and i would call the st case our unit the matter of government of government of the employees and retirement system of the virgin islands versus the government of the virgin islands and i would say before we begin the clock which we will know who are as historically this court traditionally this court has done in better times  the need to do so is even greater now that we are forced to use various forms of electronic communication which sometimes works and sometimes does not this i will admit is my st occasion since the pandemic began in march to have participated myself far and not having taken the bench while my previous occasions argument since then have involved at least one other member of the panel seated with me i've been able i think to conduct an oral argument or to preside over an oil argument in a relatively efficient way this is as i say a st for me with all three of us located in separate places but i'm sure we'll be able to go forward and  of for all three members of the powell as well as counsel an opportunity for meaningful q and a so with that said and i would look to  mr shirker let me interrupt you get this point in and this is really for your benefit so that the time you have this is bent most meaningful late on the issues presented be assured that the members of the panel  briefing and beyond that some mill year with the history of this matter which spans just short of four decades and rather than have you  recount that for decades which might eat all too much into your allotted time but why don't we go into at the outset the issues actually presented in in the brief if we're familiar of course with the consent decree that was entered in this matter the original complaint having been filed a number of years before that it's rather sparse complaint just took a look at it recent days again but as i understand your position the government's position that you are contending that what is requested has been stopped by the retired ironman system which i'll refer to by its acronym as girs even though that sounds more like something of an exclamation than  why should that read down to the bennett who to the detriment rather of the system and its various pensioners it's numers pensioners be it seems to me that what you're arguing is that well that was not willful conduct on our part and my response to that is so what what does will from this or a lack of willfulness have to do with whether or not a what we have here just requires us to make i weakly payments to disperse those bi weekly payments to the system with a specific period updates these we did so and these systemic issues which were only discovered in two thousand his own counsel told the court at one of the last hearings that four million dollars had been set aside for these prior period employer payments we are making payments into the g r s for the purpose of compensating g r s for the missing said we would like to have these and lump sum so we don't have to come to you each time we need a payment he agreed to do that and we have done that and we are doing that in our sense or have completely ignored those payments to g r s refer the court to pay for all fifty two of the appendix and the report by our assumed wish list and i can read them approximately ten reasons for how these things came about people who were not put into the system well they should have the potential sick i get that there are reasons but it doesn't fall in the scope of a bi weekly contributions those are does not and that was the testimony of the auditor to the to the district court we made to my weekly contributions as as people were paid by weekly basis i also so so you're arguing that there was clear error here in the district court's findings with respect to the accuracy of the experts findings and report paid ninety plus percent for one hundred and ten year period of time in ninety five plus percent for the nd period of time and then reduced that to in two million dollars but that's we submit that's a sterile calculation it doesn't take into account the real world not before the court that we be perfectly clear we are not before the court saying that we don't have an obligation to make those payments we have never said so we've never said so to the district court what we've said is we are making those payments and this eighteen million dollars figure is totally peace side the point isn't st of all those individual pensioners are not parties to this proceeding and beneficiaries of the system which is actually the party and which has a responsibility to all pressures and as i understand the record in the projections we're talking about a system that within a couple of years may go belly up would seem to be looking forward right now  doctor the new computer system and found these missing money she interested in sending reports to the legislature on an annual basis saying the way you need to fund this system to make it whole is to increase  contempt of the ninety four consensus or i don't understand that that's not the question here but you chose to virt the individual pensioners not having been short changed in any way and i felt it necessary to remind you that they are not really the parties here and that it is not their individual interests that is the focus of this litigation judge made it i want to make sure you have an opportunity to ask questions here obligation and she just as i take your point about individual retirees of the point of the exercise of the government has gone through in making these lump sum payments just to give g r s the wherewithal to them to allow individuals to retire so it's not a matter of our contractual relationship with retirees it's a matter of our contractual relationship which e e r s under the settlement which we're funding through lump sum payments actually juris requests and quite frankly the best answer to that  any kind especially a pension system and for wanting money up front when all money has time value to it and that is a very significant aspect of the management of any front so i am not sure what your point is about there being something perhaps untoward about wanting your money upfront if money is not suggesting anything untrue or room suggesting the the obligations are being met to be under agreement between the parties and then simply to