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# Machine transcript -- ia oralarg gov.uscourts.ca3.22 2675 Speech recognised by large-v3-turbo (faster-whisper/ctranslate2) on 2026-08-21. No speaker labels: the recording is transcribed as continuous speech, so who is speaking is not marked and must not be inferred from the layout. MACHINE-READ, ACCURACY UNMEASURED. No word error rate has been established for this transcript -- nobody has checked it against the audio. Quote from the recording, not from here. Recording: https://archive.org/download/gov.uscourts.ca3.22-2675/gov.uscourts.ca3.22-2675.2023-05-26.mp3 --- everybody this is a consolidate i'm not going to lead off all the numbers uh we'll call the case of apex construction uh the united states virgin islands and it starts with 22-2675 and goes through 22-26-8 so how are you sir good morning how are you doing may it please support joseph on behalf of the appellants apex construction and all like to reserve five minutes for sure could you just make sure you speak in that way because we've had issues with folks in remote places hearing us judge smith are you good can you hear us okay yeah yes judge restrepo i i didn't really feel that i'm that remote i wish you would try to talk judge try to talk judge mckee into a sitting here in the equable climate of altoona I'll try my best for that. Thanks. In this case, your honors, the district court made two errors up to this court's plenary review. The first, it aired in abstaining and dismissing the complaints under the tax company doctrine, and the second, it aired in including that stop does not apply because of GBI. As to the tax company doctrine, this court can dispose of this issue on more limited grounds, in particular, that the appellants only sought monetary review and directly complaint, specifically, not ask for equitable declaratory in order to bring claim under section 19 and three or request damages. Counsel, could I, can I stop you right there at that characterization? Because it it's curious to me as we try to draw the distinction between legal remedies, that is a remedy for damages and equitable. Clearly injunctive relief is not the question here, But it does strike me that there is something very similar in what is being requested as a remedy by the plaintiffs as very akin to restitution or disgorgement. And those are classic equitable remedies. So is this really a suit for damages? uh i would say so because the i believe is 33 section 1692 provides for the statutory right to file up the refund claim wait the six-month statutory period and then bring bring bring a refund suit there's the key question i had exactly the same thought and concerns like my colleague in the uh is it is there any issue that the refund is owned i mean there's no issue that under a statute sector regime that's not been struck down under the government coverage clause and they would therefore tell us a refund that's not made it no but that's not a debate but to put a little final point on a judgment key the it wasn't the statutory scheme that was struck down it was it was not a facial recall it was not a facial attack it was an as-applied attack and so therefore the legislature didn't have to amend the statute all that had happened was the GI had to implement it in accordance with the Council against the usual reasons of funding. But that's still, in terms of where I was going, and Judge, at this point, it does seem like what you're asking for is more in the nature of a disgorgement or a return of funds that you have expended, not necessarily a damage fund. I would disagree, Judge McKee, because under that logic, every tax refund that's provided for in the tax refund provision, whether it be under local law, whether it be on the internal revenue code, could be characterized as such. What's wrong with that? Yeah, that may well be the case. Do you have any authority that actually characterizes what the plaintiffs here are seeking as damages using that term? Okay, I'm going to have to, and I'll get to that by saying this. Looking at the Supreme Court's decision in Quackenbush, and this quote here, under our precedents, federal courts have the power to dismiss or remand cases based on abstention principles only where the relief sought is equitable or otherwise discretionary. Because this was a damaged action, we conclude that the district court's remand order was an awarded application doctrine and then in subsequent in the march of this year in marriage how does that how excuse me but how does that answer the question i mean if you're trying to put the rabbit in the hat i mean we're trying to get to what's equitable uh and what is legal in in the way of remedies and more specifically whether or not what is sought here is damages and to the extent that uh that distinction uh matters and it does seem to matter but it also doesn't seem to clearly and cleanly resolve every controversy like this how has your response uh helped me at all in trying to understand why what you seek is damages and i called it up with citations of this first decision in march of this year merits b richards that's 62 fed forth 764 and in that case there was a section 1983 claim against the penn department of transportation officials in their individual capacities seeking damages and in that case this court concluded after reviewing burford and