PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1982
_____________
VIRGIN ISLANDS CONSERVATION SOCIETY, INC.,
Appellant
v.
VIRGIN ISLANDS BOARD OF LAND USE APPEALS
GOLDEN RESORTS LLLP
____________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 1-06-cv-00089)
Chief Judge: Honorable Curtis V. Gómez 1
District Judge: Honorable Juan R. Sánchez
Superior Court Judge: Honorable Michael C. Dunston
Argued: December 9, 2020
1
At the time this appeal was considered, Judge Curtis V.
Gómez was the Chief Judge of the District Court of the Virgin
Islands. This case has since been reassigned to Judge Wilma
A. Lewis. App. Div. Dkt. ECF No. 76.
Before: SMITH, Chief Judge, CHAGARES and MATEY,
Circuit Judges
(Opinion filed: August 23, 2021)
Andrew C. Simpson [ARGUED]
Andrew C. Simpson Law Offices
2191 Church Street, Suite 5
Christiansted, VI 00820
Counsel for Virgin Islands Conservation Society, Inc.
Denise N. George, Attorney General
Pamela R. Tepper, Solicitor General
Ian S.A. Clement, Assistant Attorney General [ARGUED]
Office of the Attorney General of the Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Dionne G. Sinclair
PMB2332
9160 Estate Thomas
St. Thomas, VI 00802
Counsel for Virgin Islands Board of Land Use Appeals
Treston E. Moore [ARGUED]
Moore Dodson & Russell
5035 (14A) Norre Gade
P.O. Box 310, Suite 201
2
St. Thomas, VI 00802
Counsel for Golden Resorts LLLP
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
In this long-running dispute, the Virgin Islands
Conservation Society, Inc. (“VICS”) — an environmental
advocacy organization — challenged a default permit that the
Virgin Islands Board of Land Use Appeals (the “Board”)
granted to Golden Resorts LLLP (“Golden”). VICS filed its
petition for writ of review in the Superior Court of the Virgin
Islands (the “Superior Court”), a territorial court, and
eventually appealed the Superior Court’s decision to the
Appellate Division of the District Court of the Virgin Islands
(the “Appellate Division”), another territorial court.
The question that confronts us on appeal is whether a
party appealing from the decision of a territorial court must
establish Article III standing when invoking our jurisdiction,
even though Article III standing is not required before the
territorial courts. We hold that the party invoking federal
jurisdiction must make this showing. But because the record
is insufficient for us to determine whether VICS has Article III
standing, we cannot determine our own jurisdiction at this
stage. We will consequently remand this case to the Appellate
Division with instructions to remand to the Superior Court to
supplement the record and certify its findings to this Court. We
will retain jurisdiction over this appeal on remand.
3
I.
The complex history of this case began when Golden
applied for a development permit to construct a hotel, casino,
and other amenities in September 2003. Because Golden’s
proposed development was located within the first tier of St.
Croix’s coastal zone, the Virgin Islands required that Golden
first receive a major Coastal Zone Management (“CZM”)
permit, V.I. Code Ann. tit. 12 [hereinafter V.I.C.], § 910(a)(1).
The Virgin Islands Coastal Zone Management Act of
1978, 12 V.I.C. § 901 et seq., governs how these coastal zone
permits are issued. Once an applicant submits a completed
permit application, one of the three committees of the Coastal
Zone Management Commission must hold a public hearing on
the application. Id. §§ 904(a), 904(b), 910(d)(2). The
committee has thirty days after this public hearing to “act
upon” the application. Id. § 910(d)(4). Its failure to do so
“shall be deemed an approval” of the permit application. Id.
The St. Croix Committee of the Coastal Zone
Management Commission (the “CZM Committee”) held the
statutorily required public hearing on Golden’s application on
January 8, 2004. VICS appeared at this hearing and submitted
written comments. At the hearing, Golden noted that it needed
additional time to respond to the public’s comments on its
application. The CZM Committee indicated that the thirty-day
statutory deadline could be extended. On January 20, 2004,
Golden wrote to the CZM Committee to ask that it “grant
[Golden] an extension of the decision date mandated by [12
V.I.C. § 910(d)(4)] in order to allow Golden Resorts to prepare
and submit a comprehensive response to the [submitted]
4
comments.” Appendix (“App.”) 764. Golden suggested that
it complete its response by February 6, 2004 — the day before
the thirty-day statutory deadline expired — and that the CZM
Committee hold a decisional meeting on February 13, 2004 —
six days after the statutory deadline passed.
This letter led to a series of correspondences in which
Golden and the CZM Committee argued about whether Golden
had waived the benefit of the statutory deadline for the CZM
Committee to act. On February 6 — the day Golden had
suggested it complete its responses — the CZM Committee
responded that it had received Golden’s January 20 letter and
construed the letter as “waiv[ing] [Golden’s] right to a decision
concerning [the permit application], within 30 days after
conclusion of the public hearing held on January 8, 2004.”
