                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-1995

Moravian v Rawlins
Precedential or Non-Precedential:

Docket 94-7359




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Moravian v Rawlins" (1995). 1995 Decisions. Paper 288.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/288


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                             No. 94-7359


     THE MORAVIAN SCHOOL ADVISORY BOARD OF ST. THOMAS, V.I.

                                   V.

             HELEN RAWLINS; THE DEPARTMENT OF LABOR,
                GOVERNMENT OF THE VIRGIN ISLANDS

     DEPARTMENT OF LABOR, GOVERNMENT OF THE VIRGIN ISLANDS,
                                               Appellant


                             No. 94-7421


                JANE ROGERS, on behalf of herself;
               THE ESTATE OF INGRID CORENA ROGERS;
                   NIRONE PAVON FRANCIS, minor*;
                   LAUREL SIMONE FRANCIS, minor

                                   V.

                GOVERNMENT OF THE VIRGIN ISLANDS;
             ST. THOMAS HOSPITAL; ELENA AGUAS, M.D.,
                                          Appellants

          * (Amended as per the Clerk's 12/27/94 Order)


                ON APPEAL FROM THE DISTRICT COURT
                      OF THE VIRGIN ISLANDS
         (D.C. Civil Action Nos. 91-00364 and 93-00055)


                        Argued April 18, 1995

        Before:    BECKER, NYGAARD and ROTH, Circuit Judges

                  (Opinion Filed   November 14, 1995)


ROBERT W. BORNHOLT, ESQUIRE (Argued)
FREDERICK HANDLEMAN, ESQUIRE
PAMELA R. TEPPER, ESQUIRE


                                   1
Office of Attorney General of Virgin Islands
Department of Justice
48B-50 Kronprindsens Gade, Suite 1
Charlotte Amalie, St. Thomas
United States Virgin Islands 00802
Attorneys for Appellant Department of Labor

RICHARD R. KNOEPFEL, ESQUIRE
STEVEN L. MIERL, ESQUIRE (Argued)
Briggs, Knoepfel & Ronca
30 Dronningens Gade
P.O. Box 6286
Charlotte Amalie, St. Thomas
United States Virgin Islands 00804
Attorney for Appellants Gov't Virgin Islands,
St. Thomas Hospital and Elena Aguas, M.D.

DENISE R. REOVAN, ESQUIRE (Argued)
4A Commandant Gade
Charlotte Amalie, St. Thomas
United States Virgin Islands 00802
Attorney for Appellee Moravian School

DEBORAH K. ROBINSON, ESQUIRE
Legal Services of the Virgin Islands
57 Dronnigens Gade
Charlotte Amalie, St. Thomas
United States Virgin Islands 00801
Attorney for Appellee Helen Rawlins

RICHARD AUSTIN, ESQUIRE (Argued)
Legal Services of the Virgin Islands
No. 3017 Estate Orange Grove
Christiansted, St. Croix
United States Virgin Islands 00820
Attorney for Appellee Helen Rawlins

LEMUEL F. CALLWOOD, ESQUIRE
VERA D. JEAN, ESQUIRE (Argued)
Law Office of Lemuel F. Callwood
P.O. Box 7397
#1 4th Street Estate Thomas
Charlotte Amalie, St. Thomas
United States Virgin Islands 00801
Attorney for Appellees Jane Rogers,
Estate of Ingrid Corena Rogers,
Nirone Pavon Francis, and
Laurel Simone Francis




                               2
                      OPINION OF THE COURT




NYGAARD, Circuit Judge:

          These two appeals were combined for this opinion

because the issue in both is whether the District Court of the

Virgin Islands, when it lacks subject matter jurisdiction, may

nonetheless transfer a cause to the Territorial Court of the

Virgin Islands rather than dismiss it.   Because we conclude that

a district court must dismiss the suit where there is no

colorable basis for exercising subject matter jurisdiction, we

will reverse and remand both cases with instructions to dismiss.

                                I.

          Helen Rawlins filed a complaint with the Virgin Islands

Department of Labor, alleging that she was wrongfully discharged

from her employment as a teacher with the Moravian School.     She

alleged only claims based on territorial law.   The hearing

officer ruled that Rawlins had been wrongfully discharged and

ordered that Moravian reinstate her with back pay.   The Moravian

School Advisory Board filed a writ of review in the District

Court of the Virgin Islands.   Rawlins then filed a motion to

dismiss based on lack of subject matter jurisdiction.