including that it's stating again under Burford that it does not allow federal court to dismiss a claim for damages citing Quackenbush and then it goes on to say here and when federal plaintiffs praise for damages the equitable discretion upon which abstention arrests does not permit dismissal and it goes on to conclude because merits section 1983 claims against Penn DOT officials in their individual capacities seek damages, they cannot be dismissed on abstention grounds. I was thinking, Your Honor, if it is impermissible to dismiss a Section 1983 case on abstention grounds against individuals, then logic bears out that a refund action, which is provided for under local level law, is an action of law. Respectfully, I don't think that goes at all to the specific question I've asked and that Judge McKee has also focused on, as to what are damages and whether or not what is sought here is in the nature of damages or restitution. uh so uh let me ask you specifically though about the case you've just cited what was it that these dot employees were seeking in the way of damages what kind of recompense or damages were they seeking in that 1983 action actually it's property owner brought a section 19-3 action against the the PennDOT seeking declaratory and injunctive relief and alleged to the PennDOT's acquisition of easements in a combination action violated the federal constitutional and Pennsylvania law. So these- So it's a 1983 claim. That's what I have to do. That's just challenging the constitutionality of bringing a federal challenge to a state regulation. That's not on the table. But the point being is if you cannot dismiss out a section action of law under section 1983 because it asks for damages i submit that you cannot dismiss out a virgin islands refund suit under virgin islands statutory local law that provides for a refund and because that is also damages i would submit that when you look at fair assessment that fair assessment case was very clear in limiting section 1983 damages to certain circumstances but this first decision in merit states that you can get section 93 damages and it's impermissible or improper to dismiss them out in certain circumstances so it seems to me that if you can get damages under section 93 in certain circumstances you should be able to get damages under a tax refund statute which is a statute that has waived governmental sovereign immunity Required an exhaustion requirement of the filing claim for a refund and then wait in six months to follow suit You can get relief What is the substance of that leave is it leaving the road damages or is it Disforgery or something like restitution, which is more Well, your honor, how about this for a preconception looking at it if If you look at the judgment, the judgment of tax refund case, is that the judgment is entered in favor of the plaintiff against the defendant government agency in the amount of tax. What it is not, it is not an order directing, providing equity relief, saying that the official, the director of the BIR, the head of the treasury, the head of the IRS, must pay the plaintiff tax. And as a result, it's not a judgment directing a government official to do or not do something. It's just a prototypical judgment. Plaintiff gets asked, and then in theory, plaintiff has to take a judgment and proceed to collect on it. And so in that sense, it's like any other action in the law. It is not an equitable action. It is not asking for an equitable or declaratory. Let me ask another and admittedly much broader question, counsel. because I think I've failed to get to the root of what my concern is here in the last few questions I've asked. You're familiar with the Bluebirds Castle case that this court decided back in 2003, I think it was. You cited it once, though not for what I'm about to raise, but I'm interested in hearing what you have to say in response to a statement by this court. And it was a statement. It was not a holding. I want to say that at the outset. In that case, the government of the VI had contended that the plaintiff's action was nothing more than a routine challenge of the alleged excessiveness of property tax assessment. And accordingly, what they contended was that it is a purely local tax question subject only to territorial court jurisdiction. That's how our court characterized the claim. And then in the next paragraph, what our court said is where this is the case, in other words, the contention of a purely local tax question, where this is the case, jurisdiction in the district court is improper. What do you make of that? um I don't know if that that statement is correct and I don't know that I just don't know how I can reconcile that with this course is like with the Supreme Court's decision in Quackenbush with this first decision merits and it's my my my recollection of bluebirds was it was a challenge to the the assessment method it was at a chat it was a challenge to the assessment method i think which is why i indicated the case is different from this i believe so but i believe it was a combination of the actual statutory scheme was a federal one that allowed that had an implication on local level You're correct. And that's why I indicated this is not a holding. This is language from the case, but it still, I think, is language relevant to our discussion. Yes, there was considerable discussion in the