NOT PRECEDENTIAL
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`____________
`
`No. 07-2886
`____________
`
`GOVERNMENT OF THE VIRGIN ISLANDS;
`BUREAU OF INTERNAL REVENUE
`
` v.
`
`WILLIAM M. LANSDALE;
`MARIANTHI LANSDALE;
`LA ISLA VIRGEN, INC.;
`MARINA PACIFICA OIL COMPANY;
`LONESOME DOVE PETROLEUM COMPANY,
`
` Appellants
`____________
`
`No. 08-1674
`____________
`
`In re: WILLIAM M. LANSDALE;
`MARIANTHI LANSDALE,
`
` Petitioners
`____________
`
`On Appeal from the District Court of the Virgin Islands
`Division of St. Thomas
`(D.C. Nos. 01-cv-00157 and 92-cv-00079)
`District Judge: Honorable Raymond L. Finch
`____________
`
`Argued December 10, 2008
`Before: FISHER, JORDAN and STAPLETON, Circuit Judges.
`
`(Filed: January 28, 2009)
`
`

`
`John J. Gibbons (Argued)
`Kevin C. McNulty
`Gibbons
`One Gateway Center
`Newark, NJ 07102-5310
`Attorneys for Appellants and Petitioners
`
`James L. Hymes, III
`Bart F. Higgins (Argued)
`Law Offices of James L. Hymes, III
`5065 Norre Gade, Suite 3
`P.O. Box 990
`St. Thomas, VI 00804
`Attorneys for Government of the Virgin Islands
`and Bureau of Internal Revenue
`
`Aquannette Chinnery-Montell
`Office of Attorney General of Virgin Islands
`Department of Justice
`34-38 Kronprindsens Gade
`GERS Complex, 2nd Floor
`Charlotte Amalie
`St. Thomas, VI 00802
`Attorney for Bureau of Internal Revenue
`
`Mark D. Hodge
`Hodge & Francois
`1340 Taarneberg
`Charlotte Amalie
`St. Thomas, VI 00802
`
`Richard Vanneck
`9800 Buccaneer Mall, Suite 9
`St. Thomas, VI 00802
`Attorneys for Lonesome Dove Petroleum Company
`
`2
`
`

`
`Maria T. Hodge (Argued)
`Hodge & Francois
`1340 Taarneberg
`Charlotte Amalie
`St. Thomas, VI 00802
`
`Phillip S. Stenger
`Stenger & Stenger
`4095 Embassy Drive, Suite A
`Grand Rapids, MI 49546
`Attorneys for Joanne E. Bozzuto
`
`____________
`
`OPINION OF THE COURT
`____________
`
`FISHER, Circuit Judge.
`
`William Lansdale and Marianthi Lansdale appeal three orders entered by the
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`District Court of the Virgin Islands disposing of motions involving tax receivership and
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`arbitration proceedings. The Lansdales have also filed a petition for a writ of mandamus.
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`The Virgin Islands Bureau of Internal Revenue (“VIBIR”) and the Receiver have filed
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`motions to dismiss the appeal for lack of jurisdiction. For the reasons set forth below, we
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`will dismiss the appeal for lack of jurisdiction and deny the petition for a writ of
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`mandamus.
`
`3
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`