          Moravian, which did not respond to the motion to

dismiss, did not then and does not now argue that there is

federal jurisdiction over the suit.   Nevertheless, the district




                                3
court, rather than granting the motion to dismiss, transferred

the case to the territorial court.




                               II.

          One day before the statute of limitations expired,

appellee Jane Rogers, on behalf of herself and the estate and

heirs of decedent Ingrid Corena Rogers, filed a medical

malpractice action in the District Court of the Virgin Islands

against St. Thomas Hospital, Elena Aguas, M.D., and the

Government of the Virgin Islands, which owns, operates and staffs

the hospital.   The suit arises from the allegedly negligent

treatment given Ingrid Corena Rogers at the hospital, which

treatment is alleged to have resulted in her death.

          The complaint alleged only medical malpractice and

related negligence claims.   The defendant-appellants responded

with a motion to dismiss for, inter alia, lack of subject matter

jurisdiction.   The district court stated in the hearing

transcript that it would grant the motion to dismiss and transfer

the action to the territorial court.   However, the court

ultimately ordered transfer of the case without mentioning

dismissal.

                               III.

          The U.S. Consititution, Article IV, Section 3 "empowers

Congress to establish all necessary rules and regulations

concerning the unincorporated territory of the Virgin Islands,

including the power to designate the jurisdiction of the District


                                4
Court and the Territorial Court."      Brow v. Farrelly, 994 F.2d

1027, 1032 (3d Cir. 1993).    Pursuant to this power, in 1954,

Congress enacted the Revised Organic Act of the Virgin Islands,

Act of July 22, 1954, ch. 558, §§ 22-23, 68 Stat. 497 (codified

as amended at 48 U.S.C. § 1541 et seq.), which is "the Virgin

Islands' equivalent of a constitution."      Brow, 994 F.2d at 1032.

            Section 1612 of the 1954 Revised Organic Act set forth

the jurisdiction of the District Court of the Virgin Islands,

which included jurisdiction over federal questions, regardless of

the amount in controversy, and general original jurisdiction over

questions of local law, subject to the exclusive jurisdiction of

the local courts over civil actions where the amount in

controversy was less than $500.       Act of July 22, 1954, ch. 558,

§§ 22-23, 68 Stat. 506 (amended 1978, 1984); Brow, 994 F.2d at

1032.    Section 1613 of the 1954 Act also provided that the local

courts shared concurrent jurisdiction with the district court

over all actions to the extent jurisdiction was conferred upon

them by local law.    Act of July 22, 1954, ch. 558, § 23, 68 Stat.

506 (amended 1984); Carty v. Beech Aircraft Corp., 679 F.2d 1051,

1056 n.6 (3d Cir. 1982).

            In 1984, Congress amended the Revised Organic Act to

impose new limits on the general original jurisdiction of the

District Court of the Virgin Islands over cases involving local

law.    Brow, 994 F.2d at 1033.   Specifically, Congress amended

§ 1612(b) of the Revised Organic Act to grant the district court,

in addition to its federal question and diversity jurisdiction,

general jurisdiction over "all causes in the Virgin Islands the


                                  5
jurisdiction over which is not then vested by local law in the

local courts of the Virgin Islands."   48 U.S.C. § 1612(b).     At

the same time, Congress amended § 1611(b) of the 1954 Act,

permitting the Virgin Islands legislature to
          vest in the courts of the Virgin Islands
          established by local law jurisdiction over
          all causes in the Virgin Islands over which
          any court established by the Constitution and
          the laws of the United States does not have
          exclusive jurisdiction. Such jurisdiction
          shall be subject to the concurrent
          jurisdiction conferred on the District Court
          of the Virgin Islands by section 1612(a)
          [federal question and diversity jurisdiction]
          and (c) [criminal jurisdiction] of this
          title.