Bluebeard's Castle case regarding the interaction of the U.S. government and the territorial government and the federalism concerns and the extent to which federalism actually applied in the territory. You're quite correct in that distinction. But nevertheless, these are words we used, and I think we have to take them at least into account and try to square them with what you're asking. I don't have a problem with that as a conceptual level of judgment, but at the same token, you have to square them with the words that I've repeated in this court's recent decision in merit. And I would submit that what I just quoted to you in merit, that was an actual holding as compared to, I think, when you characterize Judge Smith as a comment. And so to the extent that there is any tension between those two cases, I would submit that merit, which was just issued to Martha this year, would control versus an office. To the extent the language that I cited to you is relevant, if it is, to the extent. I assume that you would agree that what we have here in the excise tax is a purely local tax question. Would you agree with that? I would agree that the tax regime itself is under local law. It does not implicate a federal law as to what happened in Blueberry. That I would agree with. Obviously, the improper application of a violated the dormant commerce clause with which that's court has already acknowledged and recode to can you read the district court's conclusion that assuming tax comedy applies that there is a plain adequate complete remedy available in the living courts absolutely not why not well first i would submit that the entire point of the evidentiary hearing we have for judge miller where we put in all that record evidence and in particular do you want to uh hold this court's attention to documentaries 18 into 15-1 where i moved this court to independently take judicial notice both of the vi legislatures hearing that resulted in act 8468 and in the the reports from the administrative office of u.s courts that details the case count of the district court of virgin islands i also moved at the trial level which judge miller granted to take judicial notice of the ix peer report reports that detail the case count and i believe for the following reasons we we've got um an increase in you've got an increase in case count at the local level to the tune of 385 per year but you know how do we call the line how do we determine what number falls on the company local side of the line and what number of backlog falls on the other side of the line. I don't believe that you have to make a decision just on a number of bases alone. I would submit that when you take a look at the number of bases, you take a look at the testimony from the witnesses that there's no guarantee of repayment, that the reserve fund under three Persian Islands Code section 179 is not funded that the guarantee of the money is coming from the same place so if the district court ordered repayment or the vi court's ordered repayment the money's still coming from the same fund right so well it's actually not coming from a fund it's going to work it's going to however i believe that this court's decision in in garrett which i believe is from 1978 from the 70s stated that you know for purposes of whether something is plain adequate and complete it is not plain if there's not a guarantee or of certainty of recall you're you're not suggesting that there's any kind of institutional breakdown within the territorial courts of the virgin islands are you isn't your position nothing more than a comparative analysis of the case inventories inventories and a very, very rough comparison, it seems to me, of the case inventories between the District of the Virgin Islands and the territorial courts. I would say no, Your Honor, and I would quote to you the statements of the Virgin Islands senators when they made legislative findings as to why they decided to enact Act 8468 to give mandatory trial preference because cases are taking literally decades to resolve. Federal courts are subject to congressionally mandated periods of time during which they must dispose of certain types of cases. First of all, the Speedy Trial Act is the most obvious of them, but we have time limits even within the class action area. So I'm not sure how far that gets you. In fact, it doesn't, by my estimation and experience as a judge in a state court system, get you very far. If you were suggesting an institutional failure here, an institutional breakdown, that would seem to be a different matter. But I don't know, without that, what are the rules when you get into comparative analyses of case inventories, the times for disposition, the types of cases are also highly relevant for comparative purposes. Would you agree with that latter statement? Yes, I'm not going to be able to say that it all goes into proverbial soup. I'm not going to be able to say that there's one particular criteria that's going to be outcome determinative. It's going to be a bunch of criteria when you look at it holistically. And I submit that the legislature actually looked at it holistically and made numerous, and I would submit damning, legislative findings as to how poorly the V.I. Superior Court is functioning. And that's in addition to, and I would submit, Your Honors, and I cited that the district court in Great Bay came