Kevin Rodriguez, et al v. 32nd Legislature of the Virgin, et al

Filing

PRECEDENTIAL OPINION Coram: GREENAWAY, JR., SHWARTZ and FUENTES, Circuit Judges. Total Pages: 17. Judge: SHWARTZ Authoring.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-1518
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KEVIN A. RODRIQUEZ,
Appellant
v.
32ND LEGISLATURE OF THE VIRGIN ISLANDS;
SENATOR MYRON JACKSON
(D.C. No. 3-17-cv-0003)
JANELLE K. SARAUW; BRIGITTE BERRY
v.
KEVIN A. RODRIQUEZ; CAROLINE F. FAWKES;
VIRGIN ISLANDS JOINT BOARD OF ELECTIONS;
BOARD OF ELECTIONS ST. THOMAS & ST. JOHN;
CHRISTOPHER ALLEN KROBLIN;
32 LEGISLATURE OF THE VIRGIN ISLANDS
(D.C. No. 3-17-cv-00005)
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Appeal from the District Court of the Virgin Islands
(D.C. Nos. 3-17-cv-00003, 3-17-cv-00005)
District Judge: Hon. Curtis V. Gómez
______________
Argued May 4, 2017
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Before: GREENAWAY, JR., SHWARTZ, and FUENTES,
Circuit Judges.
(Filed: June 9, 2017)

Francis E. Jackson, Jr. [ARGUED]
1212 Bjerge Gade
P.O. Box 6591
St. Thomas, VI 00804
Counsel for Appellant
Edward L. Barry
2120 Company Street
Christiansted, VI 00820
Terri L. Griffiths [ARGUED]
P.O. Box 8647
St. Thomas, VI 00801
Counsel for Appellees Brigitte Berry and
Janelle K. Sarauw

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Kye Walker [ARGUED]
Suite 16AB 2nd Floor
2201 Church Street
Christiansted, VI 00820
Counsel for Appellee 32nd Legislature of the Virgin
Islands and Senator Myron Jackson
Ian S.A. Clement
Carol T. Jacobs
Ariel M. Smith-Francois
Pamela R. Tepper
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Counsel for Appellee Caroline F. Fawkes
Julita K. de Leon
Virgin Islands Bar Association
5600 Royal Dane Mall
Suite 203, P.O. Box 953
St. Thomas, VI 00802
Counsel for Appellees St. Thomas & St. John Board of
Elections
______________
OPINION OF THE COURT
______________

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SHWARTZ, Circuit Judge.
Kevin Rodriquez was elected to serve in the Virgin
Islands Legislature. After his election, Janelle K. Sarauw and
Brigitte Berry filed a lawsuit in the Virgin Islands Superior
Court against Rodriquez, the Virgin Islands Joint Board of
Elections, the Board of Elections of St. Thomas and St. John,
and Caroline F. Fawkes (the “Board of Elections
Defendants”) challenging Rodriquez’s qualifications to serve
as a member of the Legislature (the “Removed Action”).
Rodriquez removed that suit to federal court and filed his own
action against the 32nd Legislature of the Virgin Islands and
its president, Myron Jackson, essentially asking the District
Court to rule that only the Legislature can decide who is
qualified to serve in the Legislature (the “Federal Action”).
Because a judicial determination about whether Rodriquez is
qualified to serve as a member of the Virgin Islands 32nd
Legislature would infringe on the separation of powers
between the Virgin Islands legislative and judicial branches,
the Federal Action is no longer justiciable. As to the
Removed Action, Rodriquez does not having standing to
appeal the District Court’s order because he was a prevailing
party, and we have no meaningful relief to grant him. We
will therefore affirm the District Court’s dismissal of the
Federal Action and dismiss Rodriquez’s appeal of the
Removed Action.