48 U.S.C. § 1611(b).

          Thus, as pertaining to purely local matters, the 1984

amendment eliminated concurrent jurisdiction in the district

court if jurisdiction became vested in the local courts of the

Virgin Islands.   See Estate Thomas Mall, Inc. v. Territorial

Court of the Virgin Islands, 923 F.2d 258, 260 (3d Cir.), cert.

denied, 502 U.S. 808, 112 S. Ct. 50 (1991).    Later, under
§1611(b), the Virgin Islands legislature amended 4 V.I. Code

§76(a) to vest original jurisdiction over all civil actions in

the territorial court as of October 1, 1991.    The amended section

76(a) provides:
          Subject to the original jurisdiction
          conferred on the District Court by section 22
          [48 U.S.C. § 1612] of the Revised Organic Act
          of 1954, as amended, effective October 1,
          1991, the Territorial Court shall have
          original jurisdiction in all civil actions
          regardless of the amount in controversy....



                                6
Accordingly, under § 1612(b), the district court was divested of

jurisdiction over local civil actions as of October 1, 1991.

Brow, 994 F.2d at 1034.

           Although this divestiture is most directly applicable

where a party files a complaint directly in the district court,

as Rogers did, it also applies if a party files a writ of review

in the district court, as Moravian did.   Section 1421 allows a

party to appeal an administrative determination to the district

court, which, under section 1423, has the power to "affirm,

modify, reverse, or annul the decision or determination

reviewed...."   However, because the amended section 76(a) divests

the district court of jurisdiction over purely local matters, it

also implicitly repealed section 1421 as it pertains to local

matters.   Thus, whether Moravian had filed a writ of review or a

complaint, would not change our analysis.

                               IV.

           The Virgin Islands legislature derives its power to

legislate from the Revised Organic Act.   Brow, 994 F.2d at 1035

n.6.   The Act extends legislative power "to all rightful subjects

of legislation not inconsistent with this chapter or the laws of

the United States made applicable to the Virgin Islands...."     48

U.S.C. § 1574(a); see also 48 U.S.C. § 1574(c) (Virgin Islands
legislature may not amend or repeal local laws so as to be

inconsistent with Revised Organic Act or laws of the United

States applicable to Virgin Islands).

           The Revised Organic Act of 1954 permitted the District

Court of the Virgin Islands to transfer any action or proceeding


                                7
brought in the district court to an inferior court established by

local law (i.e. the territorial court), as long as the action was

within the jurisdiction of the inferior court and the transfer

was made in the interest of justice.   1 V.I. Code, Historical

Documents, Revised Organic Act of 1954 § 23 ("Any action or

proceeding brought in the district court which is within the

jurisdiction of an inferior court may be transferred to such

inferior court by the district court in the interest of

justice.").   Section 32(b) of the Virgin Islands Code, title 4,

was enacted pursuant to this section of the Revised Organic Act.

See 4 V.I. Code Ann. § 32 note (Revision Note) (1967) (sections

32(a) and (b) follow the language of §§ 22 and 23 of the Revised

Organic Act of 1954). That section provides:
          Any action or proceeding brought in the
          district court which is within the jurisdic-
          tion of the territorial court may be
          transferred by the district court in the
          interest of justice to the territorial court
          for the proper judicial division.


4 V.I. Code § 32(b).   Similarly, section 77(b) of the Virgin
Islands Code states:
          A judge of the district court may, in the
          interest of justice, cause a case or cases
          pending in the territorial court to be
          transferred to the district court and may
          transfer cases pending in the district court
          to the territorial court provided that such
          transferred case is within the jurisdictional
          competence of [the] court to which the
          transfer is made.




                                8
4 V.I. Code § 77(b).   Although section 77(b) does not state its

origins, presumably, it was also enacted pursuant to § 23 of the

Revised Organic Act of 1954.

          In the 1984 amendments to the Act, however, Congress

deleted the language in § 23 permitting the district court to

transfer actions to the inferior courts.   48 U.S.C. § 1613 (1984

amendment).   Once that language was deleted, the Virgin Islands

legislature lacked the authority to grant the District Court of

the Virgin Islands the power to transfer actions to the

territorial court.   Although Congress' intent in deleting the

transfer language is not manifest in the 1984 amendment, we may

infer that Congress deleted the transfer provision purposefully

with the intent to do away with such transfers.

          Our disposition of the transfer issue, however, need

not turn on inferences alone.   As amended, § 1613 now provides

for the relations between the District Court of the Virgin

Islands and the territorial court to parallel the relations

between the federal courts and the state courts.   48 U.S.C.