App. 765. Golden replied three days later, asserting that its
January 20 letter “did not constitute a general waiver” of the
thirty-day deadline and was instead “an extension of that
period to and until February 13, 2004.” App. 797. By the time
Golden replied, the thirty-day statutory period had elapsed on
February 7, 2004. The CZM Committee responded one final
time on February 13 to explain that it still interpreted Golden’s
January 20 letter as a waiver.
The CZM Committee had difficulty meeting its quorum
requirements and held the decisional meeting on May 26, 2004
— over three months after the statutory deadline expired.
Despite its letters asserting that Golden had waived the thirty-
day deadline, the CZM Committee concluded at the meeting
that its failure to act on the permit before the statutory deadline
meant that it had granted Golden a permit by default. The
CZM Committee, however, later rescinded the default permit
and set a new decisional meeting for August 2004.
5
Golden appealed the rescission to the Board, which
stayed the CZM Committee’s August decisional meeting
pending resolution of the appeal. The CZM Committee chose
to hold the August decisional meeting anyway and voted to
require that Golden submit additional information about its
permit application or else its application would be deemed
withdrawn. Golden appealed again to the Board, which
consolidated the two appeals. The Board subsequently issued
the default permit to Golden.
VICS filed a petition for writ of review with the
Superior Court in February 2005, challenging the default
permit and arguing, inter alia, that Golden’s application did not
meet the requirements of the CZM Act. The court allowed
Golden to intervene. In May 2006, the court affirmed the
Board’s decision to grant the default permit after concluding
that the Board acted within its statutory powers and that the
Board’s findings were supported by substantial evidence.
VICS appealed to the Appellate Division. In December
2007, the Appellate Division concluded that Golden did not
waive the CZM Committee’s statutory deadline. The
Appellate Division noted, however, that the administrative
record was incomplete and that it could not resolve VICS’s
challenge to the conditions of the default permit or determine
whether Golden’s permit application was sufficient because
the CZM Committee had not made factual findings about these
terms and conditions, Golden’s application, or its
Environmental Assessment Report. Because of this
incomplete record, the Appellate Division remanded to the
6
Superior Court (the “2008 remand”) 2 with instructions to
remand the case to the CZM Committee in turn “for further
factual consideration.” App. 61.
To complete the record on remand, the CZM Committee
adopted its staff report from May 2004, which had concluded
that Golden’s application did not meet several of the CZM
Act’s requirements. The CZM Committee submitted these
findings to the Superior Court in February 2010. VICS filed
these findings with the Appellate Division that same month.
The Superior Court issued an order a year later remanding the
case again to the CZM Committee, but this time to decide the
merits of VICS’s petition (the “2011 remand”). V.I.
Conservation Soc’y v. V.I. Bd. of Land Use Appeals, No. SX-
05-cv-83, 2011 WL 12663486, at *4 (V.I. Super. Ct. Feb. 14,
2011). The court reasoned that the Appellate Division in its
2008 remand had explained that courts should not substitute
their judgment for the agency’s judgment and consequently
concluded that the CZM Committee should decide in the first
instance the merits of VICS’s challenge to Golden’s
application. Id.
VICS subsequently sought a writ of mandamus from the
Appellate Division “to compel compliance with the [2008]
remand order” on the ground that the Appellate Division’s
2008 remand required only that the CZM Committee issue its
findings of fact and that the “appropriate appellate court []
review the findings of fact,” not that the case be remanded to
2
Although the Appellate Division issued its decision on
December 6, 2007, it did not issue the accompanying order
until February 1, 2008.
7
the CZM Committee on the merits. App. Div. Dkt. ECF No.
55 at 1–3. The Appellate Division did not rule on this petition.
The Superior Court issued an order in November 2013
requiring that its 2011 remand order be served on both the
CZM Committee and the Board. Approximately eight months
later, the Superior Court issued another order, noting that it was
still unclear whether the CZM Committee and Board had
received the 2011 remand order. The court again ordered that
the 2011 remand order be served on the CZM Committee and
that the CZM Committee comply with that order within ninety
days. The CZM Committee filed its analysis on the merits of
VICS’s petition for writ of review with the Superior Court in
November 2014. The Superior Court has not issued any
subsequent opinions or orders related to its 2011 remand order.
Although the CZM Committee submitted its findings of
fact in February 2010, the Appellate Division did not issue its
decision until over a decade later. On April 9, 2020, the court
affirmed the Superior Court’s 2006 decision that affirmed the
Board’s grant of a default permit to Golden. The court noted
that its “fact-finding record-remand order [had] been fulfilled.”