to the same conclusion that there was no, the Superior Court didn't provide a plain, adequate, and complete remedy back in 2018, that the factual basis as evidence for the evidence during for Judge Miller is the same, if not worse. And that's consistent with a bunch of cases, including the first service decision in Walmart, Puerto Rico, which found that the Puerto Ricans state courts didn't provide that remedy, and as a result, comedy was not. I understand why you can't get relief from the Judgment Fund because the Judgment Fund is not there to pay. Jackson's got to get an active list of the legislation. There's testimony that to the witnesses and Ms. Fields' recollection, the VA has never failed to enact legislation to give a refund. It seems to be clear, and I'm not sure if they agree to it or not, but money could be moved upon an active legislature. could be moved out of the judgment fund to pay to a different fund, or create a fund to establish the refund. What I'm trying to get at is, if it's clear that you own the refund, and I'll ask you to your colleague a question, I'm not sure why the simplest way to get it isn't to pursue the lower revenue of getting the refund or trying to get the legislation to have the legislature approving the funds to pay your refund. Is that the judgment going to get the money out of the judgment fund, is that it? Well, one, assuming that the money's going to come out of the judgment fund, I do need a judgment, right? And then assuming that I need special- So I'm saying, why need money out of the judgment fund? Why not see an act of the legislature to move money into a fund which was allowed payment of a tax fee fund? Could I do that? I guess in theory, but that presupposes that I have a judgment to go to the legislature and be like, No, you don't need a judgment to get it. You could just get a refund request that is approved. I don't know, but if you're probably going to refund, it seems to me everybody who gets a refund doesn't go to the judgment fund. They can't go to the judgment fund. What you would do would be to get the legislature, in this case, anyhow, as I understand it, to enact legislation to appropriate funds to pay that refund. And according to the record, that's never, there's no good sign like that has not happening in the recent past um i don't know i don't think the record bears it out but i i would submit this judgment key i i if you're asking in the abstract right for problem with the bi legislature and asking for money no of course i would do that but but but that doesn't mean that i don't still get my judgment and that i can do something with my judgment i'm very hesitant to think that I'm gonna be able to go to the VI legislature and ask for money to pay for a judgment that I don't yet have. Well you wouldn't do it, the VIR would do it. Fine, but I've got no control. I can't make a government official prioritize my request for a refund when the evidence is that the GVI prioritizes other things in particular, allotments in government payroll. And so I understand that there's going to be an order of priority, certain things have to be done. But I can't force anyone in the GBI to do what you would submit. And as a result, I don't think that it's appropriate for me and my client to be left at the whim of pleading and asking government officials, come on, please, would you go to the legislature and try to get some money, which is actually the very issue the First Circuit found to be problematic in Walmart or Puerto Rico, that it would literally take decades, even using the Puerto Rican Judgment Fund for Puerto Rico, the Walmart or Puerto Rico. It is a matter of several months, but I'm not going to have that case here. Well, here's the thing to judge. Between these consolidated cases and the other case that brought the issue of the tonnage, which is not part of this deal, that is still pending from this court, the total amount is in excess of three million and that's before statutory interest if it comes out of the judgment fund which is the maximum amount of that fund has been three hundred fifty thousand dollars per year we're looking at in excess of 10 years for these excise taxes on just these cases the consolidate cases below and that's not counting all the other excise tax cases that were submitted claims for refund that are pending that i don't represent those taxpayers and i don't have insight of knowledge to how many other ones are there but i i'm going to expect that after this court's decision in brief code two i'm not the only attorney that advised my client to file a refund claim and ask for the money back so i fully expect that there's a lot more money out there that's due to taxpayers um but um the one thing i would if i could have a moment to address this estoppel i would submit your honor is that estoppel in this case is outcome dispositive Reefco. Where in Reefco did we mention comedy, tax comedy? This court did not, because the GDI did not raise it in its opening brief. But it did raise comedy before the District Court of the Virgin Islands, and Judge Gomez did not, the credit did not fine for comedy. Consequently, the issue was actually raised in Reefco. Yeah, but it wasn't decided how do you get issue preclusion out of that. If it was never, if it was raised but not decided, how do you get issue preclusion or collateral stop all of