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`I.
`
`We write exclusively for the parties, who are familiar with the factual context and
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`legal history of this case. Therefore, we will set forth only those facts necessary to our
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`analysis.1
`
`A.
`
`In 1991, the VIBIR obtained a tax deficiency judgment in the District Court
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`against La Isla Virgen, Inc., a Lansdale-owned company, in the amount of
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`$21,895,969.00. The District Court subsequently appointed a Receiver on behalf of the
`2
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`Lansdale corporations to locate and secure assets belonging to the corporations. In 1998,
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`the VIBIR filed a complaint against the Lansdales seeking to hold them personally liable
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`for their corporations’ tax liability.
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`Following court-ordered mediation, the VIBIR and the Lansdales executed a final
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`settlement agreement (“FSA”) in November 2002. Pursuant to the FSA, the VIBIR was
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`entitled to a settlement amount of $6.5 million and the VIBIR agreed to “promptly request
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`the Receiver to file a final accounting; request, with [the VIBIR’s] full cooperation and
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`support, that the Court discharge the Receiver; and authorize [the] Receiver to return full
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`The complex factual and legal history of this case is well documented in previous
`1
`rulings by the District Court. See Gov’t of the Virgin Islands v. Lansdale, 172 F. Supp. 2d
`636 (D.V.I. 2001); Gov’t of the Virgin Islands v. Lansdale, Nos. 2001-157, 1992-0079,
`2004 WL 1918753 (D.V.I. Aug. 23, 2004).
`
`La Isla Virgen merged into Marina Pacifica Oil Company in 1988 and Marina
`2
`Pacifica merged into Lonesome Dove Petroleum Company in 1992.
`
`4
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`

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`control of Lonesome Dove to the Lansdales along with all corporate records (financial
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`and otherwise) of Lonesome Dove.” The Lansdales agreed to “immediately thereafter
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`cause Lonesome Dove to use its best efforts to sell all non-liquid assets owned by
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`Lonesome Dove,” and “[a]ll proceeds from the asset liquidation” would then “be paid to
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`[the VIBIR] and [would] not be credited toward” the $6.5 million. The FSA also
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`included a dispute resolution provision, which stated that “[a]ny controversy, claim or
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`dispute” which arose “out of or relate[d] to” the FSA, was to be resolved by arbitration.
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`The District Court appointed Joanne Bozzuto as the successor Receiver and, following
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`the appointment, the Receiver began the process of filing years of Lonesome Dove
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`delinquent tax returns, drafting security agreements, and marshaling corporate oil and gas
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`assets into the receivership.
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`As the receivership investigation progressed, the Lansdales sought arbitration
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`pursuant to the FSA because they perceived that the VIBIR was not complying with the
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`FSA’s provision requiring the VIBIR to promptly request termination of the receivership.
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`The Lansdales raised three issues to the arbitrator: (1) Whether the oil and gas royalties
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`being collected by the Receiver were to be credited against the $6.5 million cash portion
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`of the settlement; (2) whether the VIBIR violated the FSA by failing to move for the
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`termination of the receivership; and (3) what Lonesome Dove’s non-liquid assets were, to
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`which the VIBIR was entitled to the proceeds of sale.
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`5
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`

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`On May 10, 2006, the arbitrator entered an Interim Arbitration Decision and
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`Award resolving the first and second issues raised by the Lansdales, finding that (1) the
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`oil and gas royalties were to be considered liquid assets which were to be credited toward
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`the $6.5 million settlement sum, and (2) the VIBIR was required to request the Receiver
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`to file a final accounting and request the District Court to discharge the Receiver in order
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`to return control of Lonesome Dove to the Lansdales.
`
`B.
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`The Lansdales timely appeal three orders issued by the District Court following the
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`arbitrator’s Interim Award. First, on July 24, 2006, the Lansdales filed a motion in the
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`District Court to confirm the arbitrator’s Interim Award, and on August 3, 2006, the
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`VIBIR filed a motion to vacate it. On May 30, 2007, the District Court denied both
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`motions in a single order (“Arbitration Order”), explaining in a memorandum opinion that
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`because the arbitrator decided only two of the three issues submitted for arbitration, the
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`Interim Award was not a final award to be reviewed for confirmation or vacation.
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`Second, on August 31, 2006, the Receiver filed a motion petitioning the District
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`Court to rule that the Court had exclusive jurisdiction over determining the rightful assets
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`of Lonesome Dove. On May 14, 2007, the District Court denied the Receiver’s motion
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`(“Determination Order”). The District Court explained that “if any issue is nonarbitrable,
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`the arbitrator lacks jurisdiction over it” and the District Court could vacate the award if
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`the arbitrator exceeded his power, but concluded that “it was not the appropriate juncture
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`6
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`

