Pichardo v. Virgin Islands Commissioner of Labor

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 08-4259
___________

ELIZABETH PICHARDO,

Petitioner

v.

VIRGIN ISLANDS COMMISSIONER OF LABOR;
COOL IT, INC. d/b/a AGAVE TERRACE RESTAURANT,

Respondents
___________

On Writ of Certiorari from the Supreme Court
for the Virgin Islands
(S. Ct. Civ. No. 2007-061)

Argued December 2, 2009

Before: McKEE, Chief Judge, FUENTES, and NYGAARD,
Circuit Judges

1
 (Opinion Filed: July 8, 2010)

Joel H. Holt, Esq. (Argued)
2132 Company Street
Christiansted, St. Croix
United States Virgin Islands, 00820

Counsel for Petitioner Elizabeth Pichardo

Vincent F. Frazer, Esq.
Elliott M. Davis, Esq.
Richard S. Davis, Esq. (Argued)
Department of Justice
34-38 Kronprindsens Gade
GERS Building, Second Floor
St. Thomas
United States Virgin Islands, 00802

Counsel for Respondent Government of the Virgin
Islands

OPINION OF THE COURT

FUENTES, Circuit Judge:
Elizabeth Pichardo was terminated from her employment

2
at Agave Terrace Restaurant in St. Thomas after violating a
series of workplace rules and committing an act of
insubordination. She filed a complaint with the Virgin Islands
Department of Labor (“DOL”) under the territory’s Wrongful
Discharge Act. The DOL found that Pichardo was fired for
cause and denied her claim. The Superior Court of the Virgin
Islands upheld the DOL’s decision and rejected Pichardo’s due
process claims. Pichardo appealed the denial of her due process
claims to the newly-created Supreme Court of the Virgin
Islands, which affirmed. In this, the first case in which we have
granted certiorari to review a decision of the Virgin Islands
Supreme Court, we set forth our standard of review and hold
that we shall defer to decisions of the Supreme Court of the
Virgin Islands on matters of local law unless we find them to be
manifestly erroneous. Applying this standard to Pichardo’s
case, we will affirm the decision of the Virgin Islands Supreme
Court.
I.
Pichardo began work as a server and cashier at Agave
Terrace Restaurant on August 12, 1998. Between November
1998 and March 1999, she received four disciplinary write-ups.
Pichardo was subsequently fired in April 1999. The reasons for
these write-ups included: smoking around the restaurant’s
laundry area and leaving cigarette butts on the ground, failing to
properly clean her station at the end of work, failing to report for
a scheduled shift, and refusing to set tables. Following the third
write-up, Pichardo was suspended for two shifts. Pichardo then
received another disciplinary notice and was suspended for
allegedly threatening to sue her employer. The write-up stated
that she was spreading ill will and “causing more problems with

3
service throughout the restaurant.” (J.A. at 125.)
During the subsequent period between this suspension
and her termination, Pichardo did not return to work. She did,
however, write four separate memos to Agave, each dated April
7, 1999, responding to the disciplinary write-ups. Each of these
memos proffered explanations for the behavior cited in the
write-ups. Agave, in its written closing statement at the DOL
hearing regarding Pichardo’s termination, claimed that it did not
receive any of these responses until the date of the hearing. The
responses were also not in Pichardo’s personnel file. Agave
contended that they were “conjured up” long after the incidents.
(J.A. at 144.)
Pichardo was discharged on April 10, 1999 and filed a
complaint with the DOL, pursuant to the Virgin Islands
Wrongful Discharge Act, V.I. Code Ann. tit. 24, §§ 76-79, on
April 12, 1999. The complaint asserts that the reasons Agave
gave to Pichardo for her termination “were ‘hearsay’ that I had
stated I was going to sue the restaurant, which I totally disagree
with this reasons [sic].” (Id. at 101.) At the time of her
complaint, a preliminary injunction order in a separate matter
prohibited the DOL from holding hearings. It was lifted on June
30, 2000, but the Administrative Law Judge (the “ALJ”) did not
hold a hearing until January 14, 2002.
Both parties submitted exhibits and, though they both had
the opportunity to call witnesses, Pichardo presented only her
own testimony at the hearing. No transcript exists, but
according to the ALJ’s decision, Agave called five witnesses:
four Agave employees and the restaurant’s owner. All these
witnesses, according to the ALJ, testified about Pichardo’s poor
work performance, negative attitude, threats to co-workers, and
the writing of improper order tickets. They also recounted
numerous warnings given to her about her behavior. Pichardo
testified and, according to the ALJ, claimed that Agave’s
witnesses were lying. A ruling was issued nearly two years after
the one-day hearing, on December 16, 2003. Pichardo had

4
written the Commissioner of Labor on October 6, 2003
complaining about this delay.
The ALJ found that Agave had met its burden and had
demonstrated by a preponderance of the evidence that Pichardo
was fired for cause under V.I. Code Ann. tit. 24, § 76(a). The
ALJ found that the evidence satisfied § 76(a)(4), allowing
discharge of an employee “who willfully and intentionally
disobeys reasonable and lawful rules, orders, and instructions of
the employer,” as well as § 76(a)(9), which applies to an
employee “whose conduct is such that it leads to the refusal,
reluctance or inability of other employees to work with him.”
V.I. Code Ann. tit. 24, § 76(a)(4) & (9). The Commissioner
upheld the ALJ’s decision.
Pichardo filed pro se for review before the Superior
Court of the Virgin Islands on February 24, 2004.1 Pichardo v.
Benjamin, Civ. No. 85-2004 (V.I. Super. Ct. Mar. 30, 2007).
She invoked the Superior Court’s jurisdiction pursuant to V.I.
Code Ann. tit. 5, § 1421, which provides for judicial review of
administrative decisions. The Superior Court ordered the DOL
to produce a transcript of its hearing. The DOL instead filed a
Response to Order to Provide Record of Proceedings, which
stated that “the tape made of the proceeding in this matter is not
transcribable and therefore cannot be provided for the Court.”
(J.A. at 51.)2