that? Well, I think, my understanding of rest unit housing issue preclusion is it precludes not only the issues that were raised and decided, but could have been raised, but were not decided. Were they the same parties? Was that, were they the same parties? Enrico, Enrico. Yes. Across the board. It's not my client. It was just a brief covert versus a GBI. Those are the parties in Enrico. But as to why Estoppel should be applied against the GBI, Mendoza, I submit a Supreme Court case, and the issues and the factors that animated the Supreme Court's decision in Mendoza simply do not apply to state and territorial governments. You know, Mendoza talked about federal government being the largest litigating federal courts, about the Solicitor General generating circumference which is an express provision under Rule 10, the Supreme Court rules for cert jurisdiction. Those decisions aren't present here because the GDI litigates before one federal trial court and is appealable to one court, this court, which is why both the Alaska Supreme Court Pennsylvania Supreme Court determined that Mendoza does not apply to state governments and I would submit that if this court concludes and it should not that that Estoppel does not apply to the GBI you're gonna have a very interesting situation where the Pennsylvania's litigants will be subject to will not be simply subject to Estoppel at the state level and incentivize to have Pennsylvania provide or litigate all its cases at the federal level because it would not be subject to estoppel if this court so concludes. And I would submit that that just doubles down as to why estoppel should not, and Mendoza, should not be applied against the DUI. So with that, I'll see you on the phone. Let's take a five-minute recess before we hear from Mr. Francis. Please rise. Yes, the court stands in recess. Please rise. Good morning, Your Honor. Good morning, Mr. Francisco. Why don't we really start? Thank you, Your Honor. May it please the court. Your Honors, the government of the Virgin Islands, excuse me, Assistant Attorney General Michael Francisco representing Appellee, United States Virgin Islands. Your Honors, the government of the Virgin Islands would stand on its brief as to the correct decisions of the district court regarding tax comedy and the application of non-mutual offensive collaborative stop. I've never heard that term before. It is a mouthful, Your Honor, yes, sir. I would just, I'd like to direct our conversation to the points the court just made. First, regarding the restitutionary nature of a refund, I think that if the court looks to chauffeurs, teamsters, and helpers, 494-US-558, inside 570 from 1990, the U.S. Supreme Court considered whether uh whether damages would equate to or could equate to a restitution or a disgorgement equitable remedy and they found that when they're when it is restitutionary in nature i think we all would agree that a refund is a restitution um and it is incidental to or intertwined with injunctive relief now here i'm not counseled i'm not sure we all agreed to that i I persisted in that questioning, but I'm not sure that there was unanimity throughout the courtroom on that. But maybe we can try. Well, Your Honor, I would defy the court to find that a refund post-payment does not bring restitution to the person who alleges an overpayment. What is this like again? The site is 494-US-558. Is this restitution damage? Is the money an issue? did the GBI agree that these folks were entitled to this money? No, Your Honor, we don't. And I think it's incumbent upon the plaintiffs to show two main factors that really haven't been addressed yet and would need to be addressed on the mayors. They weren't brought to the court's attention in RICO, but they are black-letter law. You have JDS Realty, which required the court to, or excuse me, be a litigant to show that they did not pass the burden of the tax onto their consumers. We also have, excuse me, there's JDS Realty and, I'm sorry, but JDS Realty, but there's also a discriminatory impact. You have to show that one of your competitors, a local competitor, was advantaged or received some preferential treatment by virtue of this discriminatory law. The law is spatially neutral. That was already dealt with previously, and the legislature repaired or cured the statute so that it would be non-discriminatory. We're dealing with an as-applied challenge, a factual challenge, which requires the appellant to show, with facts on the record, that those two considerations are met, and also just that they paid the tax. We don't necessarily dispute that they paid the tax. I don't think the record has been fully developed to show that, but they had not shown those two prerequisites. Let's assume we sent this back to the territorial courts. What we do in that process and how long it would take to get a decision out of that territorial court. I know they're just ballpark numbers, but... Your Honor, it would be very difficult for me standing here to tell you how long it would take for the spirit court to adjudicate these claims. We're talking months, years, or decades, you're probably... Certainly years. Within years. I can't see this lasting more than decades. There is, to an appellant's point, a case that does provide, you know, certainly persuasive, if not controlling, authority as to the constitutionality generally of