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Heirs of Norman A. Garvey v. Sion Farm Esso Service Center and Government of Virgin Islands Criminal Victims Compensation Commission

filed: February 1, 1988.

HEIRS OF NORMAN A. GARVEY APPELLANT
v.
SION FARM ESSO SERVICE CENTER AND GOVERNMENT OF THE VIRGIN ISLANDS CRIMINAL VICTIMS COMPENSATION COMMISSION



On Appeal from the District Court of the Virgin Islands (St. Croix).

Gibbons, Chief Judge and Stapleton and Mansmann, Circuit Judges.

Author: Gibbons

GIBBONS, Chief Judge :

The heirs of Norman Garvey appeal from an order of the District Court of the Virgin Islands dismissing their Petition for Review of a decision of the Virgin Islands Criminal Victims Compensation Commission denying their claim for compensation. The district court dismissed the Petition for Review because the decisions of the Commission are not subject to judicial review. We affirm.

Norman Garvey and Julio Quintero were employees of the Sion Farm Esso Service Station. On April 12, 1983 an argument took place in which Garvey attempted to pour gasoline on Quintero, and Quintero stabbed Garvey to death. Quintero pleaded guilty to Voluntary Manslaughter.

The Virgin Islands Criminal Victims Compensation Act, 34 V.I.C. § 151 et seq., establishes a program of public compensation for innocent victims of certain criminal offenses and in death cases, their families. Application for compensation is made to a commission established under the Act. When an application is made, the Executive Secretary of the Commission must hold a fair hearing and prepare a report and recommendation. 34 V.I.C. § 156(b). The Commission may not award compensation "if, supported by substantial evidence it determines that -- (6) the victim and the offender, at the time the injury or death was caused, were engaged in a common unlawful enterprise or activity. . ." 34 V.I.C. § 164(b)(6). Moreover,

in determining the amount of an award, the Commission shall determine whether, because of his conduct, the victim of such crime contributed to the infliction of his injury, and the Commission shall reduce the amount of the award or reject the claim altogether, in accordance with such determination . . .

34 V.I.C. § 164(c). The Commission, after a hearing, determined that because Garvey's conduct contributed to the infliction of his injury, no award would be made. The Garvey heirs made a motion for reconsideration, which the Commission denied.

Following the denial of the motion for reconsideration, the Garvey heirs petitioned the district court for a writ of review. That petition was filed pursuant to 5 V.I.C. § 1421 et seq. and 5 V.I.C. Appendix V R Rule 11. The referenced statute provides, generally, for review of actions of Virgin Islands administrative agencies.*fn1 The referenced rule specifies the procedure for obtaining a writ of review. The district court dismissed the petition on the ground that the Virgin Islands Compensation Act precludes judicial review of Commission decisions.

The Act provides that after the Executive Secretary makes a report "the Commission shall make its determination and issue its order with due dispatch." 34 V.I.C. § 157(a). "Such determination and order," however, "shall be final as provided by section 166 of this chapter." Id. Section 166 provides in relevant part:

(a) Every determination and order of the Commission shall be final, except that an applicant may obtain a reconsideration by the Commission of an order upon filing a written request for reconsideration with the Executive Secretary within one calendar year after the issuance of the order, and upon approval of the request by the Commission.

34 V.I.C. § 166. Section 157(a) and Section 166(a), read together, clearly convey the intention of the Virgin Islands Legislature that there shall be no judicial review of the merits of decisions of the Commission. The only provision in the Criminal Victims Compensation Act even arguably pointing to a different conclusion is that in section 156(b) requiring that rejections of applications be supported "on the basis of evidence received." In context, however, the supported by evidence language refers to the fact that the Commission acts upon the report and recommendation of the Executive Secretary, who must conduct a hearing. The requirement that the Commission must act on the basis of evidence does not suggest that the Legislature did not mean what it said with respect to finality of its actions.

The Garvey heirs rely on cases such as King Christian Enterprises v. Government of the Virgin Islands, 345 F.2d 633 (1965), Virgo Coloration v. Paiewonsky, 251 F. Supp. 279 (D.V.I. 1960), rev'd, 384 F.2d 569 (3d Cir. 1967), cert. denied, 390 U.S. 1041, 88 S. Ct. 1634, 20 L. Ed. 2d 303 (1968), reh'g denied, 392 U.S. 917, 88 S. Ct. 2053, 20 L. Ed. 2d 1379 (1968), and Schuster v. Thraen, 532 F. Supp. 673, 18 Va. 287 (D.V.I. 1982), in which on petitions for writs of review the district court exercised judicial review over the actions of other Virgin Islands administrative agencies. Each agency scheme must, however, be analyzed separately. Even if we assume a general rule in favor of judicial review of agency action, the Legislature may, subject to the limitations of due process, provide for the finality of agency action. It has done so in the Criminal Victims Compensation Act. Since the Act provides for compensation from public funds, and contains adequate procedural means for fair determinations at the agency level, no due process argument for judicial review is suggested.

We emphasize that what the instant petition seeks is a review of the merits of the Commission's decision. Thus we do not pass on distinct issues such as whether the district court could compel the Commission to act on a petition, or to act in accordance with the procedures set out in the governing statute. The Commission did act in accordance ...


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