Attorney Dwyer Arce Prevails Before En Banc CourtNews | August 21, 2018
Exactly six months ago today, Kutak Rock attorney Dwyer Arce argued on behalf of the Virgin Islands Bar Association before the full U.S. Court of Appeals for the Third Circuit sitting en banc. Dwyer appeared for the Bar Association as amicus curiae—or friend of the court—and urged the Third Circuit to recognize it no longer has jurisdiction to review decisions of the Supreme Court of the Virgin Islands. Today, the Third Circuit agreed, issuing a nearly unanimous decision holding that only the United States Supreme Court can review decisions of the Supreme Court of the Virgin Islands.
In its opinion, the Third Circuit outlined the long relationship between the Third Circuit and Virgin Islands courts. A U.S. territory since 1917, the “Virgin Islands was promptly assigned to the Court of Appeals for the Third Circuit by the Act of March 3, 1917,” along with Pennsylvania, New Jersey, and Delaware, today’s opinion explained. When the Supreme Court of the Virgin Islands was created in 2007, Congress provided for the Third Circuit in Philadelphia to review its decisions for 15 years, unlike state courts, where appeals from their highest courts are made directly to the U.S. Supreme Court. In 2012, acting on the recommendation of a Third Circuit review committee, 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, a three-judge panel of 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 Virgin Islands trial court before the effective date of H.R. 6116. Since then, the Virgin Islands Bar Association has advocated against that decision. The Bar Association has argued in a series of briefs filed as amicus curiae 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.
Today’s opinion, authored by Judge McKee and joined by 11 other judges, adopted the position Dwyer advocated on behalf of the Bar Association, expressly overturning the court’s earlier decision. Judge McKee explained for the court: “Perpetuating our certiorari review by extending it to all suits initiated in the Virgin Islands judicial system before H.R. 6116 was enacted is contrary to our recognition of the institutional competence of the Supreme Court of the Virgin Islands and the excellence of its jurisprudence.”
“It is incredibly gratifying to see the full Third Circuit finally recognize the institutional excellence of the Supreme Court of the Virgin Islands and reaffirm the right of Virgin Islanders to manage their own affairs with the same autonomy from federal oversight as all other Americans,” Virgin Islands Bar Association President Anthony Ciolli said after the ruling. Ciolli continued: “We are grateful to Dwyer’s superb advocacy and the support of Kutak Rock in securing this significant victory for the people 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 the federal government and America’s overseas territories.