1
At the time, the Superior Court was known as the
Territorial Court. On September 30, 2004, the Virgin Islands
Legislature passed Bill No. 25-0213 (effective October 29,
2004), changing the name of the Territorial Court of the Virgin
Islands to the Superior Court of the Virgin Islands.
2
The DOL submitted, in support of its response to the
Superior Court’s order, an affidavit from “the person charged
with transcribing the taped record of the proceedings.” (J.A. at
53.) It stated that the tapes could not be transcribed because
“[t]here are simply too many incomplete questions and answers
and incomplete sentences.” (Id.) Without noting the source of
its conclusion, the Superior Court stated that a transcript could
not be generated “because the recording was of poor quality.”
(Id. at 34.)

5
 Pichardo, represented by counsel, filed a motion on
September 28, 2004 to remand her case to the DOL for a new
evidentiary hearing. Agave opposed the motion, arguing both
that it would be prejudiced given the passage of time and that
the documentary evidence in the record was sufficient for the
court to review the DOL’s decision. The Superior Court did not
expressly rule on the motion to remand, but it stated in a briefing
order that it was “in receipt of the record of proceeding from the
Department of Labor.” (Id. at 61.) Pichardo filed a counseled
brief with the Superior Court and presented three issues for
review: (1) whether her due process rights were violated by the
DOL’s delay in rendering a decision; (2) whether her due
process rights were violated by the DOL’s failure to maintain
the “tapes of the transcript of the proceedings” and its
production of only the administrative file as the record of the
proceedings; and (3) whether Agave failed to meet its burden
under the Virgin Islands Wrongful Discharge Act, V.I. Code
Ann. tit. 24, § 76, et. seq.
The Superior Court affirmed the DOL’s decision. First,
it acknowledged that “[the] case has been plagued by
unexplained delays,” but it determined that “a writ of review is
not the proper method to address such complaints.” (J.A. at 37.)
Such delays, the court found, have little to do with whether
Agave had cause to terminate Pichardo. Second, the court
declared that it would resolve the transcript issue by assuming
all objections had been timely raised, “affording Petitioner
protection of claims that she may have lost due to the absence of
said transcript.” (Id.) Third, the court upheld the ALJ’s
determination that Agave did not violate the Wrongful
Discharge Act, because it had grounds to terminate Pichardo for
disobeying her employer’s instructions. While the court noted
that Agave presented witnesses who testified to this effect, it did
not explain how it reviewed this testimony in the absence of a
transcript. Its analysis focused on Pichardo’s contention that the
witnesses, who worked for Agave, were interested witnesses.
The court concluded that it was not error for the ALJ to rely on
the testimony of an interested witness and that the ALJ’s
credibility determination must be accepted unless “contrary to
sound reason.” (Id. at 39.) The court further noted that
Pichardo had conceded that Agave “offered evidence of small

6
infractions.” (Id.) The accumulation of these infractions, the
court found, “was the basis for the termination.” (Id. at 39-40.)
Therefore, it concluded, the ALJ’s decision was “supported by
reasonable evidence.” (Id. at 40.)
Pichardo appealed to the Virgin Islands Supreme Court.
Pichardo v. Benjamin, Civ. No. 2007-061, 2008 WL 6054386
(V.I. Sup. Ct. Apr. 16, 2008). She challenged the Superior
Court’s refusal to consider her due process claims, but did not
challenge the ruling on the merits. The Supreme Court held that
it could not address Pichardo’s argument that she was denied
due process due to the delays before the DOL. Relying on V.I.
Code Ann. tit. 24, § 70, which provides for judicial review of
DOL decisions, the Supreme Court held that both it and the
Superior Court were limited to considering issues raised before
the Department of Labor. Section 70 provides that:
(a) Any person aggrieved by a final order of the
Commissioner granting or denying in whole or in
part the relief sought may obtain a review of such
order by filing in the Superior Court or the
District Court, within 30 days of its issuance, a
written petition praying that such decision of the
Commissioner be modified or set aside.
(b) No objection that has not been urged before
the Commissioner shall be considered by the
Court unless the failure or neglect to urge such
objection is excused because of extraordinary
circumstances. The findings of the Commissioner
as to the facts, if supported by substantial
evidence, shall be conclusive.
Focusing on § 70(b), the Supreme Court found that the issue of
delay had not been raised as an objection before the DOL, nor
was there evidence Pichardo “took any action to induce the DOL
to issue its decision in the many months following the hearing.”
2008 WL 6054386, at *2. The court further noted that Pichardo
did not allege any “extraordinary circumstance” that prevented
her from raising an objection.
The Supreme Court also rejected Pichardo’s contention
that her petition should be governed by V.I. Code Ann. tit. 5, §

