Kutak Rock attorney Dwyer Arce is lead counsel for the Virgin Islands Bar Association in a case that will be argued before the full U.S. Court of Appeals for the Third Circuit sitting en banc on Wednesday, February 21. The case will determine which court has jurisdiction to review the Supreme Court of the Virgin Islands: the Third Circuit or the U.S. Supreme Court.
A U.S. territory since 1917, the Virgin Islands has gained greater autonomy over the years, first from military governance and later from the oversight of the federal government, and its internal governance has come to mirror that of a state. When the Supreme Court of the Virgin Islands was created in 2007, Congress provided that the Third Circuit in Philadelphia would have jurisdiction to review its decisions for 15 years, unlike all other states where appeals from their highest courts are made directly to the U.S. Supreme Court. In 2012, acting on the Third Circuit’s recommendation, Congress passed and President Obama signed H.R. 6116, ending that review period early and requiring all appeals to go directly to the U.S. Supreme Court. However, the Third Circuit held in 2014 that it could continue to review decisions of the Virgin Islands Supreme Court if the case was pending in the courts of the Virgin Islands before the date H.R. 6116 was enacted.
Since 2014, the Virgin Islands Bar Association has advocated against the decision of the Third Circuit retaining jurisdiction over the Virgin Islands Supreme Court. The Bar Association has argued in a series of briefs filed as amicus curiae—or friend of the court—that the decision was wrongly decided, negatively affects the practice of law and administration of justice in the Virgin Islands, and undermines the authority of the Virgin Islands Supreme Court.
In early December 2017, Dwyer argued this issue in front of a three-judge panel of the Third Circuit sitting on the island of St. Croix. Shortly after the argument, in a rare move, the full Third Circuit decided to immediately consider and decide the issue before the three-judge panel issued an opinion. In another rare move, the court granted the Virgin Islands Bar Association leave to appear at oral argument as amicus curiae. All 12 active judges and one senior judge of the Third Circuit will now hear arguments and decide the case. Dwyer will again urge the Third Circuit to recognize that it no longer has jurisdiction to review decisions of the Supreme Court of the Virgin Islands.
Before joining the litigation department in Kutak Rock’s Omaha office, Dwyer served as the senior law clerk to the Honorable Maria M. Cabret of the Supreme Court of the Virgin Islands. He is an authority on matters of Virgin Islands law and the legal issues arising from the relationship between federal and territorial courts.