Michael Dunston v. Governor of the Virgin Islands, et al

Filing

NOT PRECEDENTIAL OPINION Coram: CHAGARES, JORDAN and HARDIMAN, Circuit Judges. Total Pages: 4. Judge: HARDIMAN Authoring.

Case: 16-3234

Document: 003112495413

Page: 1

Date Filed: 12/22/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3234
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HONORABLE MICHAEL C. DUNSTON,
in his official capacity as Presiding Judge
of the Superior Court of the Virgin Islands
v.
GOVERNOR OF THE VIRGIN ISLANDS;
HAROLD W. WILLOCKS, strictly as interested party,
Governor of the Virgin Islands,
Appellant
____________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 1-16-cv-00038)
District Judge: Honorable Curtis V. Gomez
____________
Argued December 13, 2016
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.
(Opinion Filed: December 22, 2016)
Geoffrey P. Eaton [Argued]
Steffen N. Johnson
Andrew C. Nichols
Winston & Strawn LLP
1700 K Street NW
Washington, DC 20006

Case: 16-3234

Document: 003112495413

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Date Filed: 12/22/2016

Claude E. Walker
Pamela R. Tepper
Su-Layne U. Walker
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Counsel for Appellant
Edward L. Barry [Argued]
2120 Company Street
Christiansted, VI 00820
Counsel for Appellee
____________
OPINION*
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HARDIMAN, Circuit Judge.
Virgin Islands Governor Kenneth Mapp appeals a judgment of the District Court
enjoining him from removing Michael Dunston as Presiding Judge of the Superior Court
of the Virgin Islands. Because subsequent legislation has rendered this case moot, we will
dismiss the appeal.
On June 16, 2016, Governor Mapp informed Judge Dunston that he would be
removed as Presiding Judge in favor of Judge Harold Willocks. Governor Mapp sent a
letter the following day informing Judge Dunston that the removal would be effective
June 25, 2016 at 11:59 p.m. In response, Judge Dunston filed a complaint with the

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
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Date Filed: 12/22/2016

District Court under the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a
declaration that the Governor’s attempt to remove him violated local law and the Revised
Organic Act, 48 U.S.C. §§ 1541–1645 and an injunction preventing his removal. On June
24, the Court entered a temporary restraining order enjoining the Governor from
removing Judge Dunston until July 8, and later extended that order to July 22. On July 22,
the District Court issued a permanent injunction preventing the Governor from removing
Judge Dunston, finding that Governor Mapp’s asserted authority would violate separation
of powers principles implicit in the Revised Organic Act.
The Virgin Islands Legislature has since passed, and the Governor has approved,
Act No. 7888. As relevant to this appeal, that Act provides: “The Presiding Judge of the
Superior Court holding office on the effective date of this Act may continue to serve as
Presiding Judge until the expiration of the current six-year term as a Superior Court
Judge.” App. 198. The Act further provides, “[n]othing contained in this title may be
construed to grant authority to the Governor of the Virgin Islands to remove . . . the
Presiding Judge of the Superior Court of the Virgin Islands.” App. 199.
“Article III of the Constitution grants the federal courts the power to adjudicate
only actual, ongoing cases or controversies.” Khodara Envtl., Inc. ex rel. Eagle Envtl.
L.P. v. Beckman, 237 F.3d 186, 192–93 (3d Cir. 2001). “The case-or-controversy
requirement subsists through all stages of federal judicial proceedings, trial and
appellate[,] . . . [and] the parties must continue to have a personal stake in the ultimate
disposition of the lawsuit.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (internal
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Date Filed: 12/22/2016

quotation marks and citations omitted). “[A] case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing party.” Id.
(internal quotation marks omitted).
By virtue of the District Court’s temporary restraining order and injunction, Judge
Dunston was never removed from his role as Presiding Judge.1 Therefore, he was the
Presiding Judge “holding office on the effective date of [the] Act.” As such, he is entitled
to serve the remainder of his six-year term. Whatever the merits of Governor Mapp’s
argument that he previously was authorized to remove Judge Dunston, he lacks that
authority today. Therefore, we are no longer capable of granting any effectual relief to
Governor Mapp regarding his attempt to remove Judge Dunston. Because this appeal
presents no live case or controversy, we will dismiss it for lack of jurisdiction.

1

Mapp argues that the equitable relief the District Court granted Dunston was
ineffectual for want of jurisdiction. We disagree because the District Court had federal
question jurisdiction over the interpretation of the Revised Organic Act—a federal law—
pursuant to 28 U.S.C. § 1331. See Kendall v. Russell, 572 F.3d 126, 131, n.4 (3d Cir.
2009) (striking down an act providing for removal of Superior Court judges as violating
separation of powers principles in the Revised Organic Act).
4