7
1422, rather than V.I. Code Ann. tit. 24, § 70. Pichardo, in her
petition before the Superior Court, had sought review pursuant
to V.I. Code Ann. tit. 5, § 1421, which provides that:
Any party to any proceeding before or by any
officer, board, commission, authority, or tribunal
may have the decision or determination thereof
reviewed for errors therein as prescribed in this
chapter and rules of court. Upon the review, the
court may review any intermediate order
involving the merits necessarily affecting the
decision or determination sought to be reviewed.3
Section 1422 outlines the grounds for review under § 1421:
The writ of review shall be allowed in all cases
where there is no appeal or other plain, speedy,
and adequate remedy, and where the officer,
board, commission, authority, or tribunal in the
exercise of his or its functions appears to have
exercised such functions erroneously, or to have
exceeded his or its jurisdiction, to the injury of
some substantial right of the plaintiff.
The Supreme Court held that § 1422, which provides a general
writ of review, was not applicable because V.I. Code Ann. tit.
24, § 70, a narrower provision, specifically providing for review
from decisions by the DOL, applied.4

3
The Supreme Court did not address the fact that
Pichardo’s petition sought a writ of review pursuant to V.I.
Code Ann. tit. 5, § 1421. Moreover, although her petition
invoked 5 V.I.C. § 1421, the Superior Court’s order granting the
writ simply stated that Pichardo’s petition was brought pursuant
to Territorial Court Rule 15 and V.I. Code Ann. tit. 24, § 70(a).
(J.A. at 43, 47-48.)
4
In an order dated August 19, 2008, the Supreme Court
denied Pichardo’s petition for rehearing. It rejected her claim
that her October 6, 2003 letter to the Commissioner of Labor, in
which she complained about the ALJ’s delay in issuing a
decision, constituted an objection under § 70(b). The court
found that the letter did not “properly urge[] Pichardo’s

8
 Pichardo petitioned pro se for a writ of certiorari from
this Court and requested the appointment of counsel. Under 48
U.S.C. § 1613, the Third Circuit has temporary certiorari
jurisdiction over final decisions of the Virgin Islands Supreme
Court.5 By order dated February 12, 2009, we granted

objections before the Commissioner of Labor, as required by [§
70(b)].” (J.A. at 12.) It concluded that the letter merely sought
to induce the Commissioner to issue an opinion, rather than to
raise a constitutional claim, and accordingly denied rehearing.
5
The statute granting us certiorari jurisdiction provides
that:

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: Provided, That for the first
fifteen years following the establishment of the
appellate court authorized by section 1611(a) of
this title, the United States Court of Appeals for
the Third Circuit shall have jurisdiction to review
by writ of certiorari all final decisions of the
highest court of the Virgin Islands from which a
decision could be had. The Judicial Council of the
Third Circuit shall submit reports to the
Committee on Energy and Natural Resources of
the Senate and the Committee on Natural
Resources of the House of Representatives at
intervals of five years following the establishment
of such appellate court as to whether it has
developed sufficient institutional traditions to
justify direct review by the Supreme Court of the
United States from all such final decisions. The

9
Pichardo’s petition on three specific issues:
(1) the merits of petitioner’s claims that excessive
delays and the absence of a transcript of her
hearing before the Virgin Islands Department of
Labor (“DOL”) deprived her of due process or
otherwise required the Virgin Islands Superior
Court to remand the matter to the DOL;
(2) whether the Virgin Islands Supreme Court
erred in not addressing petitioner’s claims
regarding the absence of a transcript; and
(3) whether petitioner’s claims are of the kind
that, under [V.I. Code Ann. tit. 24, § 70(b)], may
not be considered on a writ of review unless they
have been raised in the DOL in the first instance
(which might depend, inter alia, on whether the
DOL has jurisdiction to adjudicate such claims).
(J.A. at 1.) We also granted Pichardo’s motion for appointment
of counsel.
II.
This is the first time we have granted certiorari to review
a decision of the newly-created Supreme Court of the Virgin
Islands. We therefore take this occasion to define our standard
of review in such cases.
Congress amended the Virgin Islands Revised Organic
Act in 1984, establishing “the framework for a dual system of
local and federal judicial review in the Virgin Islands.” Parrott
v. Gov’t of Virgin Islands, 230 F.3d 615, 619 (3d Cir. 2000).6

United States Court of Appeals for the Third
Circuit shall have jurisdiction to promulgate rules
necessary to carry out the provisions of this
section.

48 U.S.C. § 1613.
6
We have described the Revised Organic Act as “the
basic charter of government” for the Virgin Islands. Brow v.