§1613.   Congress, in turn, has defined the authority of the

federal courts to transfer a case as follows:
          Whenever a civil action is filed in a court
          as defined in section 610 of this title or an
          appeal...and that court finds there is a want
          of jurisdiction, the court shall, if it is in
          the interest of justice, transfer such action
          or appeal to any other such court, in which
          the action or appeal could have been brought
          at the time it was filed or noticed....


28 U.S.C. § 1631 (emphasis added).   "Court" is defined in § 610

as


                                9
          the courts of appeals and district courts of
          the United States, the United States District
          Court for the District of the Canal Zone, the
          District Court of Guam, the District Court of
          the Virgin Islands, the United States Court
          of Federal Claims, and the Court of Interna-
          tional Trade.


28 U.S.C. § 610.

          Because §§ 1631 and 610 clearly demonstrate that

Congress intended to limit the authority of the federal courts to

transfer cases only to other federal courts, we have held that

§ 1631 provides no authority for a federal court to transfer a

case over which it lacks jurisdiction to a state court.

McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Ctiff
sued in federal district court, alleging, along with state law

claims, that the defendant had violated federal securities laws.

683 F.2d at 745.   The district court granted summary judgment for

the defendant, finding no cause of actiobanc), a district court's

transfer of an action to a territorial court, where the district

court has no colorable basis for exercising subject matter

jurisdiction, is inconsistent with § 1631, made applicable to

U.S. territories by § 1613, and thus is outside of the inherent

authority of the district court.

          Perhaps most significant to our disposition of these

cases, however, is Federal Rule of Civil Procedure 12(h)(3),

which states that, "[w]henever it appears by suggestion of the

parties or otherwise that the court lacks jurisdiction of the

subject matter, the court shall dismiss the action."   (Emphasis

added).   In Bank of Nova Scotia v. United States, 487 U.S. 250,



                                10
254, 108 S. Ct. 2369, 2373 (1988), the Supreme Court held that a

federal court could not invoke its supervisory power "to

circumvent the harmless-error inquiry prescribed by Federal Rule

of Criminal Procedure 52(a)."   The Court explained that Rule 52

is "as binding as any statute duly enacted by Congress and

federal courts have no more discretion to disregard the Rule's

mandate than they do to disregard constitutional or statutory

provisions."    Id. at 255, 108 S. Ct. at 2373-74.    Rule 12 (h)(3)

is equally as binding on us.

            Neither Rogers nor Moravian disputes that the district

court lacked jurisdiction over their lawsuits.       It is clear,

therefore, that the district court not only lacked express or

implied authority under federal law to transfer these cases to

the territorial court, but was expressly compelled by Rule

12(h)(3) to dismiss them.   It is equally clear that no such

authority to transfer can be derived from the Virgin Islands

Code, inasmuch as the laws of the Virgin Islands must be

consistent with the laws of the United States.       48 U.S.C.

§1574(a).   Accordingly, we conclude that the Virgin Islands

transfer provisions are invalid to the extent they purport to

allow a district court to transfer a case over which it lacks

jurisdiction to the territorial court.

            The appellees counter that our decision in Weaver v.

Marine Bank, 683 F.2d 744 (3d Cir. 1982) allows the district

court to transfer a case over which it lacks subject matter

jurisdiction to a state or territorial court where a state or

territorial statute authorizes the transfer.    The appellees'


                                 11
reliance on Weaver is misplaced.     In Weaver, the plaintiff sued

in federal district court, alleging, along with state law claims,

that the defendant had violated federal securities laws.     683

F.2d at 745.   The district court granted summary judgment for the

defendant, finding no cause of action under those laws.     We

reversed on appeal, and were in turn reversed by the Supreme

Court, which held that the district court's decision to grant

summary judgment was correct because the case did not involve a

"security" within the scope of federal law.    Id.

          On remand, we noted that Pennsylvania authorized

transferring a case, improperly brought in federal court, to the

proper Pennsylvania court.   Id. at 746.   Nevertheless, we made

clear that the district court's power to transfer the case in

Weaver was not circumscribed by lack of subject matter

jurisdiction:
          We recognize that such a transfer by a
          district court is an exercise of a power
          granted not by federal, but state, law.
          Jurisdiction of a federal court is dependent
          upon federal statutory authority, but that
          principle does not control the issue here.
          Unquestionably, at the time the suit was
          filed in the district court, there was a
          colorable federal claim and pendent
          jurisdiction could properly be assumed. The
          question presented then is, whether the
          district court, once having acquired
          jurisdiction, can transfer the matter to the
          state court by virtue of a state enabling
          statute. We are persuaded that it can.