how the tax is being applied. But that doesn't get appellants where they need to go. They also have to show discriminatory impact and that they didn't pass the tax on. Because if there's no injury, as the Supreme Court held in JDS, you don't have a claim or, you know, any relief owed to you. So I would just reiterate, this is restitution, a refund, and although chauffeurs dealt with injunctive relief, or damages incidental to injunctive relief, here, appellants require a declaration from the court that the law was unconstitutionally applied to them. So they need a declaratory judgment in order to obtain the money damages that we would put to the court that the declaratory relief is akin to the injunctive relief sought in chauffeurs. Counsel, let me just try to get to a conclusion on what you have just stated, and that goes to the constitutionality question. And I'm assuming, but I don't want to assume too much, that you do not or that you no longer dispute whether the constitutionality of the excise tax has been adjudicated. I'm referring, of course, to Rivko, too, which was a not-precedential opinion. Well, Your Honor, I submit that the court in Reefco went beyond where, you know, the litigants before the court and found broadly, seemingly broadly, that any person who is charged excise tax over that period must have been charged unconstitutionally. But that is not that would not accord with JDS Realty, nor would it be in line with with. I'm not sure that you've answered my question, or at least I've not been able to determine that you've clearly answered the question, because doesn't it matter? Doesn't it make a big difference as to whether or not we're doing nothing more, we, in having to decide this appeal and ultimately whatever court it is, whether we have only before us what you have suggested is merely a question of relief, of granting restitution or of granting disgorgement, whether or not there may be some unresolved constitutional issue here? Well, Your Honor, we would submit that the Virgin Islands and Superior Courts are more than capable of determining the constitutionality of the application of Section 42 to these litigants. A federal constitutional issue? I'm sorry, Your Honor? A federal constitutional issue? It certainly is a constitutional issue, but I would submit that the Virgin Islands courts are more attuned with both manufacturing on the island and the potential reliefs that could be granted in this case. The Virgin Islands courts are equipped to provide a complete and adequate remedy in this case. All right. And remedy assumes that we have gotten past the question generally of liability, or in this case of constitutionality, and there is nothing more to do than to simply afford the remedy, whatever that is, right? We disagree, Your Honor. We think that these claims... Don't you complicate the issue for yourself that way? We don't believe so, because we have faith in our courts to competently adjudicate constitutional claims. Because you said something that's really resonating that I hadn't thought before. Let's assume there is no issue that this applies to the government Congress law with the way the tax has been enforced against these players. You're saying that the fact that the tax may be unconstitutional as applied and that they paid the tax is not necessarily entitled to a refund, they also have to show that they did not pass the burden of that tax on to their customers in order to get a refund. That's what you're saying. Yes, Your Honor. As cited in our brief, JDS Realty Co. decided that. This went all the way up to the Supreme Court. The Supreme Court told the Third Circuit to remand with instructions to dismiss the case altogether because as had been found in the District Court, there was no injury and therefore no relief was out. I don't know what the judgment would look like, but a judgment saying that the tax was unconstitutional as applied to them, you're saying, wouldn't get them anywhere because they then have to go show back to State Court, Territory Court, to show the second court of that entitlement to a refund, and that is that they didn't pass the tax on. Well, Your Honors, we believe that the Virgin Islands courts are highly capable of deciding that issue. You're speaking a fight, but I'm not trying to start one. I didn't ask you about that. I don't want to make sure I understand what you're saying. You're saying if they got a judgment, that that would still be right, but they go back to the state court and show that they did not pass the tax on to their representatives. Yes, Your Honor. If they failed to show that before the district court and the district court did not require that, that would be an error. It's incumbent upon them to show that this law was unconstitutionally applied to them. And we are not suggesting that that is an impossibility. If they can show that there was discriminatory impact, that is, a local competitor or manufacturer of their goods was advantaged, was required by US Supreme Court precedent, then that, as well as that they bore the tax, they didn't pass that on their consumers, and that they did in fact pay the excise tax, then that would show that they were unconstitutionally taxed they would be owed either a refund or more often a credit and in refco i would just point out that those plaintiffs were afforded a a refund too sweet and the