10
This amendment vested “[t]he judicial power of the Virgin
Islands” in a “‘District Court of the Virgin Islands’ established
by Congress, and in such appellate court and lower local courts
as may have been or may hereafter be established by local law.”
48 U.S.C. § 1611(a). In Parrott, we recognized that the 1984
amendments granted the Virgin Islands Legislature the power
“to divest the District Court of original jurisdiction for local
matters by vesting that jurisdiction in territorial courts
established by local law.” Parrott, 230 F.3d at 619 (citing 48
U.S.C. § 1611(b)); see also Edwards v. HOVENSA, LLC, 497
F.3d 355, 358 (3d Cir. 2007).
The Virgin Islands legislature subsequently enacted a
statute, effective October 1, 1991, granting the Superior Court
of the Virgin Islands (known at the time as the Territorial Court)
original jurisdiction over local civil actions. V.I. Code Ann. tit.
4, § 76(a). This provision, in combination with § 1613 of the
Revised Organic Act, served to “effectively repeal any grant of
concurrent jurisdiction to the District Court over local actions.”
Parrot, 230 F.3d at 620 (citing Brow, 994 F.2d at 1035-36); see
also Edwards, 497 F.3d at 358-59. Under the terms of the
Revised Organic Act of 1984, the District Court retained
jurisdiction over appeals from the local Virgin Islands courts
pending the establishment of a local appellate court. 48 U.S.C.
§ 1613a. These appeals were considered by an Appellate
Division of the District Court. Id. In turn, we possessed
jurisdiction over appeals from final decisions of the Virgin
Islands District Court “on appeal from the courts established by
local law.” Id. § 1613a(c).
On October 29, 2004, Virgin Islands Governor Turnbull
approved Act No. 6687, which established a Supreme Court of
the Virgin Islands. See Russell v. DeJongh, 491 F.3d 130, 132
(3d Cir. 2007); 2004 V.I. Sess. Laws 179, Act No. 6687 (B. No.
25-213) (codified as amended in scattered sections of V.I. Code
Ann. tit. 4). The Supreme Court of the Virgin Islands was
established “as the highest court of the Virgin Islands” and
granted “the supreme judicial power of the Territory.” V.I.
Code Ann. tit. 4, § 21. However, under the terms of the Revised

Farrelly, 994 F.2d 1027, 1035 n.6 (3d Cir. 1993).

11
Organic Act, for the first fifteen years after the establishment of
the Virgin Islands Supreme Court, we “shall have jurisdiction to
review by writ of certiorari all final decisions of the highest
court of the Virgin Islands from which a decision could be had.”
48 U.S.C. § 1613. Section 1613 also requires our Court to
submit reports to Congress regarding whether the Supreme
Court of the Virgin Islands has “developed sufficient
institutional traditions to justify direct review by the Supreme
Court of the United States from all such final decisions.” Id.
It is in light of this historic and statutory backdrop that
we must consider the nature of our review of the Supreme Court
of the Virgin Islands’ decisions. At the outset, we identify three
possible standards of review that we might apply to a decision
of the Virgin Islands Supreme Court. First, we might define our
role as that of a “super-Supreme Court,” with powers of review
equivalent to that of a state Supreme Court reviewing the
decision of an intermediary state appellate court. Second, our
role might be framed as equivalent to that of the United States
Supreme Court when it reviews decisions of a state Supreme
Court. See, e.g., Oregon v. Guzek, 546 U.S. 517, 521 (2006)
(holding that Supreme Court “possess[es] jurisdiction to review
state-court determinations that rest upon federal law”); Richfield
Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 84 (1946)
(declaring that the California Supreme Court’s construction of
state law is binding upon the United States Supreme Court).
Third, our review might demand substantial deference on
matters of local law. Under this third potential standard, which
the Ninth Circuit embraced in reviewing decisions by the
Supreme Court of Guam, “we may reverse the Supreme Court
only if it commits manifest error or is inescapably wrong.”
Haeuser v. Dep’t of Law, 368 F.3d 1091, 1093 (9th Cir. 2004).
Upon consideration of the purpose of Congress’ grant to
us of certiorari jurisdiction over the Virgin Islands Supreme
Court, as well as the treatment of similar statutes by the
Supreme Court and other circuit courts, we hold that this third
option – substantial deference – is the proper standard for our
review of decisions by the Supreme Court of the Virgin Islands.
It is, subject to our review for manifest error, the role of the
Virgin Islands Supreme Court to say what the law of the
territory is. We will reverse a decision of the Supreme Court of

12
the Virgin Islands that is based upon territorial law only if it is
inescapably wrong.
The standard we adopt today has previously been urged
upon this Court in relation to our review of decisions by the
Appellate Division of the District Court of the Virgin Islands,
which previously heard appeals from the Territorial Court. In
BA Properties v. Government of the United States Virgin
Islands, 299 F.3d 207 (3d Cir. 2002), we rejected the “manifest
error” standard and the proposition that the Appellate Division
should be treated “as if it were a local appellate or supreme
court.” Id. at 211-12; see also Saludes v. Ramos, 744 F.2d 992,
993-94 (3d Cir. 1984) (rejecting deferential standard of review
for Appellate Division decision). In reaching this conclusion,
we emphasized that the District Court of the Virgin Islands “is
essentially a federal creature, and not an insular appellate court.”
BA Properties, 299 F.3d at 212.
We also indicated in BA Properties that the Virgin
Islands Supreme Court, once it was established by the Virgin
Islands Legislature, would possess an authoritative voice on
matters of Virgin Islands law. Id. (recognizing that Virgin
Islands Supreme Court “would essentially have the final word
on the interpretation of local Virgin Islands law”). We
reinforced this position in a subsequent case decided after the
establishment of the Virgin Islands Supreme Court. In Edwards,
in which we reviewed a decision of the District Court of the
Virgin Islands that relied on Virgin Islands law, we declared that
“[g]oing forward, now that the Virgin Islands has established an
insular appellate court and will begin developing indigenous
jurisprudence, the District Court, when exercising jurisdiction
over cases requiring the application of Virgin Islands law, will
be required to predict how the Supreme Court of the Virgin
Islands would decide an issue of territorial law.” 497 F.3d at
362 n.3. These prior decisions do not, however, compel the
conclusion that the Virgin Islands Supreme Court, during the
period in which we possess certiorari jurisdiction, is not at all
subject to our review on matters of local law. Instead, we find
that a highly deferential standard of review is proper in light of
Supreme Court precedent and the nature of our own statutory
grant of certiorari jurisdiction.