Id. at 747 (emphasis added) (footnote omitted).      Finding "no

equitable considerations which would bar transfer...," we

remanded the matter to the district court with directions to


                                12
transfer the pendent state claims to the state court.    Id. at

748.

          These cases present far different situations.     Here,

the respective appellees never even purported to present a

colorable federal question or claim of diversity jurisdiction.

Rather, they failed to recognize that the Virgin Islands

legislature had divested the district court of jurisdiction over

purely local claims, and erroneously filed suit in the district

court alleging claims premised solely on local law.    From the

outset, there never was a basis for federal jurisdiction.

          We think the distinction is aptly noted in the

dubitante opinion in Weaver, which noted the difference between a

Rule 12(b)(1) motion to dismiss for lack of subject matter

jurisdiction and a Rule 12(b)(6) motion to dismiss for failure to

state a claim.    Id. at 749.   "It is only if the former would have

succeeded that the district court lacks power to entertain the

pendent claim."    Id. (Sloviter, J., dubitante opinion) (citing

Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1946)

("Whether the complaint states cause of action on which relief

could be granted is a question of law and just as issues of fact

it must be decided after and not before the court has assumed

jurisdiction over the controversy.")); see also 5A Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1350,

at 77 (Supp. 1995).

          Our decisions since Weaver have emphasized this

distinction.     In McLaughlin, supra, the plaintiff sued in
district court, basing jurisdiction on diversity of citizenship.


                                  13
721 F.2d at 427.     The district court found that there was in fact

no diversity of citizenship but, nevertheless, purporting to

follow Weaver, transferred the case to Pennsylvania court

pursuant to the same Pennsylvania transfer statute at issue in

Weaver.     Id. at 428.

            On appeal, we emphasized that Weaver dealt with a

different situation -- one in which "we characterized the state

law claim as pendent to plaintiffs' colorable federal claim that

defendant had violated section 10(b) of the Securities Exchange

Act of 1934...."     Id. at 429.   We noted that it was doubtful

whether the plaintiff in McLaughlin had presented a colorable

federal claim, and that "[t]here is a serious question whether

the Weaver precedent can be extended to authorize the district

court to transfer a state law claim in the absence of any

colorable federal claim to which it could have been pendent." Id.

at 430.   However, we did not reach that question in McLaughlin

because, after the district court's transfer order, Pennsylvania

amended its transfer statute to permit the preservation of claims

filed in federal court, even without the transfer order.      Id.

Nevertheless, McLaughlin makes clear that Weaver provided no
authority for the district court to transfer this case, nor could

it provide such authority, given the plain language of Rule

12(h)(3).

            More recently, we addressed an analogous situation in

Bradgate Assocs. v. Fellows, Read & Assocs., Inc., 999 F.2d 745

(3d Cir. 1993).     Bradgate Associates brought a diversity suit in

district court and later removed a related state court case


                                   14
between the same parties to the district court.     Id. at 747.   The

two cases were consolidated, but the district court concluded

that it lacked diversity jurisdiction and remanded the

consolidated case to state court.     Id.   On appeal, we held that

the district court erred by remanding to state court the portion

of the case that was originally filed in federal court, and

instead should have dismissed that part of the case.     We

distinguished 28 U.S.C. § 1447(c), which requires a district

court to remand a case over which it lacks jurisdiction to the

court from which it was removed:
          Lack of subject matter jurisdiction does not
          extinguish a removed state court case;
          section 1447(c) only requires the district
          court to remand it to state court. In
          contrast, lack of subject matter jurisdiction
          terminates a case originally filed in federal
          court because Rule 12(h)(3) instructs the
          district court to dismiss cases which do not
          meet jurisdictional prerequisites. See
          Weaver v. Marine Bank, 683 F.2d 751 (3d Cir.
          1982) (Sloviter, J., dubitante opinion) ("I
          need cite no authority for the proposition
          that the power of the federal courts is
          defined by Article III and the acts of
          Congress made pursuant thereto. No federal
          statute authorizes transfer of cases from a
          federal to a state court.").