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`to” decide whether it had exclusive jurisdiction over “[t]he determination of what assets
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`are the corporate properties of Lonesome Dove, how and when those assets are to be
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`liquidated, and the distribution proceeds.”
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`Third, on November 15, 2006, the Receiver filed a motion asking the District
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`Court to order William Lansdale to return over $1.6 million to Lonesome Dove. On
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`May 14, 2007, the District Court granted the Receiver’s motion (“Turnover Order”),
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`stating that the Receiver “submitted uncontradicted evidence that William M. Lansdale
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`diverted revenues from oil and gas leases that are the undisputed assets of Lonesome
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`Dove.”
`
`II.
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`We begin by addressing the appellees’ assertion that we lack jurisdiction over
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`these orders. We “exercise de novo review over an argument alleging a lack of appellate
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`jurisdiction.” Reilly v. City of Atlantic City, 532 F.3d 216, 223 (3d Cir. 2008). Under 28
`
`U.S.C. § 1291, we have jurisdiction over “final decisions” of the District Court. Ortiz v.
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`Dodge, 126 F.3d 545, 547 (3d Cir. 1997). To constitute an appealable final decision,
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`§ 1291 “most often requires that a district court issue a decision that completely ends the
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`litigation,” In re Carco Electronics, 536 F.3d 211, 213 (3d Cir. 2008), in order to further
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`the interest of avoiding inefficient piecemeal appeals. Frederico v. Home Depot, 507
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`F.3d 188, 192 (3d Cir. 2007).
`
`7
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`

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`
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`We agree with the appellees that none of the three orders constitute final decisions
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`under § 1291 because this “matter remains open, unfinished [and] inconclusive.” Cohen
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`v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also Aluminum Co. of Am.
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`v. Beazer E., Inc., 124 F.3d 551, 557 (3d Cir. 1997) (stating that a final decision “will
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`fully resolve all claims presented to the district court” and “after the decision has been
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`issued, there will be nothing further for the district court to do”). Specifically, the
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`Arbitration Order refrains from confirming or vacating the Interim Award in anticipation
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`of further arbitration proceedings, the Determination Order declines to rule that certain
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`asset determinations belong solely to the District Court, and the Turnover Order does not
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`conclusively resolve the ongoing asset determinations. See Isidor Paiewonsky Assocs.,
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`Inc. v. Sharp Props., Inc., 998 F.2d 145, 150 (3d Cir. 1993) (explaining that a final
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`decision “disposes of the whole subject” and “gives all the relief that was contemplated”)
`
`(internal quotation marks and citation omitted).
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`Nor do any of the three orders fall within the narrowly-construed collateral order
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`doctrine. See We, Inc. v. City of Philadelphia, 174 F.3d 322, 324 (3d Cir. 1999) (“Under
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`the ‘collateral order’ doctrine, . . . a decision of a district court may be appealable as a
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`‘final decision’ under 28 U.S.C. § 1291 if it (1) ‘conclusively determine[s]’ the disputed
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`question; (2) ‘resolve[s] an important issue completely separate’ from the merits of the
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`action; and (3) is ‘effectively unreviewable’ on appeal from a final judgment.”) (quoting
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`Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978)).
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`8
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`