App. 18. Even though the Appellate Division had remanded
the case for the CZM Committee to supplement the record so
that the court could consider the merits of VICS’s petition, the
court did not consider the CZM Committee’s factual findings.
It instead affirmed the Superior Court’s 2006 decision on the
ground that the CZM Committee’s failure to act before the
thirty-day statutory deadline passed meant that Golden was
entitled to a default permit. The court did not reach the merits
of VICS’s petition but noted that “nothing in the CZM Act
precludes the Committee from subsequently imposing
conditions and recommendations on a CZM permit issued by
8
default.” App. 29. The Appellate Division also did not discuss
the Superior Court’s 2011 remand order. VICS timely
appealed from the Appellate Division’s decision. 3
3
While this case was on appeal before this Court, the
Superior Court issued an order on February 4, 2021, in which
it described Golden’s acquisition by non-party Jericho All
Weather Opportunity Fund, LP (“Jericho”). ECF No. 58 at 6.
We asked the parties to submit supplemental briefing regarding
whether this case is moot and to clarify which entity owns the
land and permit at issue. We take judicial notice of the Office
of the Virgin Islands Marshal’s Certificate of Sale, Jericho All-
Weather Opportunity Fund, L.P. v. Golden Resorts, LLLP, No.
SX-10-cv-295 (Super. Ct. Aug. 26, 2016), which describes
how Jericho now owns Golden and Golden’s permit. Golden
contends that it may validly transfer its permit to Jericho under
the applicable Virgin Islands regulations within a year of a final
decision in this matter because of an extension the Board
granted it in 2008. Golden Second Supp. Br. 3. VICS contends
that the Board lacked the power to issue this extension. VICS
Second Supp. Opp. Br. 5 n.4. The parties’ dispute about the
validity of the extension — and, necessarily, whether and when
Golden may transfer its permit — is pending in the Virgin
Islands Supreme Court, which stayed the proceedings pending
the final resolution of this appeal. VICS Br. 2. Jericho now
owns the relevant land, so if Golden did not validly transfer its
permit, then no entity would be able to develop the land
pursuant to the permit, and the case would arguably be moot.
Because the parties’ disputes are still ongoing and there has not
been a final determination with respect to the validity of the
permit’s extension and whether a subsequent transfer is
appropriate, we conclude that this case is not moot. See United
Steel Workers Int’l Union v. Gov’t of V.I., 842 F.3d 201, 208
9
II.
Before we review the merits of an appeal, we must
determine whether we have jurisdiction. See Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017)
(“[C]ourts are obliged to notice jurisdictional issues and raise
them on their own initiative.”). We raised sua sponte whether
the Appellate Division’s 2008 remand was a record or case
remand and whether VICS must show constitutional standing
before this Court. We hold that the Appellate Division’s 2008
remand was a record remand and that VICS must show Article
III standing, even though this case originated in the territorial
courts. Because the record is unclear with respect to whether
VICS has Article III standing, we will issue a record remand of
our own so that the Superior Court may make factual findings
with respect to VICS’s standing.
A.
Because many of the complexities in this case arise
from the history and structure of the Virgin Islands court
system, we briefly discuss the details that are relevant to this
case. See, e.g., Defoe v. Phillip, 702 F.3d 735, 738–40 (3d Cir.
2012) (describing the Virgin Islands court system). The Virgin
Islands has two trial courts: the District Court and the Superior
Court of the Virgin Islands. The District Court is an Article IV
court that has “the jurisdiction of a District Court of the United
States.” 48 U.S.C. § 1612(a). We hear appeals from the
District Court. See 28 U.S.C. § 1291.
(3d Cir. 2016) (“A case is moot when the issues presented are
no longer live or the parties lack a legally cognizable interest
in the outcome.” (citation and quotation marks omitted)).
10
The Superior Court has original jurisdiction over, inter
alia, civil matters involving Virgin Islands law. 4 V.I.C. § 76(a)
(“[T]he Superior Court shall have original jurisdiction in all
civil actions . . . .”). Until recently, the Appellate Division of
the District Court heard appeals from the Superior Court. See
48 U.S.C. § 1613a(a). Our Court in turn has appellate
jurisdiction over appeals from the Appellate Division. Id.
§ 1613a(c); Virgin Islands v. John, 654 F.3d 412, 416 (3d Cir.
2011).
This system of appellate review changed in the 2000s
when the Virgin Islands Legislature established the Supreme
Court of the Virgin Islands. The Virgin Islands Supreme Court
assumed jurisdiction over all subsequent appeals from the
Superior Court, 48 U.S.C. § 1613a(d), so the Appellate
Division no longer has appellate jurisdiction over the Superior
Court’s decisions. Defoe, 702 F.3d at 739. But the Appellate
Division retained jurisdiction over all appeals that were
pending before it when the Supreme Court of the Virgin
Islands was established. 48 U.S.C. § 1613a(d). We continue
to hear appeals from those decisions. Id. Once the last case
pending on the Appellate Division’s docket is resolved, the
Appellate Division will no longer exist. John, 654 F.3d at 416
n.1.