13
 In Waialua Agricultural Co. v. Christian, 305 U.S. 91
(1938), the Supreme Court analyzed, in the context of then-
territorial Hawaii, the proper standard of review for a federal
court of appeals when considering a territorial court’s decision
regarding local substantive law. The Supreme Court granted
certiorari and cross-certiorari to review the Ninth Circuit’s
reversal of conclusions of law reached by the Supreme Court of
Hawaii. Id. at 93-94. The statute governing the Ninth Circuit’s
relationship to the Supreme Court of Hawaii at the time was not
identical to the provision governing our relationship to the
Virgin Islands Supreme Court.7 Nonetheless, we find the
principles and policy considerations underpinning the standard
of review articulated by the Supreme Court in Waialua
Agricultural relevant to our analysis.
The Court in Waialua Agricultural declared that “the
arguments of policy in favor of having the state courts declare
the law of the state are applicable to the question of whether or
not territorial courts should declare the law of the territories with
the least possible interference. It is true that under the appeal
statute the lower court had complete power to reverse any
ruling of the territorial court on law or fact but we are of the
opinion that this power should be exercised only in cases of
manifest error.” Id. at 109 (footnote omitted and emphasis

7
Section 128 of the Judicial Code, as amended in 1925,
granted the Ninth Circuit jurisdiction to review decisions of the
Supreme Court of Hawaii. It provided:

The circuit courts of appeal shall have appellate
jurisdiction to review by appeal or writ of error
final decisions . . . . In the Supreme Courts of the
Territory of Hawaii and of Porto Rico, in all civil
cases, civil or criminal, wherein the Constitution
or a statute or treaty of the United States or any
authority exercised thereunder is involved; in all
other civil cases wherein the value in controversy,
exclusive of interest and costs, exceeds $5,000,
and in all habeas corpus proceedings.

68 Cong. Ch. 229, 43 Stat. 936, 936 (Feb. 13, 1925).

14
added). While the applicable law granted broad powers to the
Ninth Circuit, the Supreme Court found that substantial
deference should be applied to this review. The Court held that
absent a “clear departure from ordinary legal principles, the
preference of a federal court as to the correct rule of general or
local law should not be imposed upon Hawaii.” Id.
In De Castro v. Board of Commissioners, 322 U.S. 451
(1949), a case involving the First Circuit’s review of a decision
of the Supreme Court of Puerto Rico, the Supreme Court
articulated a similarly deferential standard of review: “to justify
reversal by the federal courts of a decision of an insular supreme
court in a matter of local concern, the error must be clear or
manifest; the interpretation must be inescapably wrong.” Id. at
458 (quotation marks and citation omitted); see also Philippine
Sugar Estates Dev. Co. v. Gov’t of Philippine Islands, 247 U.S.
385, 390 (1918) (“This court is always disposed to accept the
construction which the highest court of a territory or possession
has placed upon a local statute. But that disposition may not be
yielded to, where the lower court has clearly erred.”) (citation
omitted). In De Castro, the Court revealed the policy concerns
that shaped this standard of review, including the desire to
“leave appropriate scope for the development by those courts of
a system of law which differing from our own in its origins and
principles, would nevertheless be suitable to local customs and
needs.” 322 U.S. at 454-55.
The differences between 12 U.S.C. § 1613, which grants
us certiorari jurisdiction over the Virgin Islands Supreme Court,
and 28 U.S.C. § 1257, which grants the United States Supreme
Court certiorari jurisdiction over the highest State courts, lend
further support for this distinct standard of review. Section
1257(a) provides that:
Final judgments or decrees rendered by the
highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court by
writ of certiorari where the validity of a treaty or
statute of the United States is drawn in question or
where the validity of a statute of any State is
drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of

15
 the United States, or where any title, right,
privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or
statutes of, or any commission held or authority
exercised under, the United States.
Under § 1257, the Supreme Court may review a decision of a
highest state court when the United States Constitution or a
federal law is implicated. The Court declines to review state
court decisions that rely upon an “adequate and independent”
state-law ground. Michigan v. Long, 463 U.S. 1032, 1041
(1983). Our statutory grant of authority places no similar
limitation upon our jurisdiction by writ of certiorari. It states
that, for the first fifteen years of the Supreme Court of the
Virgin Island’s existence, this Court “shall have jurisdiction to
review by writ of certiorari all final decisions of the highest
court of the Virgin Islands from which a decision could be had.”
48 U.S.C. § 1613 (emphasis added). Our review is not limited
to cases that implicate the United States Constitution or federal
law. See EIE Guam Corp. v. Supreme Court of Guam, 191 F.3d
1123, 1125 (9th Cir. 1999) (declaring that Ninth Circuit, in
reviewing decisions by the Supreme Court of Guam under a
statute virtually identical to 48 U.S.C. § 1613, “has authority to
review not only federal issues, but also all issues of local law”).
Accordingly, while the Virgin Islands Supreme Court
“essentially [has] the final word on the interpretation of local
Virgin Islands law,” BA Properties, Inc., 299 F.3d at 212, it
remains subject to the deferential standard of review we
establish today. Such a standard, which also provides that we
will not be deprived of jurisdiction in cases in which the
decision relies upon “adequate and independent” territorial-law
grounds, best ensures that this Court can perform the role given
to us by Congress, to nurture the development of “sufficient
institutional traditions to justify direct review by the Supreme
Court of the United States.” 48 U.S.C. § 1613.8