make it easier to have the money sitting somewhere is not a basis for getting any team one million dollar judgment especially when the  is necessary to make your case a judge maybe would you like to get in again your please nothing further from me at this primes here all right if that's sum arrangements and to be pain to be settling up as each retiree comes up for retirement there's something odd about out of the system the system would rather have the money upfront and that's understandable and we're doing the best we can to lump sum get lump sum payments of that desire doesn't convert into a basis for finding us in contempt of an order and the only other point i'd like to leave the court with is as we point out a motion for judicial notice which is pending before the court the tw s report details that we have now paid forty two million dollars to g r s and direct contributions we've been making payments pursuant to a special statute riparian of time out at seven million dollars a year now almost according to one million dollars  this both by audio and video now thank you mister let me let me begin where mr shirker almost left off and that is he's indicated that  his side would stand on the briefing with respect to the penalties and interest so i'd like to hear from you on that because putting aside for now the eighty million dollars tell me why the two thousand and five statute imposing interest and go in once the fees on unpaid contributions to apply to the contributions g b i missed prior to the statutes going into effect that can't be right yes and if i man like to explain this was part of remedial legislation in two thousand and five different number of things one of which was a created a new lower tier of benefits raise the amount of money even employees have to take out of their paychecks and put into the system and quite frankly an added incentive for the government to pay i'm talking so so early you simply suggesting because you use the word medio you simply saying that just because the statute of it's is a clear remedial purpose that that's a not to justify imposing penalties on mr contributions that might otherwise seem to be creating an ex post facto problem i don't think it's an ex post facto problem your honor the if the decree itself actually contemplated the future enactment of laws providing for the payment of interest and penalties in the eighty four dollars to crave the judge said gee i wish i could go in the water so i wish i could award interest i have authority to do that now but if i ever do the decree will be amended and by passing a statute that amended the concern by the judge in one thousand nine hundred and eighty four and remember this is a this isn't one entity placing a burden on another entity this is the government of the virgin islands passed a law requiring itself to pay penalties and interest this is your honor referred earlier to the time valued will is where is there any clear textual indication that that's what the legislature the  unicameral legislative body of the virgin islands intend there are there is no legislative history that we were able to try to ask you about legislative history because our jurisprudence also says there's no need to look to legislat intent to have these two thousand and five amendments reach back why would you pass a law and not apply it to the problem the point though the text says if you have benefits because the problem may persist maybe going forward if if if contributions are not paid for period fourteen actually if you look at ourselves report the greater sum of money there was an issue involved the debts owed every pay period that goes by every annual actuarial valuation that goes by and says you haven't paid what's necessary to maintain this system then the debt in essence renews and the calculation of the interest and penalty began on the day the statute became effective it didn't go back and say by the way you owe me interest all the way back to nine one you owe me interest from the effective date in two thousand and five which according to the statute i think was ninety days after the governor signed the bill and can i just ask a question on this point that just touched me not sure if i was following why why was this not brought to the district court to amend the consent judgment as i understand it the consent judgment that if an act is established by the legislature this consent judgment shall be amended to reflect this change d i don't believe there's any representation of the parties ever sought to amend the consent decree so what are we to do with that lack of i think the i think we look at what the purpose of the decree the p decrease why would we get to the park to to pick up on the chief point why are we getting to the purpose of the decree when the language doesn't seem to have any lack of clarity the language in the decreases repel the contributions under seven  and eighteen provides for a free punch of contributions the member sponsored engine which the government pulls from your pain shock the fixed rate contribution which is gone up over a period of time to think it's twenty three percent of payroll and then in order to it seems on one hand you're saying we need to follow the law we need to read what is written in section seventy two on the other hand or say we don't need to follow what's in the consent decree because it's obvious what was intended by the two thousand and five amendment why shouldn't we pick one or other in terms of our in terms of you don't you don't have to i think that the judges in one thousand and four the decree will be amended should you decide to create interest which was done in the two thousand and five asks them to decree will be amended i read that as saying that the decree itself in essence will apply to that as well because it is an obligation of the government created which said we're going to pay this is the ultimate money bill and and for that reason i think that you read the language towards its purpose you know the perp and i think the purpose is important because a consent decree is designed to for the parties to effectuate their agreement about a problem but then have the contemporary of the court to enforce it just in case somebody breaches and quite frankly the government's been in breach of its own statutory obligations right out of the box i mean as early as the sixty four audit which is why and by the way obviously i'm addressing money in this case quite frankly is the actual really determine contribution you know it's true that up on person at a time when there's nothing one thousand people out there that we don't have enough money for  is the real issue what about that though what about the true up process and i i understand that that's a more recent really implemented phenomenon when did that the plans and says you're not supposed to get a pension if there's contributions are always on your and if we so you so so is it is it safe for this panel to conclude  at this point to assume that from the point of implementation of the true up process that it's been used effectively and that as a consequence of that use there have not there been any missing employer contributions with respect to those individual annuitants or pensioners no because the atack they were in the  you just came in if you had all your nope is richard your notice a personnel action so that we cover your entire career you've got a pencil truck it was only in the later period where the truck was used judgment interest why shouldn't that be applied because this is an obligation which is not the result of a judgement it's an obligation which the government consented to it in a green back in ninet and and for that reason i think it's that it is just a and again this is a situation usually where you see a statue and it's going to be applied retroactively to the legislature applying the law to other as you know from the scholarly material provided sixty percent of ultimately of the value in a defined benefit retirement plan comes from best but if we're not getting the money to invest which as you see from the most recent reports despite very good returns we don't have money to invest and we've had to fire all our active managers in just follow the market in a little tax and it's not generating enough income and absent a massive infusion of cash the system is going to go to the government i think the best example is the government said you know what it was that when i saw staying with her so we don't have sixty million dollars are and will retire repay role is two hundred and sixty so their statement of various points during the proceedings and said i will pay should go if the system runs out of money that's fantasy and id and it isn't going to happen no defined benefit  we know that that person's got to work thirty years to get a pension and we know what the approximate increase in salary is going to be from day one to the last day and you know what the chances are based on statistics that person's going to stay a quitter dire become disabled and based on all the statistics we say for that person you got to put in x dollars every year into the fall and and we assume it will earn money is not really connected this question and the information seeks to connect it to the specific legal issues that are before us but do i recall correctly that the government of the virgin islands is the largest employer within the territory as far as i know they are it's a significant proportion certainly of the population there the gravity of the situation before all of this and i'm sure accounts for why this case and its implications may cost you sleep at night and i can assure you that it concerns this court greatly because the u s virgin islands is not only a part of our jurisdiction within the rd circuit we have close relationships otherwise with the to make sure that you have had an opportunity to argue as much as you wish if you cross appeal and we will then as a consequence of that for shirker certainly more than the three minutes that he reserved for rebuttal to address anything wishes i'm across appeal as well but do i understand you to be arguing that effectively one reason why that position which again i don't find supported by the text book but why that position bothers me in this particular case  that is that even simply looking to the experts test simonian what we know about gaps in the record if you will what we know about the and availability and cost of unreliability of records it occurs to me that not all of the fault for that rests with the government of the virgin islands and that some of it may well be indeed probably is a function of some mismanagement or oversights on the part of g r s over the years so isn't your position essentially the suggest you're a guarantee a guarantor here government of everything that's happened in the past that is left us in this occasion we've tried to get somebody to listen to us to put the money in the actual reserve one of the best in the government most recently this cord back in two thousand bob said well we don't know for sure that it's going to go the last five years that's what we've been fighting over is trying to get the money i don't ascribe bad motives to the government of the virgin islands they have financial problems the hurricanes in the pandemic and just the fact that it kind of gets ignored by its parents to the north hasn't helped its economy over time but that's not going to help these retirees and these workers this is part of their pay a pension is just deferred compensation for labor performed in my active workers their contribution of eleven percent is all right to the retirees and it means nothing for them now in their home when it's in it's more than just different compensation it is it's  expectation and an expectancy upon which people's futures are predicated and planned and that is something that has more than just a monetary value affixed to it so i  understand exactly what you what you were saying was to close near before before we draw your presentation to a close two points and perhaps any anything you would like to say by way of wrap this no matter how this case comes out whether the retirement system came out with zero who or with eighteen million dollars plus who whether eighteen million dollars plus what the interested penalties amount to we know the is solvency problem of the system and we also know just what the f without that there is the pending insolvency of the system ahead this court can simply rule we will simply enter judgments supported by an opinion but that judgment is after dropping down to fifty dollars or some by some measure something because we're going to run out of money and maybe something is better than nothing something for and for a larger number of people's better than full for some and nothing for everybody else but judgment he actually asked a question that relates to that which is we took the judgment because what's there to execute against even if you could do that the answer is if if we got a judgment for which are firm to judge gomez's order on the sixty three million dollars and reversed his order and also said the actually determined contributions which are missing are owed to you to which they are because that's what will either make or break the survival so stop it's hope that we can monetize the debt independently in market and i know this is the horse the record but i had the privilege to work and i think really it by doing that so that's  jurist to pet a horrible thing to have to deal with detroit's pension plans were actually fully funded at the time the city declared bankruptcy so they were able to survive detroit  collection in the magnificent art museum that it has which it took and monetize that to get the money to bring the city out of bankruptcy and maybe everybody has to give a little bit but without that large bankruptcy process what what's your authority for how it is that we are able as an article three court to order the kind of judgment that you seek what what can you point me to that is similar in circumstance that would give comfort to this court's understanding of how it has the power to enter the judgment that you're seek because the parties agreed that the government would pay all contributions do under seventy dollars to him this is really nothing but an old fashioned equity proceeding isn't it counsel it's kind of what it's turned into and i know the that that while it started out slowly in fact it could in fact the original consent decree rist obligations by governments across the country tend to exceed their ability to pay i would think that this would be a familiar and kind of offer framed procedure that we would see and  yet to be candid i can't find anything similar to this so i'm wondering if it is is common as we seem to think it is where are the other examples of where it's been i think i can point to state the state law cases  not necessarily i know you would you may make a different view it is not necessarily a revenue raiser so i'm trying to find something that fits those kind of narrow constraints well i think it is i think it is some of the bill because it they have held that the right to the pension is a conqueror we look to the sister courts in the united states which say that the contribution to the system you know don't expect we're going to be held on the fire sale on the by the cruise dock there are buildings owned by the government but getting the full obligation that everybody willingly took all the government took it on when they created the plan they took it on a one million to stall these workers to spend their lives in the service of the people in the virgin loans and still working for the people who were part of the government's contribution with their hartnell money and in the decree itself not once but twice said we will pay all contributions do under seventy eight dollars if this is a statutory construction case which i think it is and if this is a contract construction the fact that we have the vehicle by which we can vindicate the interest at issue in the consent decree is this court's responsibility to to observe your own judgment and for that reason and i think the court for its generosity of tom and your thoughtful questions that we ask you to do the following we ask you to affirm judge gomez's ruling as to the fixed rate contributions with the penalties and interest we ask you to reverse this rule as to is which is a legal challenge to an eighteen million dollars judgment for us forty nine billion dollars in interest and penalties tacked onto it because we are making prior period employer contribution plans and have been for a payment is supposed to be made so i cannot shoot or dip into the consensual and that hasn't that that time opinion has never been made right the testimony from the commissioner of finance is that nothing has ever been appropriated for a deck or a d c oral or whatever whatever whatever it's been called that's correct the reason it is an appropriate is because there's nothing to appropriate under section seven if you know f l that doesn't mean that the government o the virgin islands is prohibited from making direct contributions to cheat r s and it does so as of now to do a forty two million dollars but that's not a statutory compulsion that requires a group requires that to be done it would of saying that the government couldn't have good novo allocated dollars during the pandemic for various various worthwhile causes because there was no statute that compel the government to do so the government is making direct contributions the g e r s the course of the government's duty to do exactly what we're talking about here today the question is whether subsection f is anything more than what it appears to be on its face which is how do you measure the bi weekly employer there was a fixed employee complete contribution of four percent the government's contribution was not fixed in any way it was supposed to be actuarially to term and the government actuarily determined that its contribution would be fo the amount of time to this case this morning beyond what is christian or in terms of our argument timing and what each side has  certainly suggests the importance even the gravity that the rd circuit attaches to this dispute that is before us and as we have a number of  earlier in this proceeding to the future implications of this something that i'm sure both sides in both of counsel present take very seriously and have thought about and i'm sure will continue to think about because this matter will not be over by any means when the court enters its judgment when this panel files a judgment in the matter and many people including the overall fiscal well being of the u s virgin islands will be if not at stake will be impact greatly so i thank both of counsel for their excellent were arguments to take the matter under advisement