B.
Before we address whether VICS has Article III
standing, we will briefly address whether the Appellate
Division had jurisdiction to consider this matter after it initially
remanded the case to the Superior Court in 2008, because if the
Appellate Division lacked jurisdiction, we necessarily lack
jurisdiction as well. 48 U.S.C. § 1613a(c); see Storino v.
11
Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.
2003) (noting that courts must ensure that they and the courts
from which the record came have jurisdiction); see also
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S.
422, 431 (2007) (“[A] federal court has leeway ‘to choose
among threshold grounds for denying audience to a case on the
merits.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 585 (1999))). Because we conclude that the Appellate
Division’s 2008 remand was a record remand, we hold that the
Appellate Division had jurisdiction to issue its 2020 decision.
It is “a common practice among [appellate courts] to
retain jurisdiction over an appeal while making a limited
remand for additional findings or explanations.” In re Lipitor
Antitrust Litig., 855 F.3d 126, 151 (3d Cir. 2017). This
practice takes on greater significance in the Virgin Islands
because the Appellate Division cannot exercise jurisdiction
over matters that were not “pending” before it when the
Supreme Court of the Virgin Islands was created. 48 U.S.C.
§ 1613a(d). This matter was undoubtedly pending before the
Appellate Division when the Virgin Islands Supreme Court
began exercising its judicial authority on January 29, 2007,
because VICS first lodged its appeal with the Appellate
Division in June 2006. See Defoe, 702 F.3d at 738.
However, whether this matter remained pending before
the Appellate Division after its 2008 remand depends on
whether the Appellate Division issued a case or a record
remand. The Supreme Court of the Virgin Islands has defined
case and record remands as follows:
In a record remand, an appellate
court retains jurisdiction over the
12
case, i.e., jurisdiction over the case
remains with the court, but the
record is returned to the trial court.
In those circumstances, the trial
court may be directed to clarify or
amplify some portion of the
record, to make additional
findings, to hear further testimony,
or to explain a ruling. The point of
such a remand is to give the trial
judge the opportunity to complete
or clarify the record so that this
court will have an adequate basis
for review of the trial court’s
rulings. The trial court does not,
however, have the authority to
amend the ruling that is on appeal.
A “case” remand, on the other
hand, returns the case to the trial
court for all purposes. The
appellate court retains no
jurisdiction over the case and the
appeal is terminated. If, after a
case remand, a party is dissatisfied
with the action of the trial court,
the only course available to obtain
review in the appellate court, is to
file a new notice of appeal, once a
final order or judgment is entered.
That appeal is a new appeal,
separate from the previous appeal
that was terminated when the case
was remanded.
13
Hypolite v. People of V.I., 51 V.I. 97, 102–03 (V.I. 2009) (per
curiam) (quoting Hodge v. McGowan, 50 V.I. 296, 304 n.4
(V.I. 2008) (per curiam)) (brackets omitted). In other words,
when the Appellate Division issues a record remand, the
Appellate Division retains jurisdiction over the appeal so that
the matter remains pending before it. See id. at 103. If,
however, the Appellate Division issues a case remand, the
Appellate Division relinquishes jurisdiction over the appeal,
meaning that the matter is no longer pending before it and the
Supreme Court of the Virgin Islands has jurisdiction over any
subsequent appeals in the matter. See id. at 103–04.
The Appellate Division’s 2008 remand order and
accompanying opinion did not explicitly specify whether it
was issuing a case or a record remand. As the Superior Court
noted, the Appellate Division’s explanation that it “cannot and
should not attempt to substitute [its] judgment for that of the
agency” and that its “role as a reviewing court[] is to determine
whether the agency has correctly discharge[d] its duties”
suggests that the court issued a case remand to allow the CZM
Committee to consider the merits of VICS’s objections in the
first instance. See App. 53 n.21. Throughout the rest of the
opinion, however, the Appellate Division emphasized how it
could not determine whether the terms and conditions of the
permit were proper “[a]s a consequence of the absence of
factual findings regarding these issues.” App. 58; see also
App. 56 (“[W]e cannot address [VICS’s challenge to the
permit] at this juncture because the record below is
incomplete.”); App. 57 (“[W]ithout a complete administrative
record, our review is improper.”); App. 60 (“[The Superior
Court] should have remanded the matter for further factual
consideration.”); App. 61 (“[W]e shall remand this matter to
the Superior Court, with instructions to remand this matter to
14
the appropriate CZMA Committee for further factual
consideration.”). Because the Appellate Division’s language
indicates that it intended to remand for the limited purpose of
allowing the Committee to make factual findings, we conclude
that its 2008 remand was a record remand. Indeed, the
Appellate Division in its 2020 decision referred to its earlier
remand as a “fact-finding record-remand order.” App. 18.
Although the Appellate Division issuing a mandate and
closing the case can sometimes indicate that the remand is a
case remand, Hodge v. Bluebeard’s Castle, Inc., 62 V.I. 671,
684 (V.I. 2015), that the Superior Court received the mandate
after the 2008 remand in this case, ECF No. 58 at 8 n.1, does
not change our conclusion. When an appellate court issues a
remand, the trial court “must implement both the letter and
spirit of the mandate, taking into account the appellate court’s
opinion and the circumstances it embraces.” Bankers Tr. v.
Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985). If
the mandate provides that the trial court “shall proceed in
accordance with the opinion of the reviewing court,” this
language “make[s] the opinion a part of the mandate as
completely as though the opinion had been set out at length.”
Id. (quoting Noel v. United Aircraft Corp., 359 F.2d 671, 674
(3d Cir. 1966)). The Appellate Division’s mandate contained
certified copies of the Appellate Division’s 2008 remand order
and opinion and provided that it included the order and opinion
“in a formal mandate.” App. Div. Dkt. ECF No. 39. But the
Appellate Division did not close this case, and the 2008 remand
order itself provided that the matter was remanded “for further
consideration, consistent with the Memorandum Opinion filed
in this matter.” App. 32. Because the mandate incorporated
the Appellate Division’s opinion that provided for a record
remand, the fact that the Appellate Division issued the mandate
15
does not convert the Appellate Division’s record remand into
a case remand.
Because the Appellate Division issued a record remand,
it retained jurisdiction over this case while on remand and the
case remained pending before the court. See Hypolite, 51 V.I.
at 103–04. Only the record, not the entire case, returned to the
Superior Court on remand, id. at 102, so the Superior Court
exceeded the scope of this limited remand when it decided to
remand the case a second time to the CZM Committee on the
merits of VICS’s petition. We consequently conclude that the
Appellate Division had jurisdiction to consider and issue its
April 2020 decision.
C.
We next turn to the question of our own Article III
jurisdiction. Whether we have jurisdiction to hear this appeal
depends not only on whether the Appellate Division had
jurisdiction, but also on whether VICS must establish Article
III standing in this Court, even though we hear this case on
appeal from the non-Article III courts of the Virgin Islands. We
consider first the standing requirements in front of the
Appellate Division before addressing the standing
requirements of this Court. We hold that VICS must establish
Article III standing on appeal to this Court but that the record
is incomplete with respect to VICS’s alleged injury-in-fact. We
will consequently retain jurisdiction over this appeal and issue
a limited record remand for the Superior Court to make factual
findings with respect to VICS’s alleged injury.
1.
16
As a court of the Virgin Islands, the Appellate Division
is a “non-Article III court” and is not bound by Article III
requirements. In re Richards, 213 F.3d 773, 780 (3d Cir. 2000).
Even though it was “established by federal law, the Appellate
Division exercises ‘such appellate jurisdiction over the courts
of the Virgin Islands established by local law [i.e., the
Territorial Court] to the extent now or hereafter prescribed by
local law.’” Gov’t of V.I. v. Hodge, 359 F.3d 312, 316 (3d Cir.
2004) (quoting 48 U.S.C. § 1613a(a)). The Virgin Islands
Legislature consequently decides “who can appeal to the
Appellate Division, and when they can appeal.” Id. Because
local law establishes the Appellate Division’s jurisdiction and
because the Appellate Division is not an Article III court,
Article III standing is not required for appeals to that court. As
long as Virgin Islands law permits VICS to bring suit in the
territorial courts, VICS had standing to appear before the
Superior Court and the Appellate Division.
The Virgin Islands Code provides that “a petition for
writ [of] review may be filed in the [Superior Court of the
Virgin Islands] 4 in the case of any person aggrieved by the
4
Although § 913(d) provides that petitions should be
filed in the “District Court of the United States Virgin Islands,”
the Supreme Court of the Virgin Islands has explained that “the
reference to ‘the district court’ in section 913(d) — like all
references to the District Court in the Virgin Islands Code
enacted before the Legislature adopted 4 V.I.C. § 76 — has
been implicitly repealed.” Stewart v. V.I. Bd. of Land Use
Appeals, 66 V.I. 522, 529 n.6 (V.I. 2017) (quoting Kalloo v.
Estate of Small, 62 V.I. 571, 578 n.3 (V.I. 2015)) (brackets
omitted). VICS’s decision to file its petition for writ of review
in the Superior Court was consequently proper. See Bryan v.
17
granting or denial of an application for a coastal zone permit.”