8
Local Appellate Rule 112.1 outlines the “character of
reasons” that guide our decision of whether or not to grant a writ
of certiorari. These considerations include that “[t]he Supreme
Court of the Virgin Islands has decided an important question of

16
 The standard of review we embrace today also accords
with that applied by the Ninth Circuit Court of Appeals during
the recent period in which it exercised certiorari review over the
Supreme Court of Guam. The statute providing for this review,
for the first fifteen years following establishment of the
Supreme Court of Guam, was nearly identical to the statute
granting us jurisdiction to review decisions by the Supreme
Court of the Virgin Islands.9 See 48 U.S.C. § 1424-

federal or territorial law that has not been, but should be,
decided by this court.” Local Appellate Rule 112.1(a)(3). This
rule accords with our holding that, although we pay substantial
deference to the Virgin Islands Supreme Court’s decision on
matters of territorial law, we retain authority to review those
decision for manifest error.
9
The current statute provides that:

The relations between the courts established by
the Constitution or laws of the United States and
the local courts of Guam 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. § 1424-2. A 2004 amendment removed the language
providing for certiorari review by the Ninth Circuit. The
omitted portion had read:

Provided, That for the first fifteen years following
the establishment of the appellate court authorized
by section 1424-1(a) of this title, the United States
Court of Appeals for the Ninth Circuit shall have
jurisdiction to review by writ of certiorari all final
decisions of the highest court of Guam from
which a decision could be had. The Judicial

17
2 (2000). In exercising its discretionary review under § 1424-2,
the Ninth Circuit sought to “balance the temporary power of
oversight that Congress has given us with Congress’s clear
intent to allow Guam to develop its own, independent
institutions.” Gutierrez v. Pangelinan, 276 F.3d 539, 546 (9th
Cir. 2002) (quotation marks and citation omitted). The Ninth
Circuit therefore reviewed decisions of the Guam Supreme
Court that involved local law – whether interpreting statutes
enacted by the Guam Legislature or developing Guam’s
common law – by applying a “deferential standard of review.”
Id. Under this standard the Ninth Circuit would affirm a
decision interpreting a Guam statute “‘where . . . the Guam
Supreme Court appears to have construed [the] statute
reasonably and fairly.’” Id. (quoting EIE Guam Corp., 191 F.3d
at 1127); see also Guam v. Guerrero, 290 F.3d 1210, 1213 (9th
Cir. 2002) (“We recognize that on matters of local concern,
appellate courts apply a highly deferential standard of review [to
a decision of a territorial supreme court].”) (citing, inter alia, De
Castro, 322 U.S. at 454).
In Haeuser v. Department of Law, the Ninth Circuit
discussed the change in its standard of review for decisions by
the Guam Supreme Court from its prior standard for review of
the Appellate Division of the District Court of Guam, which had
heard appeals from the territorial trial court. 368 F.3d at 1097-

Council of the Ninth Circuit shall submit reports
to the Committee on Energy and Natural
Resources of the Senate and the Committee on
N atural R esourc e s of th e H o u se of
Representatives at intervals of five years
following the establishment of such appellate
court as to whether it has developed sufficient
institutional traditions to justify direct review by
the Supreme Court of the United States from all
such final decisions. The United States Court of
Appeals for the Ninth Circuit shall have
jurisdiction to promulgate rules necessary to carry
out the provisions of this subsection.

Pub. L. No. 108-378, § 2.

18
98. It concluded that its prior rationale for not deferring to the
Appellate Division no longer applied when reviewing the Guam
Supreme Court, citing its own prior decisions in Gutierrez and
EIE Guam Corp. Id. at 1098. Examining the terms of the
statute establishing its certiorari review over the Guam Supreme
Court, the court reasoned that “[a]lthough Congress did not
explicitly state that greater deference must be paid to the Guam
Supreme Court, the text of § 1424-2 assumes that the Guam
Supreme Court will have the freedom to develop its own
‘traditions,’ which in turn, undoubtedly entails the creation of
legal precedent as well.” Id. at 1099. Congress expressed the
same intention in the statute governing our review of the Virgin
Islands Supreme Court, which requires us to report to Congress
regarding whether the new court “has developed sufficient
institutional traditions to justify direct review by the Supreme
Court of the United States.” 48 U.S.C. § 1613. The
development of such traditions requires some degree of
independence and demands that our oversight be marked by
considerable deference. See Haeuser, 368 F.3d at 1099
(“Unlike our review of the Appellate Division, our review of the
Guam Supreme Court requires us to defer to an insular judicial
system’s expertise in local matters as well as to honor Congress’
assumption that the Supreme Court would have the freedom to
develop sufficient legal traditions and precedent.”). As the
Ninth Circuit concluded, and we hold today, the degree of
deference we must afford to a territorial supreme court allows
for reversal on matters of local law only when “clear or manifest
error is shown.” Id.
III.
We now apply this standard of review to the three issues
upon which we granted Pichardo’s petition for writ of review.
We begin with the third issue we identified in the grant of
review: whether, under V.I. Code Ann. tit. 24, § 70(b),
Pichardo’s due process claims may only be considered by the
Virgin Islands court, on a writ of review, if they have first been
raised before the Department of Labor.
The Supreme Court of the Virgin Islands held that the
Superior Court “correctly declined to address Pichardo’s due
process arguments on a writ of review.” Pichardo, 2008 WL

