Anthony Duenas SANTOS, Petitioner, v. The People of the Territory of GUAM, Respondent, 436 F.3d 1051

GOODWIN, Circuit Judge: Anthony Dueñas Santos seeks review of his conviction in the Guam Superior Court on charges of aggravated murder and possession and use of a deadly weapon. His convictions were affirmed by the Guam Supreme Court. This appeal is dismissed for want of jurisdiction. The Guam Superior Court had original jurisdiction pursuant to 7 GUAM CODE ANN. § 3105. The Guam Supreme Court had jurisdiction pursuant to 7 GUAM C ODE ANN. § 3107(b). Santos timely filed his petition for writ of certiorari in this court pursuant to former 48 U.S.C. § 1424-2, and his petition was granted on June 18, 2003.

We calendared the case for oral argument on April 30, 2004. At the close of argument, we ordered submission for decision, and initiated the lengthy process of obtaining the record from Guam. On October 30, 2004, Congress amended 48 U.S.C. § 1424-2 striking the language granting to this court, for a period of time which had not yet expired, “jurisdiction to review by writ of certiorari all final decisions of the highest court of Guam from which a decision could be had.” Act of Oct. 30, 2004, Pub.L. No. 108-378, § 2.

The question now presented is whether the jurisdiction previously granted by § 1424-2, and existing at the time certiorari was granted, the briefs were filed, and the case was argued and submitted, evaporated upon the enactment date of the repeal, or has continued to exist until the pending appeal could be decided. In 1952, the Supreme Court was confronted with a similar question and held that when a jurisdictional statute under which an action had been properly filed was repealed, without any reservation as to pending cases, all such pending cases were to be dismissed. Bruner v.

United States, 343 U.S. 112, 115-117, 72 S.Ct. 581, 96 L.Ed. 786 (1952). That holding was reinforced when cited with approval in a litigation setting that did not involve the jurisdiction of a court to decide a case. Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The court ruled on the effect of a statute upon an action that was pending in court on the date of enactment, but which arose out of events that had transpired before the statute creating a remedy had been enacted. 511 U.S. 244, 114 S.Ct. 1522, 128 L.Ed.2d 229.

The Landgraf case was dealing with a statute silent on the question of retroactivity, and ruled that unless retrospective effect is expressed by Congress, it will not be presumed. Id. at 280, 114 S.Ct. 1483. Because the question before us is the survival of jurisdiction to decide cases after that jurisdiction has been withdrawn, we look to Bruner, rather than to Land-graf, for relevant precedent.

In Bruner, the Supreme Court cited inter alia, Ex parte McCardle, Bruner, 343 U.S. at 116-17, 72 S.Ct. 581 (citing, inter alia, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)), which holds: “Jurisdiction is the power to declare the law, and when it ceases to exist, the only function of the court is that of announcing the fact and dismissing the [case].” Ex parte McCardle, 74 U.S. (7 Wall.) at 514.

Absent another directive, we are bound to apply Bruner’s reasoning that a jurisdiction-withdrawing statute does not “alter[ ] the nature or validity of’ rights or liabilities but “simply reduce[s] the number of tribunals authorized to hear and determine such rights and liabilities.” Bruner, 343 U.S. at 117, 72 S.Ct. 581. In Bruner, the statute in question removed the jurisdiction of federal district courts over certain civil actions brought by employees of the United States, but preserved jurisdiction in the Court of Claims for those actions. Id. at 115, 72 S.Ct. 581.

There is no principled distinction between Bruner’s jurisdiction-withdrawing statute and this one, which removes the jurisdiction of the Ninth Circuit Court of Appeals to hear appeals from Guam courts but preserves jurisdiction over the same cases in the Guam court system and review by certiorari in the United States Supreme Court. We have held that a jurisdiction-withdrawing provision of AEDPA expressing no other effective date barred review of a petition pending before us on the date of enactment. See Duldulao v. INS, 90 F.3d 396, 399 (9th Cir.1996) (applying Landgraf to hold AEDPA

section 440(

a) retroactive because it “affects the power of the court rather than the rights and obligations of the parties”); see also Nakaranurack v. United States, 231 F.3d 568, 571 (9th Cir.2000) (applying Duldulao). Here, Congress has amended the distribution of appellate jurisdiction in the Territory of Guam without expressing an intent as to the effective date of its new statute. We know only that before we could obtain the lengthy record and agree upon a disposition of a certiorari review then pending before our court, Congress had taken away our power to hear the case.