12 V.I.C. § 913(d). The Code defines an “aggrieved person”
as “any person . . . who, in connection with a decision or
action of the [Committee] on an application for a major coastal
zone permit either appeared in person or through
representatives at a public hearing of the [Committee] on said
application, or prior to said decision or action informed the
[Committee] in writing of the nature of his concern.” Id.
§ 902(a).
VICS is clearly an “aggrieved person” within the
meaning of this statute. VICS not only appeared at the
Committee’s public hearing in January 2004, but also
submitted written comments expressing its concerns about
Golden’s permit application. Section 913(d) consequently
authorized VICS to file its petition for writ of review in the
Superior Court and to appeal the Superior Court’s decision to
the Appellate Division.
2.
Having concluded that standing under territorial law is
sufficient to appear before the Appellate Division, we turn next
to whether a party appealing to this Court from the decision of
a territorial court must show Article III standing and not merely
standing under territorial law. We hold that the party invoking
federal jurisdiction must establish that Article III’s standing
requirements have been met.
Ponce, 51 V.I. 239, 247 n.5 (V.I. 2009) (per curiam)
(reproducing § 913(d) but replacing “District Court” with
“[Superior] Court”).
18
Article III “limits the judicial power of the United
States to the resolution of ‘Cases’ and ‘Controversies,’ and
‘Article III standing . . . enforces the Constitution’s case-or-
controversy requirement.’” Hein v. Freedom From Religion
Found., Inc., 551 U.S. 587, 597–98 (2007) (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
The party invoking federal jurisdiction must have “(1) suffered
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016). To meet the injury-in-fact
requirement, the party must show that it has “suffered an
invasion of a legally protected interest that is concrete and
particularized and actual or imminent, not conjectural or
hypothetical.” Id. at 1548 (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)) (quotation marks omitted). The
deprivation of a procedural right can create Article III standing
in some instances, but the party must have been granted the
procedural right to protect a concrete interest and that
“concrete interest [must have been] affected by the
deprivation.” Summers v. Earth Island Inst., 555 U.S. 488, 496
(2009).
VICS asserts that this Court sits as an Article IV court
when reviewing decisions from the Virgin Islands, so standing
under territorial law alone is sufficient. But our reviewing a
decision from a territorial court does not change the fact that
we exercise the “judicial Power of the United States,” U.S.
Const. art. III, § 1, and are accordingly “a court of limited
jurisdiction,” Ortiz v. Dodge, 126 F.3d 545, 547 (3d Cir. 1997)
(reviewing a decision of the Appellate Division). It is well
established that “Congress may not expand the jurisdiction of
the federal courts beyond the bounds established by the
19
Constitution.” Verlinden B.V. v. Cent. Bank of Nigeria, 461
U.S. 480, 491 (1983). Accordingly, “Congress cannot erase
Article III’s standing requirements by statutorily granting the
right to sue to a plaintiff who would not otherwise have
standing.” Spokeo, 136 S. Ct. at 1547–48 (quoting Raines v.
Byrd, 521 U.S. 811, 820 n.3 (1997)); see also TransUnion LLC
v. Ramirez, 141 S. Ct. 2190, 2205 (2021) (“[E]ven though
Congress may elevate harms that exist in the real world before
Congress recognized them to actionable legal status, it may not
simply enact an injury into existence, using its lawmaking
power to transform something that is not remotely harmful into
something that is.” (quoting Hagy v. Demers & Adams, 882
F.3d 616, 622 (6th Cir. 2018)) (quotation marks omitted));
Summers, 555 U.S. at 497 (“[T]he requirement of injury in fact
is a hard floor of Article III jurisdiction that cannot be removed
by statute.”). Because Article III establishes the immovable
bounds of our jurisdiction, we hold that a party appealing from
the decision of a territorial court must establish Article III
standing when invoking our jurisdiction.
The plaintiff, “as the party invoking federal jurisdiction,
bears the burden of establishing [the Article III standing]
elements.” Spokeo, 136 S. Ct. at 1547. Where, as here, the
case originated in a state or territorial court in which Article III
standing requirements do not apply, the party appealing to or
seeking a writ of certiorari from a federal court must establish
that there is Article III standing before the federal court may
hear the appeal. Cf. ASARCO Inc. v. Kadish, 490 U.S. 605,
618 (1989). This requirement is easily met where the plaintiff
would have had Article III standing to commence the suit in
federal court from the outset. See id. at 617–18.