19
6054386, at *1. The Superior Court had affirmed the DOL’s
determination that Pichardo was not wrongfully terminated. It
also held that it could not rule on Pichardo’s due process claim,
as such a claim was beyond the scope of the writ of review it
had granted, which focused on whether Pichardo was terminated
for cause. (J.A. at 37 [Pichardo v. Benjamin, Civ. No. 85-2004
(V.I. Sup. Ct. Mar. 30, 2007)]). The Virgin Islands Supreme
Court exercised plenary review over the Superior Court’s ruling
on Pichardo’s due process claim. 2008 WL 6054386, at *2.
After reviewing the record before it, the Supreme Court
concluded that Pichardo failed to raise any objection to the
DOL’s delay in conducting a hearing before the Commissioner
of Labor, nor did she take any action to induce the DOL to issue
a decision after the hearing occurred. Id. Since V.I. Code Ann.
tit. 24, § 70(b) only permits the Superior Court to consider
issues upon which an objection has been “urged before the
Commissioner,” the Supreme Court concluded that the Superior
Court lacked jurisdiction to hear Pichardo’s due process claim.10

10
Pichardo filed a petition for rehearing, which the Virgin
Islands Supreme Court denied. (J.A. at 10-13 (Order denying
Petition for Rehearing (Aug. 19, 2008).) Pichardo contended in
her petition that an October 6, 2003 letter she sent to the
Commissioner of Labor, expressing her discontent with the
Administrative Law Judge’s delay in issuing a decision in her
case, represented an objection sufficient to allow for review of
this issue. In denying rehearing, the Supreme Court noted that
the letter was not included in the Joint Appendix filed with
Pichardo’s appellate brief nor was it referenced in her brief.
(J.A. at 11-12.) Even absent these deficiencies, the Supreme
Court declared that it was not persuaded that the letter had
properly raised Pichardo’s objections before the Commissioner
of Labor. It found the letter merely expressed that she was
denied her rights “under the VI Rules and Regulations as
promulgated on March 18, 1981,” but did not assert that any
constitutional rights had been violated. (Id. at 12.) We have
independently reviewed the letter and agree that it raises no
objections that could be interpreted as an allegation of a due
process violation under the Constitution. (See Id. at 131.) We
find no basis for concluding that the Supreme Court manifestly

20
Accordingly, it found that it need not even reach the issue of
whether a due process claim could be raised pursuant to a writ
under V.I. Code Ann. tit. 24, § 70.
The Supreme Court also addressed a separate, but related,
issue raised by Pichardo: whether her petition for review of the
DOL’s decision should be governed by V.I. Code Ann. tit. 5, §
1422, rather than V.I. Code Ann. tit. 24, § 70. Section 1422
does not limit review to issues for which an objection was raised
before the entity whose decision is under review. The Supreme
Court found that § 1422 – which provides for review “in all
cases where there is no appeal or other plain, speedy, and
adequate remedy” – is a general review statute and “is only
applicable in the absence of another remedy.” 2008 WL
6054386, at *2. Since § 70 expressly provides for review of
decisions by the DOL, the Supreme Court found § 1422
inapplicable. Given the deferential standard that we have
declared governs our review of the Supreme Court’s decision in
this, a matter of Virgin Islands law, we find no manifest error in
the Supreme Court’s two decisions, that the writ of review under
§ 70 is limited to consideration of issues for which an objection
was raised and that § 1422 cannot be invoked to seek review of
decisions by the DOL, given the existence of § 70.11

erred in its determination that the letter did not constitute a
proper objection under V.I. Code Ann. tit. 24, § 70.
11
Since, pursuant to 48 U.S.C. § 1613, we are entrusted
with the task of overseeing the development of the Virgin
Islands Supreme Court’s “institutional traditions,” we take this
opportunity to comment on a seeming discrepancy in Virgin
Islands jurisprudence, which the Supreme Court did not discuss
in its decision. Virgin Islands courts have not treated the issue
of whether § 70 applies to review of DOL decisions
consistently. In Bachelor v. Pitt-Des-Moines, Inc., Civ. No.
262/1998, 2003 WL 553266 (Terr. V.I. Feb. 3, 2003), the
Territorial Court of the Virgin Islands reviewed the DOL’s
ruling in a Wrongful Discharge Act case pursuant to a writ of
review under V.I. Code Ann. tit. 5, §§ 1421-1423, without any
reference to § 70. However, a separate Territorial Court
decision, issued prior to Bachelor, embraced the position that

21
 Moreover, although Pichardo raised due process claims
under the United States Constitution, this does not alter our
conclusion. Although the Virgin Island Supreme Court’s
decision denied Pichardo the opportunity to have her due
process claim considered in this matter, a writ of review
pursuant to V.I. Code Ann. tit. 24, § 70 was not the only
available avenue for Pichardo to vindicate any due process right
related to the DOL’s delay. Pichardo could have brought an
action for an injunction or a writ of mandamus to compel the
agency to hold a hearing or issue a decision. She could have
filed an action pursuant to 42 U.S.C. § 1983, challenging the
alleged denial of her due process rights. Pichardo also could
have brought a claim in the Superior Court, pursuant to V.I.
Code Ann. tit. 24, § 79, concurrently with her action before the
DOL. Section 79 provides that “any wrongfully discharged
employee may bring an action for compensatory and punitive
damages in any court of competent jurisdiction against any
employer who has violated the provisions of [the Virgin Islands
Wrongful Discharge Act].” Accordingly, we conclude that the
constitutional nature of Pichardo’s claim does not give us cause
to alter our analysis where, as here, the Virgin Island Supreme
Court’s determination did not deny her the “opportunity to
protect” her due process rights and other judicial remedies
remained available. See Brinkerhoff-Faris Trust & Sav. Co. v.
Hill, 281 U.S. 673, 682 (1930) (“[W]hile it is for the state courts
to determine the adjective as well as the substantive law of the
state, they must, in so doing, accord the parties due process of
law.”).12

the Supreme Court of the Virgin Islands has now declared
proper: that judicial review from a decision of the DOL is only
available pursuant to § 70. In Peters v. Channel 8 (WSVI), Civ.
No. 1111/1992, 1994 WL 326548 (Terr. V.I. May 19, 1994), the
court considered Peters’s argument that it erroneously relied
upon § 70. Invoking the principle that a more specific statute
governs, rather than a more general one dealing with the same
subject, the court declared that § 70 and not § 1421 governed its
jurisdiction.
12
These alternative means of raising her due process
claims also compel us to reject Pichardo’s contention that the

22
 The first and second issues upon which we granted the
writ of certiorari can easily be disposed of. As for the first
issue, given our discussion above, we need not reach the merits
of Petitioner’s claim that she was denied due process by virtue
of the delays before the DOL. As for the second issue, Pichardo
failed to raise a claim regarding the lack of a transcript in her
brief before the Supreme Court, a point she concedes in her brief
before our Court. (Appellant’s Br. at 37.) Accordingly, we find
no basis for concluding that the Supreme Court committed any
error in failing to address her claims related to the Superior
Court’s review of the DOL’s determination in the absence of a
transcript.
Although this issue was waived and we therefore will not
speak to the merits of Pichardo’s due process claim on the
transcript issue, in our role of overseeing the development of the
Virgin Islands’ “institutional traditions” we will take this
opportunity to briefly emphasize the importance of a transcript
in ensuring proper review of an administrative hearing. We
have recognized, in other contexts, the importance of having an
adequate record available in order to provide meaningful
judicial review of an agency action. See Marincas v. Lewis, 92
F.3d 195, 202 (3d Cir. 1996) (review of asylum application); see
also Kheireddine v. Gonzales, 427 F.3d 80, 84 (1st Cir. 2005)
(describing how, in immigration proceeding, “due process
demands a reasonably accurate, reasonably complete transcript,
or an adequate substitute, to allow for meaningful and adequate
appellate review”) (quotation marks and citation omitted). The
Supreme Court, in McNary v. Haitian Refugee Center, Inc., 498
U.S. 479 (1991), noted that “the lack of recordings or
transcripts” of an immigration proceeding left the INS’

writ pursuant to V.I. Code Ann. tit. 5, § 1421-23 is applicable
here given that § 1422 provides that “[t]he writ of review shall
be allowed in all cases where there is no appeal or other plain,
speedy, and adequate remedy.” V.I. Code Ann. tit. 5, § 1422.
Although we defer to the Virgin Islands Supreme Court’s
holding that V.I. Code Ann. tit. 5, § 1421 does not apply to DOL
proceedings, to the extent that Pichardo claims that V.I. Code
Ann. tit. 5, § 1421 must be applied in order to vindicate her
constitutional claims, we find this contention unavailing.

23
administrative appeals unit with “no complete or meaningful
basis upon which to review application determinations.” Id. at
496.
W e find the Superior Court’s opinion problem atic
because, in reviewing the record for substantial evidence to
support the ALJ’s decision, it relied in part on the statements of
witnesses at the hearing, which it could not review absent the
transcript. It notes that the ALJ found Agave had grounds to
terminate Pichardo, noting “[r]espondent put forth six witnesses
whose testimony covered topics that included that Petitioner was
late 3 or 4 times a week, did not properly fill out tickets which
were given to the cook to prepare the food, failed to follow the
standards, and did not listen to manager’s orders.” (J.A. at 38.)
There is no citation to the source of this summary, but in the
absence of a transcript it can be assumed that it came from the
ALJ’s opinion. Throughout the Superior Court’s opinion, the
court merely states the ALJ’s findings and conclusions without
comparing these to an independent assessment of the record.
The only additional items in the record that the Superior Court
can be assumed to have reviewed, and which were also
presented to this Court, are the various employee write-ups from
Agave regarding Pichardo, Pichardo’s responses, a decision
relating to her Unemployment Insurance claim, statements
regarding her Unemployment Insurance payments, Agave’s
Cashier Rules, the restaurant’s Standards of Conduct and
Orientation Checklist, and a credit card receipt on which no tip
was left. Many of these items were authenticated and admitted
through the testimony of witnesses at the hearing, as noted in the
ALJ’s opinion. The ALJ’s decision substantially relied upon the
statements of these witnesses. (See J.A. at 94-97.) The decision
noted that “[c]omplainant brought fourth [sic] no witnesses
except herself and did not prove her testimony that all of
Respondent’s witnesses were lying.” (Id. at 96.) Accordingly,
the ALJ found “sufficient evidence in the sworn testimony of
the witnesses to support Respondent’s decision not to continue
Complainant’s employment for disobeying reasonable Orders,
not performing certain tasks and inability to work with other
employees.” (Id. at 97.) Absent the ability to review that
testimony directly, by reading the transcript, the Superior Court
lacked a sufficient record to properly review the ALJ’s decision.

24
We emphasize these deficiencies in order to raise the attention
of the Virgin Islands judiciary to the importance of a transcript
to facilitate a proper review of an administrative agency’s
decision.
IV.
For the foregoing reasons, we will affirm the Supreme
Court of the Virgin Islands’ decision.

25