The withdrawal of our power to hear the case carried with it the destruction of our power to decide the case. Bruner, 343 U.S. at 115-117, 72 S.Ct. 581; see also Ex parte McCardle, 74 U.S. (7 Wall.) at 514, 19 L.Ed. 264. The only authority we have found that lends apparent weight to the suggestion that we refuse to follow the Ex parte McCardle line of cases is our Gioda v. Saipan Stevedoring Co., 855 F.2d 625 (9th Cir.1988). Following World War II, the Northern Mariana Islands were placed under United Nations trusteeship with the United States of America the designated trustee.

After lengthy negotiations between traditional leaders of the inhabited islands (Saipan, Tinian, and Rota) and the government of the United States, the trusteeship was phased out and replaced by the Covenant to Establish a Commonwealth of the Northern Mariana Islands (CNMI). Implementing the Covenant, Congress enacted Public Law No. 95-157 (1977), which created the District Court for the Northern Mariana Islands, with both trial and appellate divisions, a custom that the Trust Territories had followed in island courts.

The appellate division was to have such appellate jurisdiction as the Constitution and laws of the Commonwealth should provide. See 48 U.S.C. § 1694(b). In due course, the island legislature enacted statutes conferring concurrent appellate jurisdiction, for a limited time, upon the District Court to hear and decide appeals from the local trial courts as well as from its own trial division.

After a further period of litigation and legislation, Congress enacted legislation terminating the jurisdiction of the appellate division of the District Court to hear appeals from the trial division, permitting the appellate division to continue to decide appeals from the island courts. See Pub.L. No. 98-454 (1985) (codified at 48 U.S.C. § 1694b(a)). The 1985 statute terminating the jurisdiction of the appellate division of the District Court to hear such appeals became effective while the Saipan Stevedoring appeal was under consideration by the appellate division.

That court, following the Supreme Court’s decision in Bruner, concluded that its jurisdiction was terminated. Pursuant to 28 U.S.C. § 1631, the appellate division attempted to transfer the appeal to this court. A motions panel promptly forwarded the appeal to an argument panel, which decided that it had jurisdiction, at least to consider its jurisdiction. That panel then held that it did not have jurisdiction to hear the appeal, and returned the appeal to the District Court.

While our panel cited Bruner, which had been the authority relied upon by the appellate division in concluding that it had no jurisdiction to continue, it turned to the construction of the Transfer Act and declined the transfer. The Gioda opinion makes no reference to Ex Parte McCardle, but in further reference to Bruner, the opinion briefly discusses cases dealing with retroactivity. The panel did mention Bruner in connection with the general rule that jurisdiction over pending appeals ends with the repeal of the statute creating jurisdiction, but, as it was preoccupied with the

interpretation of the § 1631 (the Transfer Act), it concluded that the appellate division retained jurisdiction and remanded the case to the District Court for decision. The statement that the appellate division had continuing jurisdiction was apparently founded on the theory that obiter in a school desegregation case about attorney fees had modified our duty to follow the Supreme Court’s express holdings on jurisdiction. The panel cited Bradley v.

School Board, 416 U.S. 696, 716, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), for the proposition that “a new law will not be applied retroactively if its application will result in a manifest injustice.” Gioda, 855 F.2d at 630. Ignoring the context, that the “new law” the Supreme Court was considering in Bradley had to do with attorney fees and not with jurisdiction, the panel went on to opine that the island court’s appellate division retained jurisdiction. This extension of obiter in Bradley to confer jurisdiction now appears to be a stretch that does not require repetition in the instant case.

Whatever may be said on behalf of “manifest injustice” we find nothing in Gioda to trump the clear language of Bruner, in which the Supreme Court was addressing jurisdiction, and not the retroactivity of statutes dealing with other subjects. In view of the Supreme Court’s clear holdings in Ex parte McCardle and Bruner, both of which are unequivocal and squarely on point, we are without jurisdiction to decide this appeal. The appeal is dismissed.