PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________ __________

Nos. 20-1749 and 20-1766

_______________________

GOVERNMENT EMPLOY EES RETIREMENT SYSTEM OF THE VIRGIN ISLANDS, Ap pellant in No. 20-1766

v.

THE GOVERNMENT OF TH E VIRGIN ISLANDS;
COMMISSIONER OF FINANCE OF THE
GOVERNMENT OF THE VIRGIN ISLANDS, Appellants in No. 20-1749

_____________ __________

On Appeal from the District Court of the Virgin Islands (D.C. No. 3:81-cv-00005) District Judge: The Honor able Curtis V. Gomez

_____________ _____________

Argued December 8, 2020

Before: SMITH, Chief Judge , CHAGARES and MATEY, Circuit Judges

(Filed: April 9, 2021)‐ iiRobert D. Klausner [ARGUED]

K LAUSNER

, K AUFMAN

, J ENSEN & L EVINSON 7080 N. W. 4 th Street Plantation, FL 33317

Cathy M. Smith

G OVERNMENT E MPLOYEES R ETIREMENT S YSTEM 3438 Kronprindsens Gade GERS Complex, Suite 1 St. Thomas, VI 00802 Counsel for Government Employees Retirement System

Brigid F. Cech Samole
Katherine M. Clemente
Elliot H. Scherker [ARGUED]
G REENBERG T RAURIG

, LLP
333 Southeast 2 nd Avenue
Suite 4400 Miami, FL 33131

Angel Taveras

W OMBLE B OND D ICKINSON LLP Independence Wharf
470 Atlantic Avenue
Suite 600

Boston MA 02110

Carol L. Thomas-Jacobs

O FFICE OF A TTORNEY G ENERAL OF V IRGIN I SLANDS Department of Justice 34-38 Kronprindsens Gade GERS Complex, 2 nd Floor St. Thomas, VI 00802‐ iiiCounsel for Government of the Virgin Islands and Commissioner of Finance of Government of the Virgin
Islands

Ian H. Gershengorn

J ENNER & B LOCK LLP 1099 New York Avenue, N.W.
Suite 900 Washington DC 20001 Counsel for Amicus Appellees

T ABLE O F C ONTENTS
I. Background and Procedural History _____________ 3

A. Legal B ackgroun d ____________________________ 3

1. Creation of GERS in 1959 ____________________ 3
2. The 1968 amendments _______________________ 5
3. The 2005 amendments _______________________ 5

B. Procedural History ___________________________ 7

1. The 1981 complaint _________________________ 7
2. The 1984 cons ent judgment

___________________ 8
3. The 1994 amendment to the consent judgment ____ 8
4. The tangential 2001 action ___________________ 9

5. The 2016 enforcem ent proceedings ____________ 10

II. Jurisdiction and Standard of Review ____________ 15

III. The GVI’s Appeal ____________________________ 16

A. Principal Award to GERS _____________________ 17

1. The historical under-contributions fall within the consent judgment ___________________________ 17‐ iv2. The GVI’s historical under-contributions were properly before the District Court ______________ 19
3. Direct contributions to GE RS and the true-up process do not offset the award _______________________ 28

4. The expert reliably calculated the $18.9 million in principal __________________________________ 31

B. Award of Fees and Interest to GERS ____________ 32

1. The statutes are not intended only for willful
misconduct ________________________________ 33
2. The District Court erred by applying the statutes retroactively _______________________________ 35

3. GERS’s action was timely ____________________ 42

IV. GERS’s Cross-Appeal ________________________ 51

A. GERS’s Textual Arguments ___________________ 54

B. GERS’s Auth orities _________________________ 59

C. The Parties’ Historic al Understanding ___________ 62

V. Conclusion __________________________________ 66_____________ _____________

OPINION OF THE COURT

_____________ ____________

SMITH, Chief Judge

.
The promise of a pension is critical to the retirement security of many of us who work . And retirement security “is often compared to a three-le gged stool supported by Social Security, employer-provided pension funds, and private savings.” 1 When an employer’s promise of deferred compensation goes unfulfilled, the expe ctations of many-a-pensioner are upended. That threat looms for a substantial share of the citizenry of the U.S. Virgin Isla nds because of the perilous financial condition of its Gove rnment Employees Retirement System (“GERS”).

When a public-pension syst em reaches the point where it is actuarially unsound, the blam e rarely lies with a single person, political party, or institu tion. Economic recession, unfunded legislative mandates, poor investment strategies—all can conspire to destabilize a pe nsion system. And each bears responsibility for GERS’s unten able financial state.

But GERS has also faced a unique challenge. Virgin Islands law seemingly fails to obligate anyone to fund GERS when employee-compensation-base d contributions and associated investment returns fall shor t of the assets required, based

1 Former Rep. Sander Levin, Social Security at 75: Don’t Mess
with Success , H UFF P OST (Aug. 16, 2010, 12:00 PM), http://www.huffpost.com/entry/so cial-security-at-75-don_b_

683384.‐ 2- on actuarial assessments, to meet future pension commitments. For decades, GERS has experien ced annual deficits between its assets and projected liabilities to system participants. Its aggregate shortfall now stands at about three billion dollars— leaving the system on the brink of insolvency.

Yet the Government of the Vi rgin Islands (“GVI”) is itself fiscally challenged and ha s at times failed to remit to GERS all the employer contributi ons it is statutorily mandated to make. GERS has repeatedly sued the GVI for these contributions—first in 1981, resulting in a consent judgment, and most recently in 2016, when GE RS sought to enforce that judgment in court. GERS claimed that, as far back as 1991, the
GVI had contributed tens of mi llions of dollars less thanrequired by the statutory percentages of employee compensation. GERS also sought to co mpel the GVI to step into the billion-dollar breach, arguing that—independent of these fixed-percentage contributions —the GVI must fully fund GERS to the point of actuarial soundness.

With an appointed expert’s help, the District Court
awarded GERS an amount calcula ted to reflect the GVI’s historical percentage-based under-c ontributions. We will affirm that award of principal. But the Court erred when it enhanced the award by applying late-arrivi ng interest and penalty statutes retroactively. We will vaca te the portion of the judgment
to GERS that includes those enhancements and remand with
instructions for the District C ourt to reduce its award accordingly. Finally, the Court determ ined that the c onsent judgment does not require the GVI to fund GERS for the delta between its assets and liabilities. We, t oo, find no anchor for this sweeping duty GERS seeks to impose on the GVI, so we will affirm the District Court’s ruling in GE RS’s cross-appeal. Even were we to cut that obligation on a ra tionale made of whole cloth,‐ 3- the system would rema in insolvent. The citizens of the United States Virgin Islands —population 106,405 2 —simply cannot pay the necessary billions. Th e cure for GERS’s chronicunderfunding is not judicial but legislative—if not at the territorial level, then perh aps on Capitol Hill.

I. B ACKGROUND AND P ROCEDURAL H ISTORY

We need not trace the long and winding road across laws, history, politics, and litigati on that has brought the Virgin Islands’ public-pension system to where it is today. Instead, we hew to the legal framework relevant to the questions presented and to the procedural na rrative by which this case and the parties’ arguments have wended their way to us.

A. Legal Background

1. Creation of GERS in 1959. By passing Act 479, effective October 1, 1959, the unicameral legislature of theVirgin Islands (“the Legislature”) created GERS as the retirement system for GVI employees. GERS was “established as a trust, separate and distinct from all other entities”; endowed with “the powers and privileges of a corporation”; and required
to transact all its business and hold all its assets in its own name. Act of June 24, 1959, No. 479, §§ 701(c), 715(a), 1959 V.I. Sess. Laws 92, 94, 104. Th e Legislature vested responsibility for operating GE RS in a board of trustees, which has the power to authorize the purchase or sale of investments, make

2 United States Census Bureau, U.S. Virgin Islands Demographic Profile Summary File – 2010 Census of Population and Housing (2013), available at https://www.census.gov/ schools/facts/u.s.%20virgin%20islands.‐ 4- contracts, and “sue and be sued” under the GERS name. Id. § 715(b)(3), (6). The system was “established as a part of the
Division of Personnel in the office of the Government Secretary,” with the Director of Pe rsonnel acting as both administrator of GERS and secretary of the board. Id. § 715(c). 3

Act 479 also purported to fu nd GERS. It implemented section 718 of the new Retirement Code, which provided first that “[t]he various obligations of the system shall be financed
in accordance with actuarial reserve requirements from contributions by members, c ontributions by the employer, interest income, and other inco me accruing to the system.” Id

. § 718. Section 718 then require d employees to contribute to GERS via a “deduction from compen sation” at a rate of four percent, with an annual compensation cap. Id. It also set an annual compensation floor so th at the GVI, as employer, would contribute four percent for an employee “whose minimum rate in his class of position is $1200 per annum, or less.” Id.

Unlike the specified employee contribution rate, section
718 did not fix the rate for the GVI’s employer contribution. Instead, Section 718 obligated the GVI to “make [employer] contributions concurrently with the contributions by members in an amount which, if paid during such service, and added to the members’ contributions, togeth er with regular interest, will be sufficient to provide actuaria l reserves” for the payment of benefits under the system. Id. These concurrent employer contributions were to “be determin ed by applying a percentage rate to the aggregate compensation of the members for each regular

3 In 1987, the Legislature ame nded section 715 to classify GERS as an “independent and se parate agency” of the GVI. Act of June 24, 1987, No. 52 65, § 1303(a), 1987 V.I. Sess. Laws 92, 97; accord 3 V.I.C. § 715(a).‐ 5- payroll period.” Id. Section 718 provided for an annual computation “of the actuarial reserv e requirements” of the system and, in a provision reminiscent of its first sentence, looked for financing to “contributions by th e members as ab ove provided and by contributions by the employer.” Id.

2. The 1968 amendments. In 1968, the Legislature passed Act 2098, which amended s ection 718. Act of February 8, 1968, No. 2098, 1968 V.I. Sess. Laws, Pt. I, 9. Act 2098
divided section 718 into subsectio ns, with its first sentence on “actuarial reserve requirements” becoming subsection (a). Id. § 718(a). Act 2098 retained the four-percent employee contribution rate but changed the co mpensation caps and minima.
See id. § 718(b), (c). It also sligh tly modified the provision for annual computation of the syst em’s actuarial reserve requirements. Id. § 718(e). In a gloss on the original language of subsection (f), Act 2098 provided that “[t]he employer shall
make contributions which t ogether with the members’
contributions and the income of the system will be sufficient to provide adequate actuarially determined reserve for the
annuities and benefits he rein prescribed.” Id. § 718(f). And for the first time, the employer’s contribution rate was fixed at a percentage of employee compensation—on a temporal gradient from 4.00% for the pe riod before July 1, 1968 to 7.63% for the period after July 1, 1971—by the terms of subsection (g). Id. § 718(g). Both employerand employee contributions were to be paid into th e system each payroll period. Id. § 718(h).

3. The 2005 amendments. Relevant amendments were later adopted when the Legi slature passed the Retirement System Reform Act of 2005. Ac t of Nov. 2, 2005, No. 6794,

2005 V.I. Sess. Laws 380.‐ 6- First, the bill added new subs ections to section 704. That section now provides that “[r]etirement contributions paid for a prior period, whether by employer or by member, must be charged a delinquent fee of 1.5% for each calendar month or part thereof that paid [ sic ] contributions should have been paid.” 3 V.I.C. § 704(q). Such delinquent contributions “include[] prior period contribut ions due to incorrect wages
and contributions from an earlier report or wages and
contributions that should have been reported, but were not.”
Id. The 1.5 percent “assessment may not be waived,” id.

, unless the GERS administrator in “exceptional circumstances” grants a waiver—and then, “onl y once for an employer during any one fiscal year.” Id. § 704(r).

Second, the 2005 amendments require the accrual of interest on delinquent contributio ns to GERS. Under the new provision, “[w]henever any ag ency, department[,] instrumentality, or employer fails to make timely contributions, interest
shall accrue on the amount of th e contributions not paid based on the system’s domestic fixed income investment rate of
return not to exceed the rate of 9%.” Id. § 736(b).

Third, the Legislature amen ded existing provisions of section 718 by, among other thi ngs, adding that “the Board may actuarially determine the ra te of contribution for members and employers of the system,” id. § 718(a), and that “[t]he employer and employee contributions must be paid to the system within ten days after the closing of each payroll period,” id. § 718(h). The Board, ho wever, “may not increase‐ 7- rates, in addition to rates alrea dy in effect, by more than 3.0% over a five-year period.” Id. § 718(b). 4

Finally, the 2005 act codified section 734, under which “[a]ll payments required by this chapter to be made by the employer to the retirement fund are continuing obligations of
the Government.” Id. § 734. This provision ensures that “funds owed to the system by the employer should never be capable of escaping payment due to a statute of limitations.” V.I. 26th Legis., Bill No. 26-0071, Bill Summary, Section 21.

B. Procedural History

1. The 1981 complaint. Exercising its “power to sue and be sued in its own name,” GERS filed a complaint in 1981 against the GVI and its Commissi oners of Finance in the District Court of the Virgin Islands. Emps. Ret. Sys. of Gov’t of V.I. v. Quinn

, No. 3:81-cv-5 (D.V.I.), Compl. ¶ 2; JA754. 5 GERS alleged that the Commissi oners had failed to timely remit several pay periods’ worth of employee contributions to GERS and commingled these funds with the GVI’s. GERS also alleged that the GVI had failed to timely remit to GERS “its matching retirement contribut ion of 11%,” as required by

4 This constraint on GERS’s ra te-setting ability resides in the subsection of the statute on employee contributions. But
GERS seems to understand that it equally applies to the employer rate. Indeed, GERS’s inability to unilaterally increase the GVI’s required employer contribution percentage is arguably what makes GERS’s cross- appeal justiciable. We express no opinion on the scope of GERS’s authority under section 718(b).

5 Citations preceded by “JA” are to the parties’ Joint Appendix.‐ 8- statute, to the tune of ne arly $500,000. 1981 Compl

. ¶ 9; see also id. ¶ 4 (noting GVI’s responsibility “to contribute 11%” as “the employer”). GERS requested injunctive relief ordering
the Commissioners and the GVI to timely pay GERS all funds due and owing, preventing th e Commissioners from commingling funds, and restraining th e GVI “from futu re withholding of matching contributions.” Id. at 3. GERS also sought interest of at least 18 percent annua lly on all funds due and owing, as well as attorneys’ fees and costs.

2. The 1984 consent judgment. After written and oral discovery, the parties entered into a consent judgment in 1984. The judgment acknowledged that the GVI’s Commissioner of
Finance “receives and releases employee and employer retirement contributions.” JA113. So it obligated “defendant, Commissioner of Finance, [to], with in thirty (30) days of each payroll period, certify and pay into the Employees’ Retirement System Fund the total amount du e of employee and employer
contributions as defined in Title 3, Section 718.” JA113–14. The judgment recognized that “[a]t this time, the Court does not have jurisdiction to compel th e payment of the legal rate of interest by the Commissioner of Finance on deliqneunt [ sic ] employee and employer contributions.” JA114

. But it also provided that “if an act is es tablished by the Legislature, authorizing the payment of inte rest, this Consent Judgment shall be amended to reflect such change.” Id . A Virgin Islands assistant attorney general ex ecuted the consent judgment on
behalf of all defendants.

3. The 1994 amendment to the consent judgment. InMarch 1994, four members of GERS individually filed a federal lawsuit against GERS, severa l of its trustees, and the GVI alleging chiefly that the GVI ha d been dilatory in making‐ 9- required payments to GERS u nder the consent judgment. See Molloy v. Monsanto , Civ. No. 1994-30, 1994 WL 326237, at *1 (D.V.I. June 9, 1994). Among the motions filed by the Molloy plaintiffs was a motion to enforce the consent judgment, seeking to require the GVI to remit employee and employer contributions to GERS within 30 days of each payroll period. Id. That motion, although filed in Molloy , was “considered as having been file d in the litigation that produced the consent judgment,” id. at *1 & n.6, and the District Court denied it without prejudice. Quinn , 1994 WL 326224, at *1 (D.V.I. June 9, 1994) (noting a llegation that “the amount of GERS money in the government’s bank account has increased more than fifteen fold since December 1984”).

Hoping to remedy these and ot her issues related to the consent judgment, GERS and the GVI jointly asked the District Court to modify it. The modifi ed consent judgment, entered in April 1994, ordered that a separate interest-bearing bank
account in the name of GERS be created for the Commissioner to use when depositing employer and employee contributions, “interest[,] and all other monies received of every kind and description belonging to the System .” JA316. The parties also agreed on an auditing process, deposit logistics, and an investment interest allocation methodol ogy. The provisions of the1984 consent judgment were otherwise retained. Upon completion of motions practice, and following conferences with the District Court, any disagreement between the parties about the amended consent judgment seemed to have dissipated by late

1994.

4. The tangential 2001 action. In 2001, GERS sued the Governor of the Virgin Islands , the Legislature, and the GVI seeking to compel th e payment of contribu tions required under discrete 1994 legislation that en acted a special early retirement‐ 10- incentive program aimed at avoidi ng layoffs of certain employees. See, e.g.

, Gov’t Emps. Ret. Sys. v. Turnbull , 134 F. App’x 498, 500 (3d Cir. May 16, 2005); see also 3 V.I.C. §§ 718c, 718(j). That legislation included a financing mechanism requiring the GVI to make special quarterly contributions to GERS to compensate for employee contributions lost because of the early retirement of in cumbent contributors. GERS alleged that the 1994 legislation and related amendments did not put in place an adequate fi nancing structure, and thus unconstitutionally impaired an implied contract between the GVI and its employees, in violation of Article 1, Section 10 of the
U.S. Constitution.

The District Court in Turnbull dismissed GERS’s complaint, holding that GERS failed to state a cognizable Contracts
Clause claim. Gov’t Emps. Ret. Sys. v. Turnbull , No. 01-cv-69 (D.V.I. Jan. 23, 2004). We affirmed, albeit on ripeness grounds. We held that GERS “f ailed to establish a justiciable case or controversy” becaus e “no GERS members have suffered any harm” and there was “no evidence in the record that any GERS members have been denied, or are about to be denied retirement benefits, or were otherwise injured as a consequence of the claims allege d.” 134 F. App’x at 501.

5. The 2016 enforcement proceedings. In 2016, GERS moved to enforce the consent judgment, alleging that the GVI had violated section 718(f) by failing to fund GERS for the
entire delta between its assets a nd its liabilities to pensioners. GERS referred to this supervening obligation, over and above the fixed-percentage employer co ntributions spelled out in section 718(g), as the GVI’s “actuarially determined employer
contribution” or “ADEC.” JA 89–93. Then, in 2017, GERS moved on an emergency basis to enforce the consent judgment because, for several months be ginning in late 2016, the GVI‐ 11- withheld wholesale its employee s’ and its own employer fixedpercentage contributions. GERS filed both enforcement
motions in the 1981 Quinn action, under its case number and caption. And both motions soughtenforcement through a finding that the GVI was in contempt of the consent judgment or, alternatively, by recourse to the District Court’s “general equitable powers.” JA293–94; JA515. The GVI ultimately
admitted to the blanket withho lding of fixe d-percentage contributions, the District Court found a breach of the consent judgment, and the GVI then re paid a total of about $36 million—which included principal and interest—by July 2018.

The proceedings next focu sed on whether what had
occurred was an isolated breach or whether the GVI had failed to remit fixed-percentage contri butions to GERS in any prior period. GERS’s administrator testified that “missing employer contributions going back years ar e still outstanding.” JA1748. (According to GERS p ublications, “[t]he issue of prior periodsmissing employer contributions” first surfaced with the implementation of a new computer sy stem in March 2012. JA3055; JA3082; JA3107.) GE RS calculated that the GVI owed over $72 million in previously misse d employer contributions, including interest and penalties, th rough the end of 2017. Based on a sample population of employ ees, the GVI claimed that itowed GERS just a few hundred dollars. Because of the disparity in the parties’ calculations, the District Court appointed an independent expert, RSM US LLP (“RSM”), to determine the extent of the GVI’s arrears for prior periods beginning in 1991 and running through December 31, 2018. The GVI and GERS each had equal access to RSM’s data and personnel, and equal obligations to provide records to and cooperate with RSM.

RSM examined all available payroll documents and records of contributions to GERS . RSM concluded that the GVI‐ 12- had indeed failed to contribute all that was required under the fixed percentages in force during various payroll periods dating back as far as 1991. 6 Based on detaile d records covering 2010–2018, RSM determined th at the GVI under-contributed to GERS during that period by about $4.0–$5.0 million. According to RSM, these under-contributions stemmed from clerical, accounting, and processi ng errors. In a February 5, 2020 order, the District Cour t adopted RSM’s calculations, awarded GERS $5.0 million in principal for the GVI’s 2010– 2018 under-contributions, and di rected RSM to calculate the pre-2010 amounts and undertake an interest analysis. TheCourt also set a schedule for the parties to brief the appropriateness and amount of interest.

RSM concluded that the un der-contributions during the1991–2009 period were less certain because of gaps in the relevant pay records. The “[m]ost significant[]” impediment to its obtaining comparable deta iled payroll and employment
information for the 1991–2009 calculations was that the GVI had changed its payroll software at the end of 2009 without “migrat[ing] detailed historical payroll and employment information.” JA4806. Making matters worse, “[t]he [GVI] server on which [the defunct software’s] data was stored . . . was decommissioned and did not receive patching and maintenance in recent years.” Id . Even so, RSM successfully retrieved from the decommissioned server annual payroll reports that
included the GVI’s historical determinations of each employee’s pensionable wages. By subtracting known non6 Over the same timeframe, RS M determined—based on data it characterized as incomplete—that GVI employees also
under-contributed to GE RS by some $2.2 million. GERS elected not to pursue current or former GVI employees to
recover that amount.‐ 13- pensionable wages, such as ov ertime pay, from reported gross wages, RSM performed its own calculations of pensionable wages. Applying the statutory contribution percentages to the GVI’s and to its own pensionabl e wage determinations yieldeda significant variance between the two as to the GVI’s historical contribution obligations. Ac cordingly, RSM went on to
refine its calculations.

RSM began by sampling 20 employees and comparing
the GVI’s and its own calculati on of each employee’s pensionable wages with their salary information as documented inNotices of Personnel Action (“NOPAs”), which the GVI generates based on changes in an employee’s pay or employment status. This comparison led RS M to assume that the GVI hadproperly calculated an employee’s pensionable wages whenever its calculation was greater than 60 percent of RSM’s own
initial calculation. RSM thus ad opted the GVI’s calculations in every such instance across th e entire set of raw pensionable wage data from 1991–2009, amountin g in toto to 83 percent of the data inputs to RSM’s findings for that period.

But for the remaining 17 perc ent, RSM’s and the GVI’s pensionable wage calculations va ried more significantly. RSM analyzed available payroll reco rds for the 97 employees with the largest variance, requesting historical personnel records, including information relating to annual salaries, from both the
GVI and GERS. It estimated an expected pensionable wage amount for these employees by using NOPAs, when available, and, when those were unavaila ble, GERS’s annual benefit summaries. But this methodolog y accounted for only about 12 percent of the high-variance problem. For the remaining 88 percent of the high-variance data, which “likely erroneously include[d] certain non-pensiona ble wage types,” RSM reduced its own pensionable wage calcul ations by a ratio derived from‐ 14- a sample of 75 employees for wh om there was “sufficient supporting documentation”—the average ratio between theirdocument-supported pensionable wages and RSM’s own initial pensionable wage calculations. JA4815–16. RSM then
relied on both of its sets of adjusted pensionable wage
calculations.

Using this methodology, RSM determined with 95 percent confidence that the GVI’s 1991–2009 under-contributions
fell within an interval from about $11.6 m illion to $15.8
million. The District Court chos e the statistical midpoint of this range and, in an April 3, 2020 order, awarded GERS $13,860,879 (hereinafter r ounded to $13.9 million) in principal.

In calculating interest and fees, RSM applied the 2005 interest and delinquency-fee statutes to the balance of undercontributions the GVI accumulated before the statutes’ effective date and, alternatively, only to contributions the GVI
missed on or after that date. In its April 3 order, the District Court adopted the former calculation and awarded GERS $43,161,354 (hereinafter rounded to $43.1 million) in interest and penalties on the GVI’s $13.9 milli on in undercontributions from 1991–2009. Ba sed on RSM’s calculations,
the Court also awarded GERS $6,121,273 (hereinafter rounded to $6.1 million) in interest and delinquency fees on the $5 million in principal for the 2 010–2018 under-contributions.
The District Court’s award to GERS for all the GVI’s undercontributions from 1991–2018, incl usive of interest and penalties, totaled about $68 million.

Finally, the District Court granted judgment to the GVI
on GERS’s motion to enforce the consent judgment with respect to the ADEC obligation. The Court reasoned that the‐ 15- consent judgment, which oblig ated the GVI to make its employer contributions to GERS within 30 days of each payroll period, conflicted w ith GERS’s proffered ADEC obligation, which would obligate the GVI to fund GERS in
accordance with the an nual actuarial analysis ordered by the
Retirement Code.

The GVI appealed the Distri ct Court’s award of principal and interest, and GERS appeal ed the District Court’s denial
of its motion to enforce the cons ent judgment as to the alleged ADEC obligation.

II. J URISDICTION AND S TANDARD OF R EVIEW

We have jurisdiction to re view the District Court’s February 5, 2020 and April 3, 2020 orders under 28 U.S.C. § 1291. 7 The District Court had jurisdiction over GERS’s original 1981 action under Section 22 of the Virgin Islands Revised Organic Act of 1954. 48 U.S.C. § 1612. Its jurisdiction to hear
GERS’s motion to enforce stem s from United States Public

7 The February 5, 2020 order aw arding GERS principal for the 2010–2018 period was not listed in the GVI’s Notice of Appeal. Federal Rule of Appella te Procedure 3(c)(1)(B) requires that the Notice “designate the j udgment, order, or part thereofbeing appealed.” That said, we liberally construe the requirements of Rule 3(c). Pacitti v. Macy’s , 193 F.3d 766, 776 (3d Cir. 1999). “[W]hen an appellant gives notice that he is appealing from a final order, failing to refer specifically to earlier orders disposing of other cl aims . . . does not preclude us from reviewing those orders.” Shea v. Smith , 966 F.2d 127, 129 (3d Cir. 1992) (citation omitted ). When, as here, there is a connection between the specif ied and unspecified orders, review is appropriate. Pacitti , 193 F.3d at 777.‐ 16- Law No. 98-454, 98 Stat. 1732, 17 38, sec. 703(b) (codified at 48 U.S.C. § 1612 note (Jurisdi ction of District Court Over Pending Cases)).

We review the District C ourt’s interpretation and construction of the consent judgment de novo. Holland v. N.J. Dept. of Corr. , 246 F.3d 267, 277–78 (3 d Cir. 2001). We also review statutory cons tructions de novo. United States v. Hodge

, 948 F.3d 160, 162 (3d Cir. 2020). We review any mixed questions of fact and la w de novo insofar as “the primary facts are undisputed and only ultimate in ferences and legal consequences are in contention.” U.S. Gypsum Co. v. Schiavo Bros., Inc. , 668 F.2d 172, 176 (3 d Cir. 1981). But when the mixed questions require a district court to make casespecific factual conclusions, our review is deferential— examining the record for clear error. See U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Village at Lakeridge,

LLC , 138 S. Ct. 960, 967–69 (2018).

Interpreting an issue of Virg in Islands law that the Virgin Islands Supreme Court has not ruled on requires us to “predict how [that court] would decide” the matter. Edwards v. HOVENSA, LLC , 497 F.3d 355, 361 n.3 (3d Cir. 2007).

III. T HE GVI’ S A PPEAL

The GVI raises a hodgepodge of objections to the District Court’s judgment for GERS on the issue of historical under-contributions. The challeng es can be sorted into attacks on the District Court’s (A) awar d of $18.9 million in principal to GERS and (B) enhancement of that principal with $49.2 million in interest and fees. We will affirm the District Court’s award of $18.9 million in princi pal to GERS. We will also affirm its award of $6.1 million in interest an d fees for the‐ 17- 2010–2018 period. But the District Court erred by applying the interest and delinquency fee statutes to enhance arrears that
the GVI accumulated before those statutes’ effective date. We will therefore vacate the $43.1 million enhancement for the 1991–2009 period and remand with instructions.

A. Principal Award to GERS

The GVI contends that (1) its under-contributions to GERS from 1991–2018 are beyond the scope of the consent judgment; (2) the issue of wh ether it under-contributed to GERS was not properly before the District Court; (3) certain
of its direct contributions to GERS and the process of “truing up” contributions at the time of an employee’s retirement offset the $18.9 million award; and (4) the portion of the award covering the 1991–2009 period rest s on unreliable data.

There is no merit to any of the GVI’s arguments.

1. The historical under-cont ributions fall within the consent judgment. The GVI argues that th e consent judgment was limited to requiring timely biweekly contributions to
GERS. This was different in ki nd, the GVI claims, from failing
to remit all funds that have since been determined were required under the percentages se t by statute. But the GVI’s argument conflicts with the te xt of the consent judgment and section 718, both of which requ ire mathematical accuracy.

That the “biweekly contributions were correct when
made and later circumstances ma y have required an increased contribution,” Appellants’ Reply Br. 6, is beside the point because the consent judgment a nd statute are formulaic. A consent decree is interpreted as a contract, with its scope “discerned within its four corners, and not by reference to what‐ 18- might satisfy the purposes of one of the parties to it.” Firefighters Local Uni on No. 1784 v. Stotts , 467 U.S. 561, 574 (1984) (quoting United States v. Armour & Co. , 402 U.S. 673, 681–82 (1971)). Under the c onsent judgment, the GVI must pay GERS “the total amount due of employee and employer
contributions as defined in T itle 3, Section 718.” JA113–14 (emphasis added). Section 718 in turn sets forth, first, the fixed-percentage framework for deducting employee contributions from paychecks. 3 V.I.C. § 718(b), (d). It then requires “[t]he employer” to “contribute” to GERS in “an amount paid upon a percentage of employees[’] compensation” after each pay date, and specifies certai n percentages and dates of
increase. Id . § 718(g); see also id. § 718(h). A straightforward reading brooks no argument that funds demanded by the statutory percentages are unrecoverab le if inadvertently withheld,
whether due to clerical errors orother circumstances. The Retirement Code prohibits both the employer’s intentional
“refusal” and unintentiona l “failure” to pay. See id. § 736(a) (“Neither the government nor any agency, department, or instrumentality may fail or refuse to pay the employer’s contribution required by this chapter within the applicable time limitation.” (emphases added)); accord id. § 704(s); see also
id. § 704(q) (classifying as “delinquent” and subject to enhancement “prior period contributions due to incorrect

wages ” (emphasis added)).

Granted, a consent decree’s reach is limited by “the general scope of the case made by the pleadings.” Sansom Comm. by Cook v. Lynn , 735 F.2d 1535, 1538 (3d Cir. 1984) (quotation omitted). But GERS’s 1981 co mplaint made the case that
the GVI had failed to contribu te the full amount that was required of it as employer. See, e.g.

, 1981 Compl. ¶¶ 4, 9 (alleging that GVI failed to timely remit to GERS “its matching‐ 19- retirement contribution of 11%” as “the employer”). And it sought an order compelling the GVI to pay all funds due and owing, including the withheld employer contributions, as well as restraining the GVI “from future withho lding of matching
contributions.” Id. at 3. So the general scope of GERS’s original complaint jibes w ith the dictates of both the consent decree
and section 718. And even assuming some dissonance between the allegations in th e 1981 complaint and the GVI’s under-contributions here, we are lo ath to slice and dice them in order to depart from a plain re ading of the consent judgment— particularly given the vintage of most of the relevant facts. See,

e.g. , Harris v. City of Philadelphia , 137 F.3d 209, 212 (3d Cir.1998) (noting that a court should not “strain the decree’s precise terms or impose other terms in an attempt to reconcile the decree with [the court’s] own conception of its purpose”).

We thus conclude that the consent judgment obligated
the GVI to make the under-contri butions that were the subject of the District Court’s award of principal.

2. The GVI’s historical under-contributions were properly before the District Court. The GVI raises the corollary argument that its liability for historical undercontributions to GERS was not properly before the District Court. To be sure, GERS’s enforcement motions that spawned the District Court’s evidentiary hearings sought first to impose the so-called ADEC obligation at issue in the cr oss-appeal, and then to recover contributions that the GVI had intentionally refused to pay GERS beginning in late 2016. In the latter motion, GERS alleged that th e GVI stopped timely and fully paying fixed-percentage contributions in 2016 and into 2017,
and attached a sworn affidavit from the GERS administrator to support those factual allegations . But GERS did not, in these motions, claim a systemic “uni ntentional” breach redolent of‐ 20-the GVI’s legacy under-contributions, nor did it seek fixedpercentage deficiencies stretching back decades. That said, we are not troubled by the absence of this issue from either the
enforcement motions or th e initial proceedings.

First, we cannot say that the District Court clearly erred by concluding that the GVI’s historical under-contributions were systemically intertwine d with the breaches GERS
asserted. Based on GERS’s motions, the District Court
received evidence from both side s about the ex tent of the GVI’s unpaid liabilities. The Di strict Court then heard testimony about the GVI’s various instances of nonpayment over the years, amid the backdrop of GERS’s litigation against the GVI for unpaid contributions in th e 1980s, 1990s, and 2000s. After hearing the GVI’s argument that “the indispensable predicate” to GERS’s recovery ofmissing prior-period contributions was “some sort of suppleme ntal pleading” or “motion that lays [it] out,” the District Cour t ruled that nothing “precludes a court from undertaking its own in quiry to determine . . . the depth and breath [ sic ] of th[e] breach” that “a party points

out.” 8 JA3451–71 (“[A] party certainly doesn’t take the role

8 The award to GERS of the GVI ’s contribution deficiencies
for the 1991–2018 period did not come w ith an express written
conclusion that the GVI breached the consent judgment. The GVI raises this as part of its argument against expanding the scope of GERS’s claims to embrace the historical undercontributions. But the District Court made relevant findings and a ruling of breach on this spec ific issue. Fo r example, at aNovember 2018 hearing, before instructing the parties to present evidence to value the 1991–2018 missing fixed-rate contributions, the District Court stated:‐ 21- of the Court into its hands when it makes suggestions.”). Hence the Court’s appo intment of RSM, the third-party expert, to examine the parties’ records and opine on the full range of
the GVI’s arrears. Before RSM released its first report, the
Court concluded that the GVI’s intentional withholding of contributions beginning in late 2016 was only a “snapshot in time” of a larger “systemic failure to pay what is due and owing, which systemic failure [has] requ ire[d] the Court to intervene on one, two, and multiple occasions [in the 1980s and 1990s].”

JA3774–76.

When a district court “takes a raft of case-specific historical facts, considers them as a whole, balances them one against another,” and makes a le gal conclusion consisting “primarily” of “factual work,” appella te courts should review that conclusion only for clear error. U.S. Bank Nat’l Ass’n , 138 S.

Right now the evidence th at has been largely presented by the GERS or by the Government of the Virgin Islands suggests that there is, one, a breach; and two, there is an amount that needs to be determined as to the depth and breadth of that
breach. So if the Govern ment wishes the Court to consider any other ev idence that hasn’t already been provided in the record, th en the Government needs to present th at sooner rather than
later. I think we’ve covered this issue about the
breach. . . . The breach needs to be closed.

JA1969. To take another example, the Court expressed at a subsequent hearing that “the government failed to meet its obligations to make payments on behalf of the employees and the employers,” a “deficiency [that] needs to be remedied in
short order.” JA2970–71.‐ 22- Ct. at 967–68 (reserving for de no vo review situations where “applying the law involves deve loping auxiliary legal principles of use in other cases”). That is precisely what the District Court did in concluding that the GVI’s under-contributions stretching back to 1991 were syst emically related to the initial ADEC and 2016 alleged breaches at the heart of GERS’s
enforcement motions. 9 We decline to disturb the District Court’s conclusion, which was ba sed on the consent judgment, GERS’s allegations, and decades of legal and factual development—all of which are memoria lized, but only partially, in 6,000-odd pages of appendix that the parties have submitted onappeal. Simply describing the District Court’s inquiry “indicate[s] where it (primarily) belong s: in the court that has presided over the presentation of evidence, that has heard all the witnesses, and that has both th e closest and the deepest understanding of the record.” Id. at 968; see also Manning v. Energy Conversion Devices, Inc. , 13 F.3d 606, 607 (2d Cir. 1994) (affirming district court order an d rejecting argument that it “improperly expand[ed] the scope of the settlement agreement
because . . . . district court’s fa ctual finding as to what [was] meant by the term ‘parties’ wa s not clearly erroneous”).

Even were we to second-guess the District Court’s conclusion that the breach GERS alleged was a snapshot of the breach later borne out by the ev idence, we would still uphold inclusion of the GVI’s legacy under-contributions in the litigation. If a claim, though never pleaded, is tried by express or

9 Our reluctance to hold that the District Court could not chart this course finds support in a district judge’s ability to issue civil contempt sanctions sua s ponte after giving the contemnor notice and an opportunity to be heard. See, e.g.

, Carty v.
Turnbull , 144 F. Supp. 2d 395, 396 (D.V.I. 2001).‐ 23- implied consent of the parties, the pleadings may be deemed to conform even after judgment or on appeal. 10 Schultz v. Cally

, 528 F.2d 470, 474 (3d Ci r. 1975) (citation omitted); see also Fed. R. Civ. P. 15(b)(2). De termining whether an issue was litigated by implied consent requi res balancing three factors: whether the parties recognized that the unpleaded issue entered the case, whether th e evidence supporting it was introduced

10 The operative filings animatin g this round of proceedings
were GERS’s enforcement motions . Those motions are, strictly speaking, not pleadings within the meaning of Federal Rules of Civil Procedure 7 and 10. But in the context of enforcing the decades-old consent judgment based on a live complaint, GERS’s contempt motions setting forth allegations of breach are, in substance, pleadings. See, e.g., Pleading

, B LACK ’ S L AW
D ICTIONARY (11th ed. 2019) (“[a] fo rmal document in which a party to a legal procedure (esp. a civil lawsuit) sets forth or responds to allegations”). Th e parties shared this understanding in the District Court. For example, the GVI in its briefs referred to “the motion to enforce the Consent Judgment (Doc. #2)” as “essentially the operative pleading in this litigation.” JA2463 (also describing what GERS “alleged” therein). And when counsel for the GVI argued that GERS needed to “plead” the issue of historical under-contributions, the District Court asked, “When you say ‘plead,’ do you mean a complaint?” Counsel responded: “Well, we ’re in the motion-to-enforce stage. But a motion that lays out [the under-contributions]. There certainly is no motion in th e court’s file that says anything like that, let us respond, let us take the discovery and we’ll try it.” JA3454–57. Our hol ding on this point is limited to the particular facts of this case and should not be taken to mean that garden-var iety motions are “ple adings” that can be
conformed to evidence via Rule 15.‐ 24- without objection, and whether a finding of consent prejudiced the opposing party’s oppo rtunity to respond. Douglas v.

Owens , 50 F.3d 1226, 1236 (3d Ci r. 1995) (citations omitted). The prejudice factor is the t ouchstone for granting leave to
amend under Federal Rule of Civil Procedure 15(b). See United States v. Hougham , 364 U.S. 310, 316–17 (1960).

It is difficult to imagine how it could have been any clearer to the parties that a ne w theory of breach entered the case by, at the latest, November 2018. The issue of the GVI’s
historical under-contributions was expressly raised for the first time at a hearing on September 27, 2018, when the Court questioned the GVI’s counsel for se veral minutes about this new variant of the original contempt issue. Then, on November 26, 2018, the Court again inquired about the issue with GVI counsel before hearing releva nt testimony from GERS’s administrator, and then instructed the GVI to respond to GERS’s proffered under-contribution ca lculations. The Court reiterated in an order several days la ter that the GVI was to respond specifically to the witness’s report summarizing these missing
contributions. (The GVI’s legacy under-contributions came to be called missed “prior-period” contributions, distinguishing
them from the more current defici encies first adjudicated in the proceedings.) Thereafter, so many hearings a nd briefing opportunities proliferated that it would be a waste of paper and
ink for us to recount them all here. Evidentiary hearings targeted to this issue occurred in February, March, and May 2019, after which the Court appointed th e third-party expert to determine the amount of the GVI’s historical under-contributions. RSM then issued two reports in 2020, one each for 1991–2009 and 2010–2018, with attendant opportunities a fforded both parties to furnish evidence, object to RSM’s methodology,
examine and cross-ex amine a representative of RSM, and‐ 25- argue related matters of law to th e Court. The first factor thus strongly favors a determination that the parties litigated the issue of the GVI’s under-contributions by implied consent. 11

Nor was there prejudice to the GVI. Though it opposed introduction of its legacy under-c ontributions into the case, the GVI fully litigated the issue in the above-mentioned evidentiary hearings, status conferen ces, and papers across the span of nearly two years. The GVI was hardly “denied a fair opportunity to defend and to offe r additional evidence on th[e] different theory.” Evans Prods. Co. v. W. Am. Ins. Co. , 736 F.2d 920, 924 (3d Cir. 1984) (prejudice where “the [new] the11 Notwithstanding Rule 15’s os tensible requirement of a “trial,” pleadings may be deem ed amended to conform to the evidence presented at hearings be fore a district judge. For example, in the context of habeas corpus proceedings, the Supreme Court of the United Stat es “see[s] no reason why an evidentiary hearing should not [e quate with a trial for Rule 15(b) purposes] so long as the [S tate] gave any sort of consent and had a full and fair opportun ity to present evidence bearing
on the claim’s resolution.” Banks v. Dretke , 540 U.S. 668, 704–05 (2004) (clean ed up). We, too, s ee no reason why the evidentiary hearings preceding the District Court’s entry of judgment in this matter should not equate with a “trial” under Rule 15(b). Nor, seemingly, di d the GVI. After the District
Court noted that “in an enforc ement it’s a breach of a court
order and it’s a little bit different . . . than a trial on the merits,” counsel for the GVI agreed: “when I say a trial [I mean] an adversarial proceeding in wh ich after the parties have taken discovery we can try the questio ns that Your Honor has identified .” JA3456–57 (emphasis adde d). That is what occurred below, and no party su ggests otherwise.‐ 26- ory . . . had not been squarely presented and litigated at any stage of the proceedings”); see also Douglas , 50 F.3d at 1236 (severe prejudice where implied amendment “allowed the jury
to consider another th eory of liability agai nst Griffith without Griffith having had the opportuni ty to defend against this new claim”). We cannot conceive of anything the GVI might have done differently had its historic al missed contributions been litigated in some other fashion.

We also glean from the extens ive record before us no prejudice to the GVI’s ability to assert legal defenses. Though the GVI could have sought to ra ise the statute of limitations against GERS in a separate action, we think it unlikely that any portion of such a case would have been time-barred. To begin with, by “continuing” the GVI’s contribution obligations indefinitely, section 734 of th e Retirement Code effectivelydefeats any statute-of-limitations defense at least for deficiencies incurred on or after its effective date in 2005. 12 At all events, Virgin Islands law prescr ibes a 20-year statute of limitations on actions to enforce a federal court judg ment. 5 V.I.C. § 31(1)(B). 13 In view of the discove ry rule, which we have

12 We express no opinion on wh ether section 734 was intended to apply retroactively.

13 Other courts have held that enforcement of consent decrees is subject only to equitable defe nses—not legal defenses such
as the statute of limitations. See, e.g.

, Bergmann v. Mich. State Transp. Comm’n , 665 F.3d 681, 683–84 (6th Cir. 2011); Brennan v. Nassau Cnty. , 352 F.3d 60, 62–63 (2d Cir. 2003); see also Cook v. City of Chicago , 192 F.3d 693, 695 (7th Cir. 1999) (Posner, C.J.) (holding that consent decrees are contracts‐ 27- applied in Virgin Islands cases “w hen the injury or its cause is not immediately evident to the victim,” Joseph v. Hess Oil

, 867 F.2d 179, 182 (3d Cir. 1989); accord MRL Dev. I, LLC v. Whitecap Inv. Corp. , 823 F.3d 195, 202 (3d Cir. 2016), GERS could have brought a timely sepa rate action for all the 1991– 2018 under-contributions it recovered in these proceedings. 14 The parties agree that GERS did not discover the historical

from interpretive standpoint but equitable decrees from remedial standpoint “and therefore [a re] subject to the usual equitable defenses”). We take Virgin Islands law at face value, without deciding whether to follow th ese other Circuits’ approach.

14 The Legislature exercised its power under the 1984 amendments to the Revised Organic Ac t of 1954, 48 U.S.C. § 1612, to vest the territorial courts (n ow the Virgin Islands Superior Court) with “original jurisdiction in all [local] civil actions regardless of the amount in co ntroversy.” 4 V.I.C. § 76(a);
Callwood v. Enos , 230 F.3d 627, 631 (3 d Cir. 2000). As the GVI concedes, the District Court of the Virgin Islands retained jurisdiction to enforce the cons ent judgment because the original action was “pending before the district court as of October 1, 1991, the effective date of the Virgin Island[s] Legislature’s implementing legislation.” Isidor Paiewonsky Assocs., Inc. v. Sharp Props., Inc. , 998 F.2d 145, 153 (3d Cir. 1993). Though we do not believe any of GERS ’s claims “go far beyond the Consent Judgment’s scope,” rega rdless, it would not have been
“unfair in the extreme to allow GERS to . . . invoke[e] the district court’s long-defunct local jurisdiction” over such claims. Appellants’ Br. 48. The GVI ma kes no argument that a territorial court would have affordedit more procedural or substantive rights, or reached a different conclusion in a pplying Virgin Islands law, than did th e District Court.‐ 28- under-contributions until it im plemented a new computer system in March 2012, and the i ssue was first testified to by a witness and taken up by the Co urt in these proceedings in September 2018. Until that time, it appears that the GVI was also unaware, and it has not argu ed that GERS’s failure to
discover the missed contributions sooner was unreasonable.
So even if GERS’s motions did not fairly implicate the GVI’s legacy under-contributions, confor ming the allegations to the claims litigated would not depr ive the GVI of otherwise available legal defenses.

In sum, the District Court did not clearly err by resolving factbound mixed questions in favor of adjudicating the GVI’s historical under-contributions as part of the breach that GERS alleged in its enforcemen t motions. Accordingly, the GVI suffered no prejudice from incl usion of that issue in the case and, in fact, fully litigated it.

3. Direct contributions to GERS and the true-up process do not offset the award. Next, the GVI urges that the District Court’s $18.9 million ju dgment to GERS should be offset by the GVI’s “direct cont ributions to GERS” of some $24 million since the beginning of 2015. Appellants’ Br. 37– 38. Relatedly, the GVI argues fo r an offset because the parties agreed to some sort of “set tlement” under which GERS would
reconcile the GVI’s actual and required contributions for each employee upon the empl oyee’s retirement. See Appellants’ Reply Br. 5–7, 12–13; see also Appellants’ Br. 16–17, 26–27. These arguments miss the mark.

Evidence the GVI cites as supporting its direct contribution argument shows that amounts are appropriated, in the sum of $7 million annu ally beginning in th e fiscal year ending‐ 29- September 30, 2013, from the “Internal Revenue Matching
Fund” to GERS. Act of July 5, 2011, No . 7261, § 13, 2011 V.I. Sess. Laws 84, 92; JA3108 (d iscussing Act 7261). This
annual direct contribution re quirement flows from separate legislation and does not speak of the GVI’s contributions as employer. Nor does it suggest any relationship to the GVI’s obligations to GERS under section 718. 15 E.g.

, Act 7261, § 13 (providing for contribution “[n] otwithstanding any law or provision to the contrary”). The GVI’s partial fulfillment of an
annual fixed-sum contribution requirement doe s not entitle it to offset distinct contributions it owes GERS as percentages of employee compensation. 16

Whether the true-up reconc iliation process for retiring employees conceptually ensures no under-contributions, as the GVI argues, is beside the point. For starters, the “settlement agreement” to which the GVI attr ibutes the true-up process is
not in the record. A ll we can surmise is that, after discovering the under-contributions, the par ties agreed to reconcile the GVI’s actual and required contri butions associated with an employee upon her retirement. 17 We see no evidence that this

15 For the same reasons, the District Court’s award is not an “unlawful sanction,” as the GVI urges. Appellants’ Br. 38–39.

16 GERS reported on August 11, 20 20, that it had “received $42 million [of the $56 million due] from the Internal Revenue Matching Fund under Act No. 7261.” GVI’s Suppl. App. at 5.

17 We have also found oblique re ferences in the record to GERS’s unsuccessful attempts as of October 2013 to negotiate a settlement agreement for the prior ten months of missing‐ 30- arrangement was intended to modify the GVI’s obligations under the consent judgment, wh ich would have required court approval. See, e.g.

, United States v. Am. Cyanamid Co. , 719 F.2d 558, 565 (2d Cir. 1983). Wh at’s more, the true-up process is a relatively recent phenomenon that could not cure the GVI’s
under-contributions linked to em ployees who retired prior to its implementation. And RSM’s examination of a “test sample population” led it to conclude that “members who had retired” under the true-up process “were not part of the GERS Claim calc[ulation].” 18 JA3733. The true ups sampled were all for “employees [who] were not part of the GERS Claim, which suggests that they were retired or moved.” JA3752. Nor do the equities support GE RS forgoing contributions and associated investment returns to whic h it is entitled until an employee retires. As the District Court put it, “I don’t think the [1981] Complaint was just talking about people who were applying to retire.” JA1914. So the District Court could have reasonably
concluded that none of the funds paid to reconcile contribuemployer contributions, and to an unexecuted settlement agreement dealing with missing employer contributions from October 1, 2010 through Decembe r 31, 2012. Th ese settlement efforts do not support the GVI’s argument and suggest instead
that out-of-court resolution of GE RS’s claims has persistently eluded the parties.

18 In excluding true-up paym ents, RSM’s 2010–2018 report noted that “review of [true-up] information provided to date has seemingly all related to empl oyees outside the scope of the GERS claim,” though the expert did “not receive[] a complete record of payments by th e GVI to GERS for end-ofemployment GERS settlements.” JA4048.‐ 31- tions associated with employees who retired after institution of the true-up arrangement should have been deducted from the
award to GERS.

4. The expert reliably calculated the $18.9 million in principal. The GVI contends that the portion of RSM’s analysis calculating 1991–2009 u nder-contributions turned onunreliable data because NOPAs imperfectly capture total compensation paid to a particular employee. RSM recognized as much in declining to rely on NOPAs for the 2010–2018 period. 19 But it did choose to rely on them in part to calculate
under-contributions from 1991–20 09 because of the dearth of other competent records. The GVI thus seems to contend that this portion of the expert’s an alysis flunked the reliability prong of Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1993)—yet without citing that landmark precedent.

The GVI made this argument to the District Court, to no avail. We agree with the C ourt’s finding that RSM’s 1991– 2009 methodology, described ab ove in Section I.B.5, mitigatedthe problems of relying exclusively on NOPAs by benchmarking NOPA data against other sour ces of information, such as an employee’s actual gross wages. And based on a sample of 10 employees with both NOPA s and GERS annual benefit summaries, RSM determined that the salary reported on GERS’s records was, on average, within four percent of that
reflected in the GVI’s records. Finally, the GVI’s embrace of

19 The expert observed two type s of inaccuracies associated
with GERS’s reliance solely on NOPAs to calculate what the
GVI owed in 2010–2018 under-c ontributions: “a) employees [ sic ] actual hours worked may di ffer from hours contemplated in NOPAs, and b) employee’s [ sic ] actual start and end dates may differ from dates included with in NOPAs.” JA4050–51.‐ 32- the true-up process, with its substantial reliance on NOPAs, undermines its objection. Partic ularly when a defendant’s poor recordkeeping confounds data inputs, as was the case here, “absolute certainty” in expert opinions is not required. Dodge v. Cotter Corp. , 328 F.3d 1212, 1222 (10th Cir. 2003); see also Klein-Becker USA, LLC v. Englert , 711 F.3d 1153, 1163 (10th Cir. 2013) (“Although plaintiffs must generally establish damages with specificity, some es timation is acceptable if necessitated in part by the Defendants’ poor record keeping.” (cleaned up)); cf. Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 687–88 (1946) (articulating FLSA damages burden-shifting framework “where the employer’s records are inaccurate or inadequate”); Reich v. Gateway Press, Inc. , 13 F.3d 685, 701 (3d Cir. 1994) (“If the employer fails to produce accurate records about the employee’s wa ges and hours, the court may then award damages . . . even though the result may only be approximate.” (citing Mt. Clemens , 328 U.S. at 687–88)).

We thus have no basis to conclude that the District
Court abused its discretion in ad mitting the expert testimony.
See In re Paoli R. R. Yard PCB Litig. , 35 F.3d 717, 749 (3d Cir. 1994).

* * *

Seeing no merit to any of the GVI’s challenges to the District Court’s award of princi pal, we will affirm the judgment insofar as it awards GE RS $13.9 million for the 1991

– 2009 period and $5 million for the 2010

– 2018 period.

B. Award of Fees and In terest to GERS

The GVI’s second set of arguments goes to the District Court’s $49.2 million award of interest and delinquency fees.‐ 33- Although there was no statutory authority in 1984 on which
these enhancements could be ba sed, the consent judgment provided that it “shall be amended” if Virgin Islands law later authorized interest on delinquen t contributions. JA114. Two statutes enacted in 2005 did ju st that: one imposing a 1.5 percent delinquency fee “for each calendar month or part thereof that paid [ sic ] contributions should ha ve been paid,” 3 V.I.C. § 704(q)–(r), and the other requiring interest “not to exceed the
rate of 9%” on contributions not timely paid to GERS. Id. § 736(b). The District Court ad opted a set of the expert’s calculations that applied the two statutes to the GVI’s accumulated arrears as of the statutes ’ effective date and to all its
under-contributions after that date.

The GVI contends that the District Court improperly applied both statutes, and in th ree ways. First, the GVI argues that the statutes apply only to the failure to timely make biweekly contributions and not to the failure s responsible for itsunder-contributions. Second, the GVI contends that the District Court applied them retroactively to contributions missed before their effective date, w ithout the necessary legislative intent. Third, the GVI asserts that interest and fees on most of
the under-contributions cannot be recovered due to the statute of limitations or laches. We address each of these arguments in turn, and see merit in only the second.

1. The statutes are not inte nded only for willful misconduct. The GVI maintains that the District Court should not have enhanced the $18. 9 million with intere st and delinquency fees because the GVI “timely made” employer contributions, which only later turned out to be insufficient, and because its
under-contributions to GERS were not willful. Appellants’ Br. 44, 48–52. But neither statute carries a scienter requirement; each speaks only of the unmodifi ed failure to contribute. See‐ 34- 3 V.I.C. § 704(q) (i mposing delinquency fee when “contributions should have been paid”); id. § 736(b) (triggering interest when “employer fails to make tim ely contributions”). In fact, the delinquency-fee statute seems to embrace non-willful conduct such as deficient “prior period contributions due to incorrect wages .” Id . § 704(q) (emphasis added). The
scienter-free focus of the two stat utes jibes with other relevant provisions of the Retirement Code that proscribe both the “refus[al] to pay,” which sugges ts an intentional act, and the mere “fail[ure] . . . to pay.” Id. § 736(a). We typically refrain from reading into statutes word s that plainly aren’t there, Romag Fasteners, Inc. v. Fossil, Inc. , 140 S. Ct. 1492, 1495 (2020), and we refuse to do so here. Nor must a party show
willfulness to enforce a court order. Harley-Davidson, Inc. v.

Morris , 19 F.3d 142, 148 (3d Cir. 1994).

At all events, the District Court lacked authority to waive the interest and delinque ncy fees. For its part, the delinquency-fee statute applie s necessarily (“must be charged”), subject only to the GERS administrator’s granting a waiver in “exceptional circum stances beyond the employer’s
control.” Id . § 704(q)–(r). Plainly, no waiver was granted
here. The GVI cites no case au thorizing a court to substitute
for the GERS administrator in th e waiver process, and authority from other contexts w eakens that argument. See, e.g.

, United States v. Lauersen , 648 F.3d 115, 116–18 (2d Cir. 2011) (per curiam) (holding that distri ct court properly interpreted 18 U.S.C. § 3612(h) as au thorizing only Attorn ey General, and not district courts, to waive all or part of delinquency and default penalties), cert. denied , 565 U.S. 959 (2011); 18 U.S.C. § 3612(h) (“The Attorney General may waive all or part of any interest or penalty under this s ection . . . if, as determined by‐ 35- the Attorney General, reasonable efforts to collect the interest or penalty are not likely to be effective.”).

The interest statute is also mandatory but, unlike the fee statute, provides no mechanism for waiver. Given the limited circumstances enumerated for delinquency-fee waivers, the interