Birdman v. Office of the Governor

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 10-4189
_______________

HARVEY BIRDMAN; DIANE BIRDMAN; HERBERT
HIRSCH; BONITA HIRSCH; BARCLAY ASSOCIATES,
INC.; KINGSBRIDGE ASSOCIATES, INC.

Appellants

v.

OFFICE OF THE GOVERNOR;
BUREAU OF INTERNAL REVENUE;
UNITED STATES OF AMERICA

_______________

No. 11-1462
_______________

In re: HARVEY BIRDMAN; DIANE BIRDMAN;
HERBERT HIRSCH; BONITA HIRSCH,

Petitioners
_______________
 On Appeal from the District Court of the Virgin Islands
Division of St. Thomas and St. Thomas
(D.C. Civil Action No. 3-09-cv-00055)
District Judge: Honorable Curtis V. Gómez
_______________

Argued January 26, 2012
_______________

Before: AMBRO, CHAGARES and
HARDIMAN, Circuit Judges

(Opinion filed: April 12, 2012)

Joseph A. DiRuzzo, III, Esquire (Argued)
Mitchell S. Fuerst, Esquire
Fuerst Ittleman, PL
1001 Brickell Bay Drive, Suite 3200
Miami, FL 33131

Counsel for Appellants/Petitioners

Vincent F. Frazer
Attorney General
Bernard Van Sluytman
Solicitor General
Pamela R. Tepper (Argued)
Assistant Attorney General
Tamika M. Archer, Esquire
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor

2
Charlotte Amalie, St. Thomas, VI 00802

Kenneth L. Greene, Esquire
Jennifer M. Rubin, Esquire (Argued)
United States Department of Justice
Tax Division
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044

Joycelyn Hewlett, Esquire
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse, Room 260
Charlotte Amalie, St. Thomas, VI 00802

Dashiell C. Shapiro, Esquire
United States Department of Justice
Tax Division
P.O. Box 227
Ben Franklin Station
Washington, DE 20044

Counsel for Appellees/Respondents
_______________

OPINION OF THE COURT
_______________

AMBRO, Circuit Judge

These consolidated cases stem from a single lawsuit

3
by two married couples and their affiliated entities. They
sued the Virgin Islands and its tax agency seeking a
determination of the source of certain income, and the United
States seeking tax refunds. The United States District Court
of the Virgin Islands (the “V. I. District Court” or simply the
“District Court”) dismissed their claim against the Virgin
Islands and transferred their claims against the United States
to the United States District Court for the Southern District of
Florida. The plaintiffs have directly appealed the District
Court‟s dismissal of their claim against the Virgin Islands,
and they have filed a petition for a writ of mandamus
concerning their claims against the United States.1 For the
reasons that follow, we affirm the holding of the District
Court and deny the mandamus petition.

I. Background and Procedural History

Harvey and Diane Birdman formed a Virgin Islands
corporation, Barclay Associates, Inc. (“Barclay”). Herbert
and Bonita Hirsch also formed a Virgin Islands corporation,
Kingsbridge Associates, Inc. (“Kingsbridge”). During the
relevant time period, tax year 2006, Barclay and Kingsbridge
were among the limited partners in a Virgin Islands limited
liability limited partnership, Four Points Management LLLP
(“Four Points”). Barclay and Kingsbridge derived all of their
income from their stakes in Four Points.

The Birdmans and the Hirsches assert that they were
not “bona fide residents” of the Virgin Islands in 2006. See
I.R.C. § 937(a). However, they claim that a portion of their
income was “derived from sources within the Virgin Islands.”
See id. § 932(a)(1)(A)(ii). Specifically, Harvey Birdman‟s

1
Though in the first instance they are appellants and the
second petitioners, for convenience we define them below as
“Appellants.”

4
2006 tax return indicates that 85.7% of his income was
derived from the Virgin Islands; for Herbert Hirsch, it was
81.47%. The men, who filed jointly with their wives, claimed
that all of their Virgin Islands income came from Barclay and
Kingsbridge, respectively.

Taxpayers situated like the Birdmans and the
Hirsches—that is, taxpayers who are not “bona fide residents”
but claim to have derived some income from the Virgin
Islands—must file two tax returns. Id. § 932(a)(2). Their
Virgin Islands tax return should include taxes payable on all
income “derived from sources within the Virgin Islands.” Id.
§ 932(b)(1), (b)(2)(B). Their United States tax return should
include taxes payable on the remaining income. Id.
§ 932(a)(3), (b)(3).

Both couples in our case filed the proper 2006 tax
returns, one with the United States and one with the Virgin
Islands. But they each made only one payment. Rather than
paying the Virgin Islands its share, as § 932 requires, both
couples paid both their United States taxes and their Virgin
Islands taxes to the United States. The taxpayers allege that
they did so “with the good faith belief that the [United States]
IRS would pay the amount[s] due to the [Virgin Islands] to
the [Virgin Islands Bureau of Internal Revenue (“VIBIR”)],
or, alternatively, that the VIBIR would obtain the amounts
from the IRS.” Compl. ¶¶ 49, 52. The United States, though,
has neither paid those sums to the Virgin Islands nor refunded
them to the taxpayers. Nor has the Virgin Islands sought to
claim those sums from the United States. Caught between
Scylla and Charybdis, the Birdmans and the Hirsches
complain that they owe debts to the Virgin Islands that equal
their overpayments to the United States.

The Birdmans, the Hirsches, Barclay, and Kingsbridge
(collectively, the “Appellants”) brought this suit in 2009 in

5
the District Court. They named both the Virgin Islands
(including its agency, the VIBIR) and the United States as
defendants but sought different relief from each. Against the
Virgin Islands, they requested a “negative injunction” that
would compel the VIBIR to declare whether the income in
question was “derived from sources within the Virgin
Islands.”2 (They claim that the income was so derived, but
the United States IRS has challenged that claim in other
proceedings.) Against the United States, they requested
refunds of the amounts they contend they initially should
have paid to the Virgin Islands.

The Virgin Islands moved to dismiss Appellants‟ claim
against it pursuant to Rules 12(b)(1) (lack of subject matter
jurisdiction) and 12(b)(6) (failure to state a claim) of the
Federal Rules of Civil Procedure. The District Court granted
its motion to dismiss, holding that Appellants had failed to
state a claim against the Virgin Islands. In the alternative, the
Court held that Appellants‟ claim against the Virgin Islands
was not ripe for decision. This dismissal is before us on
direct appeal as case 10-4189.
The United States moved to dismiss Appellants‟
claims against it pursuant to Rule 12(b)(3), asserting that
venue was improper. In the alternative, it moved to sever

2
Because the proposed injunction “commands that acts be
done rather than not done,” it is a mandatory (or affirmative)
injunction, not a negative injunction. United States v. Apex
Oil Co., 579 F.3d 734, 739 (7th Cir. 2009); see also 11A
Charles Alan Wright et al., Federal Practice and Procedure
§ 2942 & n.37 (2d ed. 1995 & Supp. 2011). We retain the
“negative” label because Appellants used it in their arguments
to the District Court. See infra section III.A.

6
those claims and transfer them to the District Court for the
Southern District of Florida, where the Birdmans and the
Hirsches live. The V. I. District Court granted the United
States‟ alternative motion, transferring this part of the case to
the Florida venue pursuant to 28 U.S.C. § 1406(a). Before
the Court entered its transfer order, Appellants moved it to
certify an interlocutory appeal of that order to our Court
under 28 U.S.C. § 1292(b).3 They maintained that, under
48 U.S.C. § 1612(a), jurisdiction (and thus venue) is proper
only in the V. I. District Court. The District Court for the
Southern District of Florida stayed the case but re-transferred
it to the V. I. District Court for the limited purpose of ruling
on Appellants‟ motion to certify an interlocutory appeal. The
V. I. District Court then denied that motion. Appellants,
however, petitioned us for a writ of mandamus to compel the
V. I. District Court to accept jurisdiction and venue. That
petition is before us as case 11-1462.

We have consolidated case 10-4189 with case
11-1462, so all counts of Appellants‟ complaint are involved
in this case. But the issues are distinct. We must decide,
first, whether Appellants have stated a claim against the
Virgin Islands, and second, what the proper venue is for
Appellants‟ claims against the United States. The latter
question requires that we determine which courts have
jurisdiction over Virgin Islands tax matters under 48 U.S.C.
§ 1612(a).

3
As an order to transfer venue is not a final order, Appellants
could not appeal as of right at this stage. See In re Federal-
Mogul Global, Inc., 300 F.3d 368, 378 (3d Cir. 2002) (“It is a
well-established rule in this circuit (and generally) that
„orders transferring venue are not immediately appealable.‟”
(citation omitted)).

7
II. Jurisdiction and Standard of Review

The V. I. District Court had jurisdiction over
Appellants‟ claim against the Virgin Islands under 48 U.S.C.
§ 1612(a). We have jurisdiction under 28 U.S.C. §§ 1291 and
1294(3). Our review of the District Court‟s order granting the
Virgin Islands‟ motion to dismiss is plenary. McGovern v.
City of Phila., 554 F.3d 114, 115 (3d Cir. 2009). “We accept
all well-pleaded allegations in the complaint as true and draw
all reasonable inferences in [Appellants‟] favor.” Id. (citation
omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to „state a
claim to relief that is plausible on its face.‟” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ.
P. 8(a)(2) (“A pleading that states a claim for relief must
contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.”).

We have jurisdiction over Appellants‟ mandamus
petition under the All Writs Act, 28 U.S.C. § 1651. That Act
“gives appellate courts the power to issue a writ of mandamus
„in exceptional cases where the traditional bases for
jurisdiction do not apply.‟” United States v. Higdon, 638
F.3d 233, 245 (3d Cir. 2011) (quoting In re Pasquariello, 16
F.3d 525, 528 (3d Cir. 1994)).

III. Discussion

A. Claim Against the Virgin Islands

Appellants have asked the District Court to “compel
the [Virgin Islands] and the VIBIR to issue a determination of
the source of income for tax year 2006 as to Barclay and
Kingsbridge.” Compl. ¶ 61. In support of this request, they

8
cite delays by the United States IRS in its challenge to their
source of income for 2006 and other tax years. Id.

The Virgin Islands moved the District Court to dismiss
this count of the complaint for failure to state a claim. In
response to its motion, Appellants stated that they “relie[d]
upon [that] Court‟s equitable powers to issue a negative
injunction against the VIBIR for a determination of source of
income pursuant to 26 U.S.C. §§ 861-865.” Chief Judge
Gomez of the District Court at oral argument attempted to
clarify Appellants‟ position. He asked Appellants‟ counsel
four times to state their cause of action. J.A. at 303-05. Each
time, counsel responded that it was a “negative injunction.”
When Chief Judge Gomez reminded counsel that an
injunction is a remedy, not a cause of action, and that
plaintiffs must have a cause of action to seek a remedy,
counsel nonetheless responded: “Injunctive relief is a remedy.
And under the law where it‟s at it‟s also a cause of action.”
Id. at 305.

The District Court granted the Virgin Islands‟ motion
to dismiss on the basis that Appellants had not satisfied the
administrative requisites for a redetermination of their Virgin
Islands tax liability. It held in the alternative that any claim
Appellants might have against the Virgin Islands was not
ripe.

On appeal, Appellants urge that the V. I. District Court
misconstrued the nature of their claim. “[A]t no point did the
Appellants attempt to litigate their respective income tax
liabilities. . . . The Appellants‟ complaint . . . stated in no
uncertain terms that they were seeking a negative injunction.”
Appellants Br. at 40. They based no part of their appeal on
the cause of action that the District Court ascribed to them.
Yet Appellants now recognize that they must have a cause of

9
action to merit an injunction. They proffer two on appeal:
breach of contract and quasi-contract.

Appellants did not present these contract-based causes
of action to the District Court. Nowhere in their complaint or
trial memoranda on this issue does the word “contract”
appear, nor did they mention it in responding to Chief Judge
Gomez‟s repeated questioning. Those sources likewise do
not suggest how the Virgin Islands might be in breach (as the
operative paragraph of the complaint lists grievances only
against the IRS), or how it might have been unjustly enriched
(as Appellants paid the IRS, not the Virgin Islands, for the
year in question). If Appellants intended to make a contract
claim, their pleadings do not “„give the defendant[s] fair
notice of what the . . . claim is.‟” Twombly, 550 U.S. at 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Rather, “the pleading must contain something more by way of
a claim for relief than . . . a statement of facts that merely
creates a suspicion that the pleader might have a legally
cognizable right of action.” 5 Charles Alan Wright et al.,
Federal Practice and Procedure § 1216 (3d ed. 2004 & Supp.
2011).

“It is axiomatic that „arguments asserted for the first
time on appeal are deemed to be waived and consequently are
not susceptible to review in this Court absent exceptional
circumstances.‟” Tri-M Grp., LLC v. Sharp, 638 F.3d 406,
416 (3d Cir. 2011) (quoting United States v. Petersen, 622
F.3d 196, 202 n.4 (3d Cir. 2010)). The only causes of action
that Appellants present for our review were not argued before
the District Court. Thus, they have waived any ground on
which they might state a claim against the Virgin Islands.4

4
Appellants insist that “special circumstances” exist here that
justify a departure from our well-settled rule. However, they

10
 We also agree with the District Court that any claim
Appellants might have against the Virgin Islands is not ripe to
decide. “[F]ederal courts are only empowered to decide cases
and controversies” as our Article III jurisprudence defines
them. Felmeister v. Office of Att’y Ethics, 856 F.2d 529, 535
(3d Cir. 1988). Ripeness is among the requirements for a
case or controversy to exist. Id. To determine whether a
dispute is ripe, we must evaluate “the fitness of the issues for
judicial decision” and “the hardship to the parties of
withholding court consideration.” Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977).

Ripeness questions often arise when an agency has
announced a decision to take a certain action, but that action
remains tentative at the time of suit. The seminal cases of
Abbott Laboratories, cited above, and Toilet Goods Ass’n v.
Gardner, 387 U.S. 158 (1967), presented such facts. A
dispute generally is not ripe if the agency‟s “action „reflect[s]
the tentative nature of [its] conclusion,‟ in which the [the
agency] „expressly reserve[s] the possibility that [its] opinion
. . . might change.‟” Natural Res. Def. Council v. FAA, 292
F.3d 875, 883 (D.C. Cir. 2002) (quoting N.Y. Stock Exch.,
Inc. v. Bloom, 562 F.2d 736, 741 (D.C. Cir. 1977)). For
example, we held that a proposal to audit a hospital was not
fit for decision, and thus not ripe, because “„[a]n
investigation, even one conducted with an eye to
enforcement, is quintessentially non-final as a form of agency
action.‟” Univ. of Med. & Dentistry of N.J. v. Corrigan, 347
F.3d 57, 69 (3d Cir. 2003) (quoting Ass’n of Am. Med. Colls.
v. United States, 217 F.3d 770, 781 (9th Cir. 2000)). This is

do so on the basis of evidence outside the record, which we
decline to consider. See Fed. R. App. P. 10(a).

11
so because “the possibility that no enforcement action may be
taken is real for several reasons, not least of which is that the
[agency] may change [its] mind on one or more issues along
the way.” Id.

In our case, Appellants‟ claim is not ripe because the
Virgin Islands has taken no action whose legality we can
resolve. The 2006 Virgin Islands tax returns of the Birdmans
and the Hirsches indicate that they owe certain taxes. The
Virgin Islands has sent those taxpayers automated notices
reflecting their own assertion that the taxes are due.
However, it has made no formal determination of the amounts
that are in fact owed; indeed, that determination is the relief
that Appellants seek. Much less has it begun any
enforcement action. At oral argument, counsel for the Virgin
Islands indicated that the VIBIR has declined to take action
pending the outcome of this and other lawsuits. Oral Arg. Tr.
23, 28. Hence, the record presents us with a real possibility
that the Virgin Islands will never seek to collect the disputed
taxes.5

The causes of action that Appellants have pressed
against the Virgin Islands in our Court are waived, and in any

5
Our law in two related contexts bolsters our conclusion that
Appellants‟ claim is not ripe. Under the Administrative
Procedure Act, 5 U.S.C. § 500 et seq., courts generally cannot
compel an agency to enforce laws that Congress has charged
it with enforcing. See Heckler v. Chaney, 470 U.S. 821, 832
(1985) (“[A]n agency‟s decision not to take enforcement
action should be presumed immune from judicial review
. . . .”). And, under the Tax Anti-Injunction Act, courts
generally cannot enjoin the collection of disputed taxes. See
I.R.C. § 7421(a).

12
event their claim is not ripe in the unique context of this case.
We therefore affirm the District Court‟s dismissal of
Appellants‟ claim against the Virgin Islands.

B. Mandamus Petition Concerning Jurisdiction
over Virgin Islands Tax Matters

We also must determine the appropriate forum for
Appellants‟ claims against the United States. To repeat, the
District Court held that those claims “fall within the category
of claims” defined by 28 U.S.C. § 1346(a), which governs
certain claims against the United States. Appellants do not
challenge that conclusion. The proper venue for § 1346(a)
claims is, with exceptions not relevant, “in the judicial district
where the plaintiff resides.” Id. § 1402(a). The District Court
therefore transferred these claims to the District Court for the
Southern District of Florida, where the Birdmans and the
Hirsches live. See id. § 1406(a) (permitting district courts to
transfer cases to the proper venue). It denied Appellants‟
motion to certify an interlocutory appeal of this venue transfer
order pursuant to 28 U.S.C. § 1292(b).

Appellants petition us for a writ of mandamus to
compel the V. I. District Court to decide these claims. Under
48 U.S.C. § 1612(a), they maintain, no other trial court has
subject matter jurisdiction.

“The writ of mandamus is a drastic remedy that a court
should grant only in extraordinary circumstances in response
to an act „amounting to a judicial usurpation of power.‟”
Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir.
1996) (quoting Will v. United States, 389 U.S. 90, 95 (1967)).
For the writ to issue, the petitioner must have no other
adequate means to attain the relief sought, and the right to the
writ must be clear and indisputable. United States v. Higdon,
638 F.3d at 245 (citing Cheney v. United States Dist. Court

13
for D.C., 542 U.S. 367, 380-81 (2004)). “Even when these
prerequisites are met, however, the issuance of a writ is
„largely discretionary.‟” Id. (quoting Hahnemann Univ.
Hosp., 74 F.3d at 461).

We have established that “a writ of mandamus may
issue to compel a district court to vacate an order transferring
a case to another district.” In re United States, 273 F.3d 380,
385 (3d Cir. 2001) (issuing writ and citing three prior cases in
which we issued the writ for that purpose). Thus,
“„[m]andamus is . . . the appropriate mechanism for
reviewing an allegedly improper transfer order.‟” Id.
(quoting Sunbelt Corp. v. Noble, Denton & Assocs., 5 F.3d
28, 30 (3d Cir. 1993)).

Appellants‟ petition for a mandamus writ requires that
we construe the terms of the Revised Organic Act of the
Virgin Islands, 48 U.S.C. § 1541 et seq. It “is the Virgin
Islands‟ equivalent of a constitution, and as such, it is the
body of law that defines the jurisdictional boundaries of the
Virgin Islands courts.” Brow v. Farrelly, 994 F.2d 1027,
1032 (3d Cir. 1993) (citations omitted). In particular, it
defines the jurisdiction of the V. I. District Court, which
Congress established pursuant to Article IV, § 3 of the United
States Constitution. See Callwood v. Enos, 230 F.3d 627, 631
(3d Cir. 2000).

Prior to 1984, the Revised Organic Act provided
considerable overlap between the jurisdictions of the District
Court and the Territorial Court (now the Superior Court) of
the Virgin Islands. “„[W]hen Congress acted to establish the
District Court of the Virgin Islands, it established it as a court
of original and general jurisdiction.‟” Edwards v. HOVENSA,
LLC, 497 F.3d 355, 358 (3d Cir. 2007) (quoting Carty v.
Beech Aircraft Corp., 679 F.2d 1051, 1055 (3d Cir. 1982)).
“Under this jurisdictional framework, the District Court of the

14
Virgin Islands heard the majority of cases brought in the
Virgin Islands, whether those cases were brought under
federal law or local law, civil law or criminal law.”
Callwood, 230 F.3d at 630. Hence, we resolved numerous
disputes about the overlap in jurisdiction between the District
Court and the Territorial Court. See, e.g., Excavation Constr.,
Inc. v. Quinn, 673 F.2d 78, 80-82 (3d Cir. 1982); Pan Am.
World Airways, Inc. v. Duly Authorized Gov’t of V.I., 459
F.2d 387, 390-91 (3d Cir. 1972).

In 1984, Congress amended the Revised Organic Act
and refashioned the jurisdiction of the V. I. District Court.
Pub. L. No. 98-454, 98 Stat. 1732. “By virtue of these
amendments, the District Court now possesses the jurisdiction
of a[n Article III] „District Court of the United States,‟”
though it remains an Article IV Court. Parrott v. Gov’t of
V.I., 230 F.3d 615, 619 (3d Cir. 2000). The District Court
continued to have jurisdiction concurrent with the Territorial
Court. However, the Virgin Islands legislature could now
divest the District Court of jurisdiction over certain local
actions, see Estate of Thomas Mall, Inc. v. Territorial Court
of V.I., 923 F.2d 258, 263-64 (3d Cir. 1991), and did so in
1990, Brow, 994 F.2d at 1034. In effect, the relationship
between the District Court and the Superior (formerly
Territorial) Court, both of which are Article IV courts, now
somewhat resembles the relationship between Article III
federal district courts and state courts. See Edwards, 497
F.3d at 359; Parrott, 230 F.3d at 621.

Congress‟s 1984 amendments included the
jurisdictional language at issue in our case, which has not
been amended since.

The District Court of the Virgin Islands shall
have the jurisdiction of a District Court of the
United States, including, but not limited to, the

15
 diversity jurisdiction provided for in section
1332 of Title 28, and that of a bankruptcy court
of the United States. The District Court of the
Virgin Islands shall have exclusive jurisdiction
over all criminal and civil proceedings in the
Virgin Islands with respect to the income tax
laws applicable to the Virgin Islands, regardless
of the degree of the offense or of the amount
involved . . . .