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`The Lansdales argue alternatively that jurisdiction over the three orders exists
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`independent of § 1291. First, the Lansdales assert that we have jurisdiction to review the
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`District Court’s Arbitration Order under section 16 of the Federal Arbitration Act
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`(“FAA”). We disagree. The FAA provides, inter alia, that a party may appeal an order
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`“confirming or denying confirmation of an award or partial award.” 9 U.S.C.
`
`§ 16(a)(1)(D). Here, the District Court declined to confirm or vacate the Interim Award
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`on the ground that it was not final and therefore not ripe for confirmation or vacation.
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`The District Court reasoned that if it were to confirm the Interim Award – which only
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`resolved two of the three issues submitted to arbitration – and terminate the receivership
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`upon the VIBIR’s motion, the arbitrator might be hindered in resolving the third issue still
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`pending in arbitration, involving the determination of the non-liquid assets belonging to
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`Lonesome Dove. Because the District Court postponed determining the parties’ dispute
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`until all three interrelated issues are resolved in arbitration, the Arbitration Order is not
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`appealable under § 16(a)(1)(D). See, e.g., Middleby Corp. v. Hussman Corp., 962 F.2d
`3
`
`The Lansdales rest their jurisdictional argument on the plain language of
`3
`§ 16(a)(1)(D), but their interpretation of that statutory provision ignores the context
`provided by the rest of § 16. According to § 16(b), which designates certain orders
`regarding arbitration as interlocutory, “an appeal may not be taken from an . . . order . . .
`directing arbitration to proceed.” 9 U.S.C. § 16(b)(2). That was the practical effect of the
`Arbitration Order here: it instructed the parties to complete arbitration before seeking
`review of the award. Because § 16 was intended “to prevent the appellate aspect of the
`litigation process from impeding the expeditious disposition of an arbitration,” David D.
`Siegel, Practice Commentary: Appeals from Arbitrability Determinations, 9 U.S.C.A.
`§ 16, at 352 (West Supp. 2008), permitting an appeal of the Arbitration Order would
`frustrate rather than further the section’s purpose.
`
`9
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`

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`614, 616 (7th Cir. 1992) (finding that under § 16(a)(1)(D) a delay in confirmation “is a far
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`cry from ‘denying’ confirmation” because “the court promises final judgment at the
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`appropriate time”).
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`Next, the Lansdales assert that we may review the District Court’s Determination
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`Order pursuant to 28 U.S.C. § 1292(a)(2) and 9 U.S.C. § 16(a)(1)(A) and (B). We reject
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`both contentions. First, 28 U.S.C. § 1292(a)(2) provides appellate jurisdiction over
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`“[i]nterlocutory orders appointing receivers, or refusing orders to wind up receiverships
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`or to take steps to accomplish the purposes thereof, such as directing sales or other
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`disposals of property.” The Lansdales argue that by denying the Receiver’s motion for
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`the District Court to declare exclusive jurisdiction over the asset determination, the
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`Court’s Determination Order has the effect of refusing to wind up the receivership or to
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`take steps to carry out that purpose. However, § 1292(a)(2) must be “interpreted
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`narrowly” and “permit[s] appeals only from the three discrete categories of receivership
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`orders specified in the statute, namely [1] orders appointing a receiver, [2] orders refusing
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`to wind up a receivership, and [3] orders refusing to take steps to accomplish the purposes
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`of winding up a receivership.” In re Pressman-Gutman Co., 459 F.3d 383, 393 (3d Cir.
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`2006) (internal quotation marks and citation omitted). The Determination Order falls into
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`none of these three discrete categories and thus appellate jurisdiction does not exist under
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`§ 1292(a)(2).
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`10
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`

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`Second, 9 U.S.C. § 16(a)(1)(A) and (B) permit an appeal from an order “refusing a
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`stay of any action under section 3 of this title” or an order “denying a petition under
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`section 4 of this title to order arbitration to proceed.” The Determination Order clearly
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`does not respond to a motion to stay or a motion to compel and thus does not fall under
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`the explicit language of § 16(a)(1)(A) or (B). However, the Lansdales argue that by
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`refusing to rule on the District Court’s jurisdiction over certain asset determinations, the
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`Determination Order has the same effect as an order denying a stay of district court
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`litigation and an order denying arbitration because the Receiver’s continuing role has, “in
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`practical terms,” restricted the arbitration proceedings. We disagree with this
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`characterization. The Determination Order plainly rejected the Receiver’s argument that
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`the District Court should effectively remove certain asset determinations from arbitration
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`by exercising exclusive jurisdiction, and therefore, contrary to the Lansdales’ assertion,
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`this ruling does not result in precluding arbitration of the issues committed to that forum.
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`Accordingly, the Lansdales’ argument that § 16(a)(1)(A) and (B) are implicated by the
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`Determination Order fails.
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`Finally, the Lansdales argue that the District Court’s Turnover Order is
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`immediately appealable under 9 U.S.C. § 16(a)(1) because the Turnover Order, like the
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`Determination Order, is equivalent to an order denying a motion to compel or refusing a
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`stay. Again, we disagree with the Lansdales’ characterization and find no alternative
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`basis for exercising jurisdiction over the Turnover Order. See, e.g., F.T.C. v. Overseas
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`11
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`