Id. at 751 (footnote omitted).   We noted that Weaver dealt with

pendent state claims following a determination that federal

question jurisdiction was lacking.    Id. at 751 n. 5.    While we

also noted that, unlike in Weaver, there was no state transfer

statute at issue in Bradgate Associates, the plain language of

Rule 12(h)(3) makes clear that, where it appears at the outset

that the district court is without subject matter jurisdiction,


                                 15
it is powerless to do anything but dismiss the action.   Weaver is

consistent with this rule in that the district court there had

jurisdiction because the plaintiff had pleaded a colorable

federal claim.   Weaver, 683 F.2d at 747; see also Bell, 327 U.S.

at 682, 66 S. Ct. at 776.0   There is no such claim in the present

case.

                                 V.

          We conclude that the district court erred by

transferring these cases to the territorial court.   The district

court was compelled by Rule 12(h)(3) to dismiss both actions.

Accordingly, we will vacate the transfer orders and remand with

instructions to dismiss each cause0.



The Moravian School Advisory Board of St. Thomas, V.I. v.

Helen Rawlins; The Department of Labor, Government of The Virgin

Islands Department of Labor, Government of The Virgin Islands,

Appellant, No. 94-7359


0
 In Brow, we upheld the District Court of the Virgin Islands'
order dismissing, for lack of subject matter jurisdiction, an
action to enforce an order of the territorial court. In a
footnote, we stated that the district court could have elected to
transfer the case to the territorial court pursuant to the Virgin
Islands transfer provisions at issue here. 994 F.2d at 1037 n.
10. However, because this statement was dictum, we are not bound
by it, and decline to follow it inasmuch as it is in
contradiction with Rule 12(h)(3).
0
 Without prejudging the matter, we note that Rogers, in
particular, may not be totally without remedy as she may have an
action against her attorney for malpractice. Her medical
malpractice action was filed in the district court on April 5,
1993, more than a year and a half after October 1, 1991, when the
local legislature vested jurisdiction over such matters in the
territorial court.

                                 16
Jane Rogers, on behalf of herself; THE ESTATE OF INGRID CORENA

ROGERS; NIRONE PAVON FRANCIS, minor; LAUREL SIMONE FRANCIS, minor

v. GOVERNMENT OF THE VIRGIN ISLANDS; ST. THOMAS HOSPITAL; ELENA

AGUAS, M.D., No. 94-7421



BECKER, Circuit Judge, concurring and dissenting.



          The majority believes the district court's transfer of

Ms. Rogers' and Moravian's claims to the territorial court is

inappropriate for three reasons.     I find its first two reasons

(centering on the change in language of 4 V.I. Code § 23 and on

an analysis of 28 U.S.C. § 1631 and 48 U.S.C. § 1613)

unpersuasive.   I agree in principle with the third prong of the

majority's analysis (centering on Federal Rule of Civil Procedure

12(h)(3)) but believe that it counsels remand of Moravian's case

for reevaluation of the jurisdictional issue.      While Rule

12(h)(3) precludes transfer of Rogers' claim, this result so

troubles me that I am prompted to recommend to the Virgin Islands

Senate that it enact savings legislation that would, in the

future, save claims such as those of Rogers and Moravian from

extinction.



                                I.

          Under the Revised Organic Act of 1954, the District

Court of the Virgin Islands was permitted to transfer any action

brought in the district court to the territorial court.    4 V.I.

Code, Historical Documents, Revised Organic Act of 1954 § 23.       In


                                17
1984, as part of a comprehensive restructuring of Virgin Islands

jurisdiction, Congress amended § 23 by deleting the language that

authorized such transfers.    See 48 U.S.C. § 1613, note (1984

Amendment).    The majority infers that this deletion evinces

congressional intent to prohibit such transfers.    I disagree.

Deciphering congressional silence is always a tricky business.

This is especially true when, as here, Congress authorizes a

total restructuring with sweeping legislation.    In such

circumstances, no reasonable inference can be drawn from

Congress' deletion of any particular provision.