20
But what if the plaintiff would not have had Article III
standing to file suit in federal court from the beginning? In
other words, if local law does not require the plaintiff to show
an injury-in-fact and the plaintiff cannot show an injury-in-fact
at the time of the state- or territorial-court proceedings, how
can the appealing party make this showing on appeal? The
Supreme Court answered this question in ASARCO. There,
the plaintiff-respondents — individual taxpayers and the
Arizona Educational Association — sought a declaration in
Arizona state court that a state statute governing mineral leases
was void. Because state courts are not bound by Article III’s
requirements, the Arizona courts heard the case, even though
the plaintiff-respondents lacked Article III standing, and the
plaintiff-respondents ultimately prevailed before the Arizona
Supreme Court. Id. at 610, 612. The defendant-petitioners —
all present and future mineral lessees of state lands — filed a
petition for certiorari. The Supreme Court concluded that the
defendant-petitioners had standing when they invoked the
Court’s jurisdiction because the state-court decision “pose[d] a
serious and immediate threat to the continuing validity of [the
defendant-petitioners’] leases.” Id. at 618. Because the state-
court decision adversely adjudicated the defendant-petitioners’
legal rights, the court’s adjudication itself injured the
defendant-petitioners such that that they had constitutional
standing. Id. In reaching this decision, the Court emphasized
that the state-court judgment had “alter[ed] tangible legal
rights.” Id. at 619. In other words, losing before a state or
territorial court does not establish an injury-in-fact by itself.
The state or territorial court’s adverse judgment must “cause[]
direct, specific, and concrete injury” to the party who seeks to
invoke federal jurisdiction, “where the requisites of a case or
controversy are also met.” Id. at 623–24; see also IPSCO Steel
(Ala.) Inc. v. Blaine Constr. Corp., 371 F.3d 150, 154 (3d Cir.
21
2004) (noting in its statutory standing discussion that “a party
who does not intervene in the district court (or did not have
Article III standing to pursue the original action) may
nevertheless have standing to pursue an appeal if it can show
that it was adversely affected by the judgment”).
The Court of Appeals for the Ninth Circuit reached the
same conclusion in an appeal from the Guam Supreme Court.
In Gutierrez v. Pangelinan, 276 F.3d 539 (9th Cir. 2002), the
plaintiff-respondents relied on taxpayer standing to file suit in
the Guam territorial courts, alleging that the Governor of
Guam’s failure to sign a bill meant that he had pocket vetoed it
under the Guam Legislature’s procedural rules and local law.
Id. at 543–44. Meanwhile, the Governor argued that local law
allowed him to pass bills into law without signing them. Id. at
546. The Supreme Court of Guam agreed with the plaintiff-
respondents, and the defendant-petitioners — including the
Governor — petitioned for writ of certiorari from the Court of
Appeals for the Ninth Circuit. Id. at 544. The court concluded
that, even though the plaintiff-respondents lacked Article III
standing, the defendant-petitioners had constitutional standing
to invoke federal jurisdiction because the Guam Supreme
Court’s decision caused a direct, specific, and concrete injury
to the Governor by nullifying his right to allow bills to pass
into law without his signature. Id. at 545–46.
Unlike the defendant-petitioners in ASARCO and
Gutierrez, VICS cannot show that the Appellate Division’s
decision adversely adjudicated its legal rights for the same
reason that it cannot establish Article III standing in the
traditional sense — the record is entirely devoid of information
about VICS’s interest or legal rights. VICS concedes as much.
VICS First Supp. Br. 16. Without any information about what
22
VICS’s interest in this case is or how its legal rights are at stake,
we can determine neither whether the Board’s decision to grant
Golden the default permit injured VICS such that it had Article
III standing in the traditional sense and could have filed suit in
federal court from the beginning, nor whether the Appellate
Division’s decision affirming the granting of the permit injured
VICS such that it can establish standing as provided in
ASARCO. We recognize that the Superior Court and the
Appellate Division, as territorial courts, had no reason to
consider whether VICS suffered an injury-in-fact. But the
incomplete record renders it impossible for us to determine
whether Golden’s default permit injured VICS and whether we
thus have jurisdiction.
VICS contends that its loss before the Appellate
Division constitutes an injury-in-fact because the court did not
review the merits of VICS’s objections to Golden’s permit. We
are not convinced. VICS is correct that “aggrieved persons”
have the right to appeal the granting of a permit to the Board
and to seek a writ of review from the Superior Court. 12 V.I.C.
§§ 913(d) (aggrieved persons may file a petition for writ of
review in the Superior Court), 914(a) (if the CZM Committee
grants or denies a permit application, the aggrieved person may
file an appeal with the Board). But Sections 913 and 914 only
provide an aggrieved person with procedural rights. And VICS
exercised its procedural right as an aggrieved person under
§ 913 when it filed a petition for writ of review in the Superior
Court. Both the Superior Court and Appellate Division’s
decisions affirming the Board’s decision to grant the default
permit did not interfere with or impair VICS’s right to appeal
in any way. Even if VICS had been deprived of this procedural
right, its “concrete interest [must have been] affected by the
23
deprivation” for Article III standing to exist. 5 Summers, 555
U.S. at 496. But on this record, we cannot determine what
concrete interest VICS has, let alone whether it has been
affected by the alleged deprivation of VICS’s procedural right.
