virgin Islands not vested by law in the local courts. 48 U.S.C. §§ 1612(a);
(b). In 1991, the Virgin Islands Legislature exercised its power to vest local civil actions
in the Territorial Courts, 4 V.I.C. § 76(a), and thereby divested the District Court of
jurisdiction over all local civil suits. Brow, 994 F.2d at 1034; Estate Thomas, 923 F.2d at
261. With the enactment of 4 V.I.C. § 76(a), the District Court of the Virgin Islands now
has exclusive jurisdiction over all purely federal matters, and concurrent federal question
and diversity jurisdiction. Local civil actions, in contrast, are within the exclusive
jurisdiction of the Territorial Courts. Club Comanche, 278 F.3d at 256.
In the present case, H&O cannot invoke either the District Court’s diversity or
federal question jurisdiction under 48 U.S.C. § 1612(a). H&O’s well-pleaded complaint
raises no issues of federal law, and there is no complete diversity as both parties are
citizens of the Virgin Islands. As jurisdiction is improper under 48 U.S.C. § 1612(a),
H&O’s claim must be filed in the Territorial Court pursuant to 48 U.S.C. § 1612(b) and 4
V.I.C. § 76(a).
H&O argues that this Court’s decision in Brow holds that the District Court of the
Virgin Islands may exercise jurisdiction over a mandamus action pursuant to 5 V.I.C. §
1361. In Brow, the plaintiff obtained a favorable judgment from the Territorial Court in
an employment dispute, and sought to enforce the judgment by filing a petition for a writ

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of mandamus in the District Court. In holding that the District Court lacked subject
matter jurisdiction, this Court construed the plaintiff’s pro se filing as an action to enforce
a judgment (albeit in the wrong court), and thus not a petition for mandamus. Brow, 994
F.2d at 1036. As part of an extensive explanation of jurisdiction in the Virgin Islands,
this Court also noted that had the plaintiff “brought a true mandamus action, the District
Court would possess the subject matter jurisdiction to hear the petition.” Id. at 1036 n.9.
This statement, however, merely explained that both the District and Territorial
Courts “possess the authority to issue mandamus orders in aid of their jurisdiction.”
Id. (emphasis added). The illustrative purpose of this comment is made clear by the
Court’s discussion of the sources of mandamus power, including 28 U.S.C. § 1651(a), the
All Writs Act. It is well-settled that § 1651(a) only conferred authority to issue writs if an
independent basis for subject matter jurisdiction exists. See United States v. Christian,
660 F.2d 892, 894 (3d Cir. 1981) (“The principle [that] the Supreme Court has no original
jurisdiction to issue the writ of mandamus has historically applied as well to lower federal
courts. . . . The current authorization for mandamus, embodied in the All Writs Act . . .
preserves this restraint.”). This discussion of the All Writs Act indicates that Brow
cannot be read to suggest that 5 V.I.C. § 1361(a) deviates from federal law and creates an
independent source of subject matter jurisdiction in the District Court of the Virgin
Islands.
As both 28 U.S.C. § 1651(a) and 5 V.I.C. § 1361(a) authorize the issuance of a

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writ of mandamus only in the aid of the District Court’s already existing jurisdiction,
H&O has not raised a case or controversy within the District Court’s statutory grant of
subject matter jurisdiction under 48 U.S.C. § 1612(a). Accordingly, the District Court did
not err in dismissing H&O’s complaint.
B. The Appellate Jurisdiction of the District Court
H&O alternatively argues that the District Court erred in refusing to exercise
appellate jurisdiction over its petition. The District Court rejected this argument on
procedural grounds, because H&O failed to file its petition with the Clerk of the
Appellate Division as required by Virgin Islands Rule of Appellate Procedure 13(a).
H&O does not dispute this error, and the District Court’s decision can be affirmed on this
ground.
Alternatively, the District Court’s decision may be affirmed because it would have
lacked appellate jurisdiction over a properly filed mandamus action. H&O notes that an
adverse decision on its pending petition in the Territorial Court can be appealed to
Appellate Division of the District Court. H&O thus argues that the Appellate Division
has potential appellate jurisdiction to consider its petition, as “that petition—regardless of
its outcome—will ultimately lead the parties back to the District Court . . . .” Blue Br., at
14.
This Court has outlined two jurisdictional requirements for appellate review under
28 U.S.C. § 1651. First, because a writ may issue “in aid of” of an appellate court’s

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jurisdiction, the case must be one that lies within “some present or potential exercise of
appellate jurisdiction.” Westinghouse Elec. Corp. v. Republic of the Philippines, 951
F.2d 1414, 1422 (3d Cir. 1991); In re Richards, 213 F.3d 773, 779 (3d Cir. 2000). This
rule states that while the act complained of in the mandamus petition need not be itself an
appealable order, “the action must nevertheless involve subject matter to which our
appellate jurisdiction could in some manner, at some time, attach.” United States v. RMI
Co., 599 F.2d 1183, 1185-86 (3d Cir. 1979).
The second jurisdictional requirement seeks to protect the integrity of the final
judgment rule by prohibiting a petition for mandamus as a “mere substitute for appeal.”
Westinghouse Elec., 951 F.2d at 1422. This prerequisite protects the appellate courts’
ability to review lower court decisions “where appeal after a final judgment is an
inadequate remedy.” Id. (recognizing that mandamus may properly be used for
immediate appellate review of discovery orders); United States v. Christian, 660 F.2d
892, 895 (3d Cir. 1981) (noting this Court has resorted to mandamus in matters lacking
even a specific case or controversy, where issuance of a writ was necessary to preserve
the Court’s ability to review the challenged action at all).
In the present case, H&O’s invocation of the District Court’s appellate authority
sought a decision on a matter still pending before the Territorial Court. Although the
boundaries of potential appellate jurisdiction are somewhat undefined, the relevant cases
all center on appellate review of some action (or failure to act) by a lower court. In re

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Richards, 213 F.3d at 778 (refusal of Territorial Court to grant Government’s motion to
dismiss criminal proceeding); Christian, 660 F.2d at 892 (refusal of District Court of the
Virgin Islands to summon a grand jury to investigate antitrust violations); RMI Co., 599
F.2d at 1185 (refusal of District Court to consider intervenor’s motion for a protective
order). In the present appeal, in contrast, there is no action by the Territorial Court for the
District Court to review, or any allegation that the Territorial Court has failed to perform
a required duty.
Moreover, H&O concedes that the pending petition in the Territorial Court will
ultimately arrive before the Appellate Division of the District Court. That admission
demonstrates that H&O “has an adequate means other than through a writ of mandanus”
to seek enforcement of Acts Nos. 6197 and 6222 by properly filing an appeal of an
unfavorable decision of the Territorial Court pursuant to 4 V.I.C. § 33. In re Emerson
Radio Corp., 52 F.3d 50, 56 (3d Cir. 1995) (declining mandamus jurisdiction to review a
bankruptcy court order where decision was reviewable by the district court). The District
Court did not err in dismissing H&O’s petition.
III.
For the foregoing reasons, the judgment of the District Court entered on June 13,
2002, will be affirmed.

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TO THE CLERK:
Please file the foregoing opinion.
/s/Robert E. Cowen
United States Circuit Judge

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