            To further buttress its inferential argument that the

District Court of the Virgin Islands may not lawfully transfer a

case to the Territorial Court of the Virgin Islands, the majority

relies upon 28 U.S.C. § 1631 and 48 U.S.C. § 1613.    According to

the majority, § 1613 "provides for the relations between the

District Court of the Virgin Islands and the territorial court to

parallel the relations between the federal courts and the state

courts."0   The majority further explains that § 1631 "limits the

authority of the federal courts to transfer cases only to other
0
That section reads:

            The relations between the courts established by the
            Constitution or laws of the United States and the
            courts established by local law with respect to
            appeals, certiorari, removal of causes, the issuance of
            writs of habeas corpus, and other matters or
            proceedings shall be governed by the laws of the United
            States pertaining to the relations between the courts
            of the United States, including the Supreme Court of
            the United States, and the courts of the several States
            in such matters and proceedings.

48 U.S.C. § 1613.

                                 18
federal courts." (Emphasis added).0   Thus, federal courts may not

transfer cases to state courts and, via § 1613, the District

Court of the Virgin Islands may not transfer cases to the

Territorial Court of the Virgin Islands.

          In my view, the majority has mischaracterized § 1631.

Section 1631 is an efficiency-oriented provision that governs

transfers of cases between federal courts.    The problem with the

majority's analysis is that, as I document in footnote 3, the

federal transfer provision, § 1631, deals only with the relations

of different federal courts to each other.0   See also McLaughlin

0
The Section provides:

          Whenever a civil action is filed in a court as defined
          in section 610 of this title or an appeal . . . and
          that court finds there is a want of jurisdiction, the
          court shall, if it is in the interest of justice,
          transfer such action or appeal to any other such court,
          in which the action or appeal could have been brought
          at the time it was filed or noticed.

28 U.S.C. § 1631 (emphasis added).

           "Court" is defined in § 610 as, "the courts of appeals
and district courts of the United States, the United States
District Court for the District of the Canal Zone, the District
Court of Guam, the District Court of the Virgin Islands, the
United States Court of Federal Claims, and the Court of
International Trade." 28 U.S.C. § 610.
0
 See S. Rep. No. 275, 97th Cong., 1st Sess. 11 (1981), which
explains the purpose of 28 U.S.C. § 1631 as follows:

               In recent years much confusion has been engendered
          by provisions of existing law that leave unclear which
          of two or more federal courts including courts at both
          the trial and appellate level--have subject matter
          jurisdiction over certain categories of civil actions.
          The problem has been particularly acute in the area of
          administrative law where misfilings and dual filings
          have become commonplace. The uncertainty in some
          statutes regarding which court has review authority


                                19
v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Cir. 1983).     This

has two implications.    First, § 1631's failure to authorize

transfers to state courts cannot fairly be read to proscribe such

transfers.    Second, § 1631 does not pertain to "relations

between" federal and state courts and thus does not, via § 1613,

affect the relations between the district and territorial courts

of the Virgin Islands.

            Thus, the only legal impediment to transferring cases

to the territorial court is Federal Rule of Civil Procedure

12(h)(3).    This rule states that, "[w]henever it appears by

suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the

action."    Fed. R. Civ. P. 12(h)(3) (Emphasis added).   Consistent

with principles announced by this court in Weaver v. Marine Bank,

683 F.2d 744 (3d Cir. 1982), and McLaughlin v. Arco Polymers,

Inc., 721 F.2d 426 (3d Cir. 1983), the majority interprets Rule

            creates an unnecessary risk that a litigant may find
            himself without a remedy because of a lawyer's error or
            a technicality of procedures.
                 At present, the litigant's main protective device,
            absent an adequate transfer statute is the wasteful and
            costly one of filing in two or more courts at the same
            time. This puts increased burdens on the courts as
            well as on the parties.
                 Although most problems in this regard relate to
            controversies involving the district courts and the
            court of appeals, there also have been cases involving
            the Court of International Trade, and the Temporary
            Emergency Court of Appeals. Therefore, the language of
            Part A of Title III [§ 1631] is broadly drafted to
            permit transfer between any two federal courts.

Thus, this statute was written to cover federal transfers. It
has nothing to say on the issue of transfers between federal and
state courts.


                                 20
12(h)(3) to bar transfer of an action when the court lacks

subject matter jurisdiction.    I agree.       With this in mind, the

majority correctly concludes that Ms. Rogers' case should be

remanded with instructions to dismiss.

          Contrary to the majority's suggestion, however,

Moravian's case cannot be disposed of similarly.      In her

complaint filed with the Virgin Islands Department of Labor, Ms.