48 U.S.C. § 1612(a) (emphasis added). The parties agree that
this is a “proceeding[] . . . with respect to the income tax laws
applicable to the Virgin Islands.” Id. Appellants thus reason
that the V. I. District Court has “exclusive jurisdiction” over
this case as against all other courts. In particular, they assert,
the District Court for the Southern District of Florida lacks
jurisdiction. The United States, which opposes the
mandamus petition, counters that the “exclusive jurisdiction”
language operates only against Virgin Islands local courts.6
Thus, the District Court for the Southern District of Florida
would have jurisdiction to resolve these claims.
Our inquiry into the meaning of a statute begins with
its plain language. See Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253-54 (1992). The grant of “exclusive
jurisdiction” here applies to “all criminal and civil
proceedings in the Virgin Islands with respect to the income
tax laws applicable to the Virgin Islands.” 48 U.S.C.
§ 1612(a) (emphasis added). A suit relating to Virgin Islands
income tax pending outside of the Virgin Islands would not
be a “proceeding[] in the Virgin Islands,” and “exclusive

6
“Local courts” include the Superior Court and the Supreme
Court of the Virgin Islands. See V.I. Code Ann. tit. 4, § 2.

16
jurisdiction” would not apply.7 In other words, the phrase “in
the Virgin Islands” provides a geographic limitation on the
grant of exclusive jurisdiction, but the V. I. District Court‟s
jurisdiction is “exclusive” only against other courts “in the
Virgin Islands.” See Thorstenn v. Barnard, 842 F.2d 1393,
1396 (3d Cir. 1987) (en banc) (“[The V. I. District Court] was
created by an act of Congress and exercises exclusive federal
jurisdiction in that Territory under the Revised Organic Act,
48 U.S.C. § 1612.” (emphasis added)).

The presumption against superfluities reinforces this
reading of the statutory language. “[W]hen interpreting a
statute, courts should endeavor to give meaning to every word
which Congress used and therefore should avoid an
interpretation which renders an element of the language
superfluous.” Rosenberg v. XM Ventures, 274 F.3d 137, 141
(3d Cir. 2001). Appellants suggest no use for the phrase “in
the Virgin Islands” beyond its use as a geographic qualifier,
and we can conceive of none. As the District Court
recognized, Appellants‟ construction of § 1612(a) would

7
Other statutes bestowing “exclusive jurisdiction” on a court
lack such language. For example, the United States Supreme
Court has “original and exclusive jurisdiction of all
controversies between two or more States.” 28 U.S.C.
§ 1251(a). Without any limitation on that grant of exclusive
jurisdiction, the Court held that jurisdiction was proper in no
other court. Mississippi v. Louisiana, 506 U.S. 73, 77-78
(1992); see also Pentax Corp. v. Myhra, 72 F.3d 708, 711
(9th Cir. 1995) (affirming that the district court lacked
jurisdiction where the statute provided without geographic
qualification that “the Court of International Trade shall have
exclusive jurisdiction”).

17
contain no geographic qualifier and thus would render part of
the statute superfluous.

Neighboring provisions of the Revised Organic Act
also show that the District Court‟s “exclusive jurisdiction”
over Virgin Islands tax matters is limited to proceedings vis-
à-vis local courts. Sections 1611, 1612, and 1613 of Title 48
each concern the jurisdiction of the V. I. District Court in this
context. In particular, “[t]he legislature of the Virgin Islands
may vest in the [local] courts . . . jurisdiction over all causes
in the Virgin Islands over which any court established by the
Constitution and laws of the United States does not have
exclusive jurisdiction.” 48 U.S.C. § 1611(b).
Correspondingly, without a grant of “exclusive jurisdiction”
in § 1612(a), the Virgin Islands legislature could vest
jurisdiction over Virgin Islands tax matters in local courts.
Cf. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08
(1962) (“Concurrent jurisdiction has been a common
phenomenon in our judicial history, and exclusive federal
court jurisdiction over cases arising under federal law has
been the exception rather than the rule.”). Moreover, local
court jurisdiction appears to be disfavored insofar as the
Virgin Islands tax code “mirrors” the United States federal
tax code. See Abramson Enters., Inc. v. Gov’t of V.I., 994
F.2d 140, 142 (3d Cir. 1993).

The legislative history of the 1984 amendments to the
Revised Organic Act further bolsters our interpretation of
§ 1612(a). The Senate record reiterates that “the income tax
laws applicable to the Virgin Islands are the provisions of the
Internal Revenue Code.” 130 Cong. Rec. 23,782, 23,789
(daily ed. Aug. 10, 1984). Thus, “uniformity of interpretation
requires that questions involving the interpretation of those
laws be litigated only in the Federal courts,” plural. Id. That
Congress meant “Federal courts” as opposed to local courts is
apparent in what follows: “This provision appears to be

18
necessary in view of the characterization of the income tax
laws of the Virgin Islands as a local Territorial tax which is
reviewable in the district court only by virtue of local
legislation.” Id. (citing Dudley v. Comm’r, 258 F.2d 182 (3d
Cir. 1958)). The Virgin Islands income tax is analogous to a
federal tax; thus, the Virgin Islands local courts lack
jurisdiction.8

For these reasons, we hold that the District Court of
the Virgin Islands has “exclusive jurisdiction” over
proceedings “with respect to the income tax laws applicable
to the Virgin Islands” only as against local courts in the
Virgin Islands. 48 U.S.C. § 1612(a). The contested language
is a division of jurisdiction in favor of the federal courts, in
contrast to local courts, with respect to Virgin Islands tax
cases. Because the clause “proceedings in the Virgin Islands”
has this meaning when read in its full context, it permits the
transfer of cases brought in the Virgin Islands to other federal
courts.

Appellants do not dispute the conclusion that if the
District Court for the Southern District of Florida has
jurisdiction, then the general venue rule of 28 U.S.C.
§ 1402(a) applies. See 48 U.S.C. § 1614(b) (“Where
appropriate, the provisions of . . . Title 28 . . . shall apply to
the [V.I.] district court . . . .”). Under § 1402(a), the only

8
The same legislative history states that Congress patterned
the tax provision of § 1612(a) after a similar provision in the
Organic Act of Guam. See 48 U.S.C. § 1421i(h)(1); Gov’t of
Guam v. Superior Court of Guam, 998 F.2d 754, 755 (9th Cir.
1993). It appears that no court has determined whether
district courts outside of Guam have jurisdiction over Guam
tax disputes.

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proper venue for this action is the Southern District of
Florida. The District Court‟s transfer of this dispute to that
District thus was not “a judicial usurpation of power, or a
clear abuse of discretion,” so mandamus should not issue.
Cheney, 542 U.S. at 380 (citations and internal quotation
marks omitted). Accordingly, we deny Appellants‟ petition
for a writ of mandamus.

It is possible that the multiple courts possessing
jurisdiction over Virgin Islands tax law may reach conflicting
conclusions. The same possibility inheres in the current
jurisdictional structure of federal tax law. In that context,
courts “temper the independence of the analysis in which
[they] engage by according great weight to the decisions of
the other circuits on the same question.” Wash. Energy Co. v.
United States, 94 F.3d 1557, 1561 (Fed. Cir. 1996). They do
so because “the need for uniformity of decision applies with
special force in tax matters.” Id. We presume that our sister
courts will exercise the same restraint in addressing questions
of Virgin Islands tax law.

IV. Conclusion
Appellants stated no cause of action against the Virgin
Islands in the District Court, so the causes of action they
allege on appeal are waived. In the alternative, any such
claim is not ripe, as the Virgin Islands has taken no
administrative action against Appellants regarding the tax
year 2006, tentative or otherwise.

The District Court of the Virgin Islands has “exclusive
jurisdiction” over V.I. tax cases only vis-à-vis V.I. local
courts. Thus, it may transfer those cases to other United
States district courts, provided that the other requirements of
jurisdiction and venue are satisfied.

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 We therefore affirm the order of the District Court
dismissing Appellants‟ claim against the Virgin Islands and
transferring venue of Appellants‟ claims against the United
States to the District Court for the Southern District of
Florida. We deny Appellants‟ petition for a writ of
mandamus.

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