5
Chief Judge Smith reads International Primate
Protection League v. Administrators of Tulane Educational
Fund, 500 U.S. 72 (1991), to establish that the deprivation of a
limited class of “procedural” rights can form the basis of
Article III standing without the need for that procedural right
to protect a concrete interest. In International Primate, the
Court held that regardless of whether the plaintiffs had Article
III standing to bring their underlying state-law claims, they had
standing to challenge the defendant’s removal of their case to
federal court because they “lost the right to sue in Louisiana
[state] court—the forum of their choice.” Id. at 77. The
deprivation of this “procedural” right — to have a state court
adjudicate their claims — was sufficient to confer Article III
standing because 1) the improper removal purportedly violated
a federal statute, 2) the injury was fairly traceable to the
defendant’s removal, and 3) the injury was redressable by a
decision that removal was improper. Id. The International
Primate Court never analyzed the “procedural” injury for
concreteness. Indeed, Chief Judge Smith does not see how a
Spokeo-TransUnion concreteness inquiry could be applied to
procedural rights like the right to proceed in state court sans
improper removal. Assuming the continuing vitality of
International Primate in the wake of Spokeo and TransUnion,
Chief Judge Smith does not read the Court’s holding in
International Primate to compel a different result for
VICS: any theoretical deprivation of VICS’s procedural rights
as an “aggrieved person” under 12 V.I.C. § 913(d) is not fairly
traceable to Golden or the Board’s challenged actions.
24
VICS’s statutory right under § 913 thus cannot be the basis for
Article III standing.
The Supreme Court in ASARCO made clear that a
losing party only has standing because of a court’s decision if
that decision adversely adjudicated the party’s legal rights and
caused a direct, specific, and concrete injury to the party
seeking to invoke federal jurisdiction. 490 U.S. at 623–24.
Because of the incomplete record, we cannot resolve this issue
at this stage nor determine our own jurisdiction. We will
consequently remand this case to the Appellate Division with
instructions to remand it to the Superior Court so that the
Superior Court can make factual findings regarding VICS’s
alleged injury and certify its factual findings to this Court. See
United States v. Genser, 582 F.2d 292, 311 (3d Cir. 1978)
(instructing trial court to certify factual findings to this Court).
These factual findings may include: VICS’s membership
structure; the relationship of VICS’s members to the land at
issue, which may include the frequency with and purposes for
which the members use the land or the “area affected by the
challenged activity”; and how and to what extent VICS and its
members will be impacted by the CZM permit. See Lujan, 504
U.S. at 563–67, 573 n.8 (requiring environmental
organizations and their members to show “through specific
facts” that they would be directly affected by the challenged
action and explaining that individuals can enforce procedural
rights “so long as the procedures in question are designed to
protect some threatened concrete interest of [theirs] that is the
ultimate basis of [their] standing”).
To be clear, we are issuing a limited record remand
solely for the purpose of supplementing the incomplete record.
In re Lipitor Antitrust Litig., 855 F.3d at 151 (“It is a common
25
practice among the Courts of Appeals to retain jurisdiction
over an appeal while making a limited remand for additional
findings or explanations.”); Genser, 582 F.2d at 311
(remanding “with instructions to conduct an evidentiary
hearing and to certify to this court its findings of fact” (footnote
omitted)); see also Biggs v. V.I. Bd. of Land Use Appeals, 884
F.2d 108, 113 (3d Cir. 1989) (remanding for the trial court to
make factual findings). We will retain jurisdiction over this
appeal while it is on limited remand. 6 See Genser, 582 F.2d at
311; 3d Cir. I.O.P. 7.1 (“When a panel deems it appropriate for
this court to retain jurisdiction without disposing of the case
and to remand to the district court or agency, . . . the panel
may do so and hold the appeal in abeyance.”).
III.
We sympathize with the parties’ frustration with these
decades-long proceedings. But “[n]o principle is more
fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.” Raines, 521 U.S.
at 818 (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26,
37 (1976)). Because it is unclear whether VICS has Article III
standing to pursue its appeal in this Court, we will order a
limited record remand in this case to the Appellate Division
with instructions to remand to the Superior Court for the
limited purposes of supplementing the record with respect to
VICS’s alleged injury and certifying its findings to this Court
6
Because we must remand this case so that the Superior
Court can make factual findings with respect to whether VICS
has suffered an injury-in-fact, we need not — and indeed,
cannot — reach the merits of VICS’s appeal at this stage.
26
in prompt proceedings consistent with this Opinion. We will
retain jurisdiction over this appeal.
27