Rawlins may have alleged a colorable federal claim of age and

national origin discrimination. She averred, inter alia, that:
           The employment practices at Memorial
          Moravian School, as well as its forms and
          conditions of employment have a disparate
          impact on persons who are of different
          national origin and are in the protected age
          group. For example:

               [A].   The majority of the faculty members are

               not in the protected age group.       B.   Rev.

               Peters favors recruiting persons who are from

               the former British Colonies of the West

               Indies, as he is.      I am a native Virgin

               Islander.   C.   Persons who have been absent

               from work due to sickness or any other leave

               of absences did not have their employment

               affected as mine was.      D.   The person who

               replaced me (Mrs. Ham) is not in the

               protected age group, and is from one of the

               former British Colonies of the West Indies."

               (Complaint In Re Helen Rawlins, WD-005-90-STT

               - pages 1-3).



                                 21
If Ms. Rawlins' originally alleged federal claims, such claims

might provide an adequate basis for supplemental jurisdiction

over her state law claims, see 28 U.S.C. § 1367, and thereby

support Moravian's contention that the district court has the

power to transfer.   I would remand to the district court for

determination of what claims Ms. Rawlins asserted and whether

they support supplemental jurisdiction.     If the court concludes

that it has supplemental jurisdiction over Ms. Rawlins' state law

claims, it should transfer them pursuant to 4 V.I. Code §§ 32(b),

77(b).0   If not, it should dismiss them.

                                II.




0
Section 32(b) provides:

           Any action or proceeding brought in the district court
           which is within the jurisdiction of the territorial
           court may be transferred by the district court in the
           interest of justice to the territorial court for the
           proper division.

4 V.I. Code § 32(b).

     Section 77(b) provides:

           A judge of the district court may, in the interest of
           justice, cause a case or cases pending in the
           territorial court to be transferred to the district
           court and may transfer cases pending in the district
           court to the territorial court provided that such
           transferred case is within the jurisdictional
           competence of [the] court to which the transfer is
           made.

4 V.I. Code § 77(b).




                                 22
          While I must agree with the majority's conclusion as to

Ms. Rogers' claim, I am nonetheless troubled by it.     In 1984,

Congress set in motion a restructuring of the entire Virgin

Islands' judicial system.   This restructuring divested the

District Court of the Virgin Islands of its purely local

jurisdiction and transferred it to the Territorial Court of the

Virgin Islands.   See generally Brow v. Farrelly, 994 F.2d 1027,

1034 (3d Cir. 1993).   Congress must have known that significant

confusion including cases being filed in the wrong court would

result during this restructuring.0     Allowing numerous actions to

lapse due to statutory confusion seems improvident, and this

rings especially true in the Virgin Islands.     Deeply ingrained

into the Virgin Islands legal culture is a policy of eschewing

technical niceties in favor of hearing cases on the merits and

effecting substantial justice.

           In Ms. Rogers' case, the plaintiff's serious medical

malpractice claim was filed in a timely manner, but the statute

of limitations has now expired.    Given Rule 12(h)(3), this

improperly filed claim cannot be transferred to the appropriate

court.   The availability of a malpractice suit against a lawyer

who may have various defenses or be uninsured and impecunious

provides scant relief.   To avoid this unduly harsh result, I urge

the Virgin Islands Legislature to enact a savings statute, like

the one in Pennsylvania, 42 Pa. Cons. Stat. Ann. § 5103(b)


0
For example, on February 3, 1993, Chief Judge Moore found it
necessary to issue a memorandum of the entire Virgin Islands Bar
on where writs of review should be filed.


                                  23
(1995), which would allow preservation of claims filed in federal

court without the necessity of a transfer order.    Such a statute

would permit litigants to refile cases dismissed by a district

court for lack of subject matter jurisdiction in a state court

simply by filing a certified transcript of the district court

proceedings with the appropriate state authority.   To eliminate

any time limitation problems, the savings statute would allow

litigants to use the date the federal suit was instituted as the

filing date for the state law claim.0   In this manner, a savings

statute would facilitate the efficient dispensation of justice

throughout the Virgin Islands.




0
See McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 430-431 (3d
Cir. 1983), for a further description of the Pennsylvania savings
statute.


                                 24