law the regulations were passed to allow for enforcement of the excise tax against locals and and the injunction that the district court put in place was very quickly uh uh relieved the usbi was relieved of that i assume is but but it might be as fast as your colleague. But it's pretty close to the second part of that just that I want to focus on. That is the showing of damages. Damages here not to pay in the tax, but the damages by entitlement to the refund, meaning that second hurdle, that they actually were the burden of the tax and they didn't pass it on. That your submitting should be shown in territorial court, but why couldn't that work? Same showing to me, not saying it would be proper to do so, that that same storm could be made by remand to the district court, and then you can't be back where we're starting to go. Well, Your Honor, the district court does not have the ability to remand such case to the B.I. Superior Court, and that was a key concern in Levin. The Supreme Court noted that it had the ability to remand such questions back to state court, but the federal court lacked that remedial competence. Therefore, in tax cases in particular, comedy is appropriate. And I would also submit that Quackenbush is completely inapplicable here, as this court's precedent has already held. In Coles v. Street, 2002, Judge Ross said that case dealt with common law damages with litigants in federal court under diversity jurisdiction. In Coles, you had statutory damages in court under federal question jurisdiction, and it was inapplicable. And I would also submit that the case that appellant brought up merits. If the court takes a look at that, they'll find that, one, Merritt's dealt with Burford's abstention. It was an eminent domain case, not a tax case. That makes a world of difference. Secondly, in Merritt's, which was only recently decided, they were seeking federal 1983 damages. Here we have claims brought up to local, pursuant to local statutory law, which affords the ability, the court the ability to provide either a refund or a credit. Let me go back to something you said earlier. You said that federal courts can't remand these sorts of matters back to the territorial courts. Is that correct? Yes, Your Honor. So what you're asking for is that the case be dismissed? Exactly, Your Honor. We believe that the district court got this right. The Virgin Islands Supreme Court or Superior Court has, and the Virgin Islands government has a vested interest in seeing that their statutory tax scheme is cohesive and that they adjudicate these claims. That's why they passed the laws, allowing for litigants to bring these claims to the Superior Court. How many other cases out there would be impacted by a decision in this case? Your Honor, to my knowledge, this is the only case in which we have litigants such as these bring challenges to the constitutionality of their excise tax prior to the Reefco decision. That's not to say that there may not be others out there, but I'm unfamiliar with the Superior Court's docket to be able to say whether anyone has brought these claims properly before that court. But we would also just note that Judge Smith and McKee, you both in Regal v. Elliott, citation ADFED at APPS 737, dismissed the claim for 1983 damages in a tax case where there was an adequate state remedy based on fair assessment. And that case has been relied on by district courts for essentially the exact same proposition we're arguing here, which is we have a tax case local courts should deal with this when they're adequately equipped if the court reads our supplemental appendix i can give you the citation it's 064 to 073 with citations to the hearing we show that we provide our courts provide that remedy and and there is more than one potential remedy here so the fact that that is a key concern and It was in ZNR-Cab, and I think that the district court did an excellent job of reviewing not only the rationale for applying tax comedy generally to the USBI, but more importantly, when you have a case such as this where all four of the leaven factors favor abstention, it should be applied. And I would just point out that the concurrence in that would have also helped. You know, the concurrence said that Levin, you know, that the majority made Levin into a multi-factor test and took issue with that. And the concurrence was mainly based on the fact that that case involved fees, not taxes. But nevertheless, under the concurrence's formulation, it still would have dismissed a case such as this. Judge Smith? I have nothing further. Thank you. Thank you, Mr. President. Thank you, Your Honors. Your Honors, Council for the Government was unable to state how long it would take. and all i can say is i can give you my personal experience i've got cases a case from 2014 nowhere near close to getting tried let alone disposed i have another case for 2016 the cases that i have before the superior court civil cases take literally decades to resolve and i mean decades like in excess of 10 years i also would turn to this court's attention this is a matter of public record to this court's docket 23-1047 i brought a 2254 before the district court of virgin islands that is now up on appeal because we're talking about eight years to get a habeas case resolved with no end in sight on a habeas case habeas cases are supposed to be taking precedence i don't you don't have to believe me about how long case, you can look to the statements of the Birch Island's senators and the legislative senators. There are specific findings on how long it takes for cases to be resolved. I submit is both candid, but at the same time is a little shocking, but it is the reality on the ground. There's a question that I wanted, a problem, thank you, your colleague service. Do you agree that in order to actually show your entitlement to the department you have to make sense to me you have to show that you went back there which i mean that you didn't pass the tax on it to customers that that's a showing that's been made before you're legally entitled to what you bought i'm not entirely sure that i would agree with that but it goes to any particular taxpayer and the reason that i say i'm sorry because i didn't do that it goes to any particular taxpayer the And the reason I say that is this, if we're talking basic market economics, if the price for a widget is $10, and if you're importing the widgets and you have to pay excise tax when someone else doesn't have to pay excise tax, the market sets the price. So you're not gonna separately state your excise tax and pass it on to your customer. You don't detail your invoice in such a way. You don't separately state it out there. It gives your customer or your client one bill, and then as a result of your income, your revenue, you run it through your P&L, and you end up with your net profit or your net loss. So I don't think it's a problem of truth, really, not a problem of substance. And if he's correct about our pooling in JBS Realty, it seemed to me that it might be difficult for you to make the showing, unless you have to make the showing difficult less. And it may be the difference in price before and after. Okay, I mean, I don't have a problem, but the one thing I can say is that issue was not, I don't believe it was raised below. It definitely was not dealt with below. So I would submit it's at this point a bit of a hypothetical question that can be dealt with if appropriate on remand. um but i believe that the majority of brother counsel's argument bears out that what the gvi wants which is they don't want to be bound by reef code 2 and they want a chance to relitigate reef code on you which is exactly why estoppel should be appropriate here because it is the same underlying facts as to what what happened and but we're going to have a brief code you know 2.0 we're going to have a proverbial brief code groundhog statement for the trial court i submit that that's entirely the point of estoppel so then you don't have the same case based on the same underlying facts presented before a trial court the only difference is from my lines it's a different taxpayer and otherwise i guess at certain levels like you you know, what are we doing with this? Is this what the kind of- For the purposes of issue preclusion, the fact that it's a different tax period, it's not such a minor point, it's a major point. For issue preclusion, but not for estoppel. And that's why the estoppel goes back to Mendoza, whether Mendoza applies here, that's what's important because as GBI has candidly admitted, they don't want to be found by Reef Co. 2. They think they're untethered by Reef Co. 2 because Reef Code II was non-presidential, and they wanted a second bite of the apple. And that's what Estoppel is intended to present. I believe the case on the Supreme Court is clear that the purpose of Estoppel is to prevent the perception of a gaming table. But if Reef Code II is non-presidential, isn't it also true that nobody's bound by Reef Code II except the parties in that case? Yes, because it's non-presidential. Yes, and that's by virtue of this court's local rules, it's non-presidential. Anyone can cite it as such, but the district court is not bound by it per se. That is different from saying that a party to brief code is not bound by it, which is where estoppel comes to bear. And finally, I'll end on, I don't believe that a refund is the nature of restitution. I've been doing tax litigation for a long time. I've never seen anything where a statutory scheme provides for a cause of action for a refund suit waives sovereign immunity, that the judgment that the taxpayer gets as a result of taking advantage of that statutory scheme results in an order of restitution, discouragement, that it's equitable and the like, that it's strictly a legal remedy, a legal cause of action that has certain strictures to it, including an exhaustion requirement. So I don't believe that a tax refund judgment is in any way, shape, or form restitutionary at role, discord in nature. It's a judgment at law, the law being the statutory scheme that the Virgin Islands government implemented. So with that being said, thank you for your time. I ask the court to reverse and amend and have a court find that both companies does not apply and that estoppel does apply to the GBI. Thank you. I'd like to thank Council for their briefs, 28 J letters, their appendices, their arguments. It's an interesting case, a difficult case. So let me consult with the Treasurer. I'm also going to ask the transcript of this, are you going to be prepared and are super at the cost? And we should talk to our clerk of court who's with us today in terms of the logistics there. Thank you very much. Thank you.