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`Unlimited Agency, Inc., 873 F.2d 1233, 1235 (9th Cir. 1989) (finding that an order
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`directing funds to be turned over to a receiver is a non-final order and not appealable
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`pursuant to 28 U.S.C. § 1292(a)); United States v. Beasley, 558 F.2d 1200, 1201 (5th Cir.
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`1977) (finding no jurisdiction over a turnover order requiring funds to be paid to a
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`receiver); United States v. Chelsea Towers, Inc., 404 F.2d 329, 330 (3d Cir. 1968) (“The
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`order requiring the delivery of certain deposits to the receiver is neither final nor within
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`any category of appealable interlocutory orders.”).4
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`Therefore, we lack jurisdiction over the three orders that the Lansdales appeal
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`because the orders are not final under 28 U.S.C. § 1291 and there are no alternative
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`grounds for exercising jurisdiction at this time.
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`III.
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`The Lansdales have also filed a petition for a writ of mandamus, asking that we
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`direct the District Court “to stay or dismiss the pending litigation, discharge the receiver,
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`and finally and completely submit the contested issues to arbitration.”
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`Mandamus relief is “a drastic and extraordinary remedy reserved for really
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`extraordinary causes.” Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004)
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`The Lansdales also assert that the doctrine of pendent appellate jurisdiction
`4
`permits us to review these orders. Because there is no appellate jurisdiction over any of
`the three orders, we reject this argument. See Hoxworth v. Blinder, Robinson & Co., Inc.,
`903 F.2d 186, 209 (3d Cir. 1990) (“[P]endent appellate jurisdiction over an otherwise
`unappealable order is available only to the extent necessary to ensure meaningful review
`of an appealable order.”).
`
`12
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`

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`(internal quotation marks and citation omitted). We have explained that “mandamus is
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`not a mere alternative to an appeal and instead properly is viewed as a safety valve in the
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`final-judgment rule proving a drastic remedy . . . only in extraordinary circumstances in
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`response to an act amounting to a judicial usurpation of power.” In re Pressman-Gutman
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`Co., 459 F.3d at 398 (internal quotation marks and citation omitted). Thus, to qualify for
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`mandamus relief, a petitioner must demonstrate “that there is (1) ‘no other adequate
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`means’ to attain the relief sought, and (2) a right to the writ that is ‘clear and
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`indisputable[]’ and, (3) even if these first two conditions are met, the reviewing court in
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`its discretion must conclude that the writ ‘is appropriate under the circumstances.’” In re
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`Briscoe, 448 F.3d 201, 212 (3d Cir. 2006) (quoting Cheney, 542 U.S. at 380-81).
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`Upon careful review of the Lansdales’ assertions, we find that the petitioners have
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`failed to carry their burden of demonstrating entitlement to such extraordinary relief. The
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`Lansdales have not established they lack alternative adequate means to obtain relief,
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`given the availability of the arbitration process, and moreover, they have failed to
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`demonstrate a clear and indisputable right to the relief they seek. We are unconvinced
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`that issuing the writ is warranted under the circumstances of this case and, accordingly,
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`we will deny the petition for a writ of mandamus. Nevertheless, we are mindful of the
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`extraordinary length of time this matter has been pending and urge the District Court to
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`actively facilitate and encourage a final resolution. A receivership process that becomes
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`interminable is not appropriate.
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`13
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`

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`IV.
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`For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction and
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`deny the petition for a writ of mandamus.
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`14