I

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On November 8, 2016, the Virgin Islands held an
election to choose the seven senators to represent the District
of St. Thomas-St. John in the Virgin Islands’ 32nd
Legislature. The seats were to be filled by the top seven votegetters. Among the eighteen candidates running for the seats
were Rodriquez, who placed sixth and won a seat in the
Legislature, and Sarauw, who placed eighth and did not win a
seat. The Board of Elections certified the election results on
November 22, 2016.
After the election, Sarauw learned that on January 25,
2016, Rodriquez filed a bankruptcy petition in the United
States Bankruptcy Court for the Middle District of Tennessee
in which he swore under penalty of perjury that he lived in
Tennessee and had not lived in another state anytime during
the preceding three years. As a result, on December 9, 2016,
Sarauw and Berry, a volunteer for Sarauw’s campaign, filed
the Removed Action in the Superior Court of the Virgin
Islands, alleging that Rodriquez was not qualified to serve in
the Virgin Islands Legislature because he had not been a bona
fide resident of the Virgin Islands for at least three years
preceding the date of his election, as required by § 6(b) of the
Revised Organic Act (“ROA”), 48 U.S.C. § 1572(b). The
complaint sought, among other things, (1) a declaration that
Rodriquez does not meet the residency eligibility requirement
for Virgin Islands Legislators set forth in the ROA, and
(2) preliminary and permanent injunctive relief compelling
the Board of Elections to de-certify Rodriquez as a qualified
candidate and preventing him from taking a seat in the 32nd
Legislature.
On December 29, 2016, the Superior Court issued a
preliminary injunction enjoining Rodriquez from taking the

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oath of office and held that “[p]laintiffs [had] a reasonable
probability of showing that Rodriquez is not a bona fide
resident of the Virgin Islands for the three years preceding the
November 2016 election.” App. 457. On January 4, 2017,
the Virgin Islands Supreme Court denied Rodriquez’s petition
to appeal the Superior Court’s order.1
On the same day the Supreme Court ruled, the
Superior Court held a merits hearing on Sarauw and Berry’s
request for a permanent injunction, found that the Virgin
Islands was Rodriquez’s domicile, vacated the preliminary
injunction, and dismissed the case. Sarauw and Berry
appealed the Superior Court’s decision to the Virgin Islands
Supreme Court.
On January 8, 2017, the Virgin Islands Supreme Court
vacated the Superior Court’s order and held that Rodriquez
was “bound to his prior representations” to the Bankruptcy
Court for the Middle District of Tennessee under the doctrine
of judicial estoppel, and thus “cannot claim in this proceeding
to have been a bona fide resident of the Virgin Islands.” App.
540. The Supreme Court remanded the matter to the Superior
Court to consider whether the trial court’s jurisdiction to grant
further relief evaporates upon the establishment of the 32nd
Session of the Legislature because, under § 6(g) of the ROA,
48 U.S.C. § 1572(g), the Legislature is “the sole judge of the
elections and qualifications of its members.” To allow the
Superior Court to decide this issue, the Supreme Court issued
the following Order: “Kevin A. Rodriquez is ENJOINED
1

In an opinion filed on the same day, the Virgin
Islands Supreme Court characterized its ruling as an
affirmance of the Superior Court’s order.

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from taking the oath of office for the 32nd Legislature,
pending further order of this Court, so that the Superior Court
may conduct the appropriate proceedings on remand.” App.
543. On the morning of January 9—shortly before the
Legislature’s swearing-in ceremony—the Superior Court
issued its own order enjoining Rodriquez from taking the oath
of office. On the same day, the swearing-in ceremony was
held for new senators, and the 32nd Legislature was
convened. Rodriquez was not sworn in and has not taken a
seat in the Legislature.
On January 10, 2017, Rodriquez removed Sarauw’s
lawsuit to the District Court of the Virgin Islands pursuant to
28 U.S.C. § 1441 and filed the Federal Action. In the Federal
Action, Rodriquez essentially sought (1) a declaration that the
Virgin Islands Legislature has sole authority to determine its
members; (2) an order dissolving the Superior Court’s
preliminary injunction, as it violates the separation of powers;
and (3) an injunction directing the 32nd Legislature to seat
Rodriquez as a member. Thereafter, numerous motions were
filed. Sarauw and Berry filed a motion to remand the
Removed Action and to expedite proceedings, Rodriquez
filed a motion for summary judgment and to expedite
proceedings, and the 32nd Legislature and Jackson filed a
motion to dismiss the Federal Action.
The District Court denied the motion to remand the
Removed Action but thereafter dismissed it as moot. The
Court held that: (1) Sarauw and Berry’s request for a
permanent injunction compelling Fawkes and the Board of
Elections to decertify Rodriquez as a qualified candidate was
moot because the election results had already been certified;
and (2) Sarauw’s request for a declaration that Rodriquez

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does not meet the three-year residency requirement and is
legally ineligible for membership in the 32nd Legislature was
a moot “post-election challenge of the qualifications of a
candidate for the Virgin Islands Legislature.”2 App. 56.
The District Court also dismissed the Federal Action
and ruled that: (1) Rodriquez was not entitled to an injunction
directing the 32nd Legislature to seat him because an oath is a
qualification for membership in the Virgin Islands Legislature
and Rodriquez has not taken an oath and hence is not a
“member” of the 32nd Legislature; (2) even if Rodriquez
were a member of the 32nd Legislature, it would refrain from
using its equitable powers “to command a coordinate, coequal
branch of government to undertake a task—seating
Rodriquez—that is entirely and exclusively within the 32nd
Legislature’s control,” App. 43; and (3) Rodriquez was not
entitled to a declaration concerning the validity of § 6(g) of
the ROA—which states that the “legislature shall be the sole
judge of the elections and qualifications of its members,” 48
U.S.C. § 1572(g)—because it is inappropriate for a court to
pronounce the validity of a statute where, as in this case, the
statute’s validity is not at issue.

The District Court also denied Sarauw’s request for
an injunction barring Rodriquez from serving as a Senator
under 5 V.I.C. § 80 because that statute entitles taxpayers to
sue the government of the Virgin Islands or one of its officers
or employees to prevent a violation of the law and is
inapplicable to Rodriquez because he is not an officer or
employee of the Government of the Virgin Islands. This
ruling was not appealed.
2

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On the evening of February 7, 2017, after the District
Court issued its opinion, the Governor of the Virgin Islands
issued a proclamation calling for a special election to fill the
vacancy in the 32nd Legislature of the Virgin Islands. We
denied Rodriquez’s motions to stay the election and to enjoin
the Board of Elections from certifying the results. The
Special Election was held on April 8, 2017, and the
uncertified results reveal that Sarauw was the winner.
Rodriquez appealed the District Court’s orders, and we
granted the motion to consider his appeal on an expedited
basis.
II
The District Court had jurisdiction over both matters
under 28 U.S.C. § 1331 because the cases involve the
application of the ROA, which is a federal statute Congress
passed to provide a charter for the Virgin Islands government.
Kendall v. Russell, 572 F.3d 126, 135 (3d Cir. 2009); Brow v.
Farrelly, 994 F.2d 1027, 1032 (3d Cir. 1993). We have
jurisdiction under 28 U.S.C. § 1291.3 Because the District
3

Section 6(g) does not deprive a court of subject
matter jurisdiction.
Rather, § 6(g) raises issues of
justiciability based on separation of powers concerns similar
to those under the political question doctrine. Brown v.
Hansen, 973 F.2d 1118, 1121-22 (3d Cir. 1992) (considering
the court’s jurisdiction to review the Legislature’s actions
under § 6(g) and stating that justiciability doctrines such as
the political question doctrine do not deprive a court of
subject matter jurisdiction but rather “preclude[] courts from
granting relief that would violate the separation of powers”);

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Court dismissed the actions based on justiciability doctrines,
our review is plenary. United States v. Gov’t of V.I., 363
F.3d 276, 284 (3d Cir. 2004); Brown v. Hansen, 973 F.2d
1118, 1121 (3d Cir. 1992).
III
A
1
This case centers on the question of who should
determine Rodriquez’s qualifications to serve in the 32nd
Legislature of the Virgin Islands.4 Specifically at issue here
Mapp v. Lawaetz, 882 F.2d 49, 54 n.5 (3d Cir. 1989) (noting
that § 6(g) raises justiciability issues and proceeding to rule,
demonstrating that § 6(g) does not strip a court of
jurisdiction); see also Powell v. McCormack, 395 U.S. 486,
512 (1969) (stating that the separation of powers doctrine
does not divest a court of jurisdiction). Once the Court
satisfies itself that it has subject matter jurisdiction, it then
considers whether the case is justiciable. See Brown, 973
F.2d at 1121. Only after it is satisfied that it has both subject
matter jurisdiction and that the case presents a justiciable case
or controversy under Article III of the U.S. Constitution may
it turn to adjudicating the merits. Larsen v. Senate of
Commonwealth of Pa., 152 F.3d 240, 246 (3d Cir. 1998)
(stating that resolving justiciability issues must precede a
decision on the merits).
4
On appeal, Rodriquez does not argue that he met the
residency requirement or challenge the conclusion that he did
not meet it.

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is who should decide whether Rodriquez satisfied the
qualification that he has been a “bona fide resident of the
Virgin Islands for at least three years . . . preceding the date
of his election.” 48 U.S.C. § 1572(b).
To answer this question we must turn to the ROA—a
federal law that operates as the territorial Constitution of the
United States Virgin Islands, Kendall, 572 F.3d at 135. The
ROA empowers two bodies—the Board of Elections and the
Legislature—to evaluate the qualifications of the
Legislature’s candidates and members. See 48 U.S.C.
§ 1572(c), (g).
The ROA provides that the Board of Elections is
“charged with the duty of directing the administration of the
electoral system of the Virgin Islands.” Id. § 1572(c). At the
outset of the election process, the Board of Elections, a
popularly elected and independent entity, is empowered to
determine a candidate’s qualifications. 18 V.I.C. § 411
(stating that the Board is authorized to “determine[] that a
candidate for election or nomination does not meet the
qualifications established by law for the office,” and
“disqualify such candidate[s]” from an election); Bryan v.
Fawkes, 61 V.I. 201, 213-14 (2014) (stating that “the power
to determine whether a candidate meets the minimum
qualifications for office so as to appear on a general election
ballot is clearly not exclusive to the legislature”). Once the
election occurs, the Board of Elections has the power to
certify the results. 18 V.I.C.
§ 4(b)(4). Between the certification of the election and the
time the Legislature convenes, a court may review election
challenges that may change the results of the election, which
may occur, for example, if there has been a fraud. Bryan v.

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Todman, 28 V.I. 42, 45 (V.I. Terr. Ct. 1992), aff’d, 1993 WL
13141075 (D.V.I. Oct. 29, 1993); see also Bryan, 61 V.I. at
215, 217, 218 & n.5 (discussing the court’s role in reviewing
election matters). After the Legislature convenes, however,
the power to determine a winning candidate’s eligibility to
serve shifts to the Legislature. 48 U.S.C. § 1572(g) (stating
that “[t]he legislature shall be the sole judge of the elections
and qualifications of its members”); Bryan, 61 V.I. at 217.
2
The question before us is whether, once the Legislature
convenes, a court has the power to decide whether an
individual satisfies the qualifications to hold a seat in the
Legislature. A court’s power to review such matters is
influenced by its obligation to respect the separation of
powers among the branches of government. This is the
foundation of the political question doctrine, which dictates
that courts will not adjudicate political questions reserved for
the executive or legislative branches. Powell v. McCormack,
395 U.S. 486, 518 (1969) (“It is well established that the
federal courts will not adjudicate political questions.”);
Brown, 973 F.2d at 1121-22 (applying the political question
doctrine to questions reserved for the Legislature of the
Virgin Islands).
While the political question doctrine
generally applies only to the federal courts’ review of
questions reserved for the federal political branches and does
not prevent the federal courts’ review of cases regarding state
or territorial political branches, Larsen, 152 F.3d at 246, the
ROA divides the Virgin Islands government into legislative,
executive, and judicial branches and thereby “implicitly
incorporate[s] the principle of separation of powers into the
law of the territory,” Kendall, 572 F.3d at 135 (quoting Smith

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v. Magras, 124 F.3d 457, 465 (3d Cir. 1997)). Because the
ROA incorporates the principles of the separation of powers
that animate the political question doctrine, we have applied
the analysis embodied in the political question doctrine to
requests to review actions of the Virgin Islands Legislature.
See Brown, 973 F.2d at 1121-22; see also Mapp, 882 F.2d at
55 (stating that a court “should be wary” of interfering with
the Virgin Islands Legislature’s conduct of its own affairs);
cf. Larsen, 152 F.3d at 246 (noting that the political question
doctrine technically does not apply to questions regarding the
Pennsylvania Legislature but proceeding to apply political
question analysis to determine whether a court can review
that legislature’s impeachment of a state Supreme Court
justice). Thus, while this matter does not raise a per se
political question, political question case law nonetheless
informs our analysis.
The United States Supreme Court has held that a
nonjusticiable political question exists where there is “a
textually demonstrable constitutional commitment of [an]
issue to a coordinate political department.” Baker v. Carr,
369 U.S. 186, 217 (1962); see also Brown, 973 F.2d at 112122 (applying Baker to determine whether an issue is a
political question reserved for the Virgin Islands Legislature).
As discussed above, the ROA, as the Virgin Islands
Constitution, and specifically § 6(g), contain a “textually
demonstrable constitutional commitment” of power to the
Legislature to determine the qualifications of its members.
This prevents courts from interfering with the Virgin Islands
Legislature’s determination of the qualifications of its
members, including whether they meet the residency
requirement of § 6(b). See Mapp, 882 F.2d at 54 (“[U]nder
the [ROA], the legislature is the ‘sole judge’ of whether [a

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member] met [the Act’s] eligibility requirements.”); see also
Brown, 973 F.2d at 1124 (“Although courts may determine a
legislature’s compliance with external laws, here the external
law itself, § 6(g) of the [ROA], commits the relevant issue to
the discretion of the legislature.”). Thus, under the plain
language of § 6(g), once the 32nd Legislature convened, it
alone had the authority to determine whether Rodriquez
possessed the qualifications to be a member and was thereby
entitled to take the oath and be seated.5
In sum, before the 32nd Legislature convened, the
Board of Elections had the authority to review the
qualifications of prospective members of the Legislature, and
because it is not a part of the Legislature or any other branch
of the Virgin Islands government, issues of separation of
powers do not preclude a court from reviewing the Board of
5

This is not to say that § 6(g) immunizes all of the
Legislature’s exclusion or expulsion decisions from judicial
review, but a high bar must be met for a court to opine on
such issues. See, e.g., Larsen, 152 F.3d at 248 (stating that
the impeachment of a state judge is reserved for the state
legislature but that due process challenges to the
impeachment process may be justiciable under certain
circumstances); Morgan v. United States, 801 F.2d 445, 451
(D.C. Cir. 1986) (concluding that, under the political question
doctrine, the court may not decide the qualifications of
members of Congress but not precluding judicial review of
“all judicial challenges bearing any relationship to legislative
resolution of disputed elections,” such as where there is “a
clear showing of such arbitrary and improvident use of the
power as will constitute a denial of due process of law”
(citation and internal quotation marks omitted)).

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Elections’ decisions concerning a candidate’s qualifications.
18 V.I.C. § 412; Bryan, 61 V.I. at 213-14, 216; see also
Baker, 369 U.S. at 210 (noting that the “nonjusticiability of a
political question is primarily a function of the separation of
powers”); Kendall, 572 F.3d at 135-36 (stating that the
“separation of powers principle prohibits any branch of
government from exercising powers that are reserved for the
other branches, unless such an exercise is expressly provided
or incidental to the powers that a branch necessarily has”
(internal quotation marks omitted)).6 But now that the 32nd
Legislature has convened, only that body can determine the
qualifications of its members and separation of powers
principles require a court to decline weighing in on these
issues. See 48 U.S.C.
§ 1572(g); Bryan, 61 V.I. at 216; see also Mapp, 882 F.2d at
54. We will therefore affirm the order dismissing the Federal
Action. Only the 32nd Legislature may judge whether
Rodriquez satisfies the requirements set forth in § 6(b),
including the residency requirement, and is thereby qualified
to serve as one of its members and whether to administer the
oath and seat Rodriquez.
B

The Virgin Islands Legislature is “not a continuing
body” and is instead re-constituted with every election. See
Bryan, 61 V.I. at 212-13. Thus, the 31st Legislature is
distinct from the 32nd Legislature, so the 31st Legislature
could not determine the qualifications of members of the
32nd Legislature, and the 32nd Legislature could not
determine the qualifications of its members before that body
convened. See id. at 213.
6

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We will dismiss Rodriquez’s appeal of the District
Court’s dismissal of the Removed Action. Under Article III
of the Constitution, a federal court may “exercise . . . judicial
power,” Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir.
2007) (quoting Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d
912, 914 (3d Cir. 1987)), over “only actual, ongoing cases or
controversies,” Khodara Envtl., Inc. ex rel. Eagle Envtl. L.P.
v. Beckman, 237 F.3d 186, 193 (3d Cir. 2001). The case-orcontroversy requirement extends to all phases of federal
judicial proceedings (including appellate review). As one of
the prevailing parties, Rodriquez does not have standing to
appeal the dismissal of a case filed against him because we
have no further meaningful relief to grant him. Cf. Reschini
v. First Fed. Sav. & Loan Ass’n of Ind., 46 F.3d 246, 249 (3d
Cir. 1995). To the extent he is seeking the dissolution of the
preliminary injunction enjoining him from taking the oath of
office, that injunction was dissolved automatically when the
District Court dismissed the Removed Action. After all, “[a]
preliminary injunction cannot survive the dismissal of a
complaint.” Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir.
1994); see also 11A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2947 (3d ed. 2013).
Accordingly, because we can no longer grant effective relief
concerning the parties in the Removed Action, we will
dismiss Rodriquez’s appeal of the Removed Action for lack
of standing.
IV
For the foregoing reasons, we will dismiss Rodriquez’s
appeal of the Removed Action, and we will affirm the District
Court’s order dismissing the Federal Action because it
presents a request for court intervention where only the

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Legislature can act. With this ruling, the 32nd Legislature
should fulfill its statutory obligation to judge Rodriquez’s
qualifications for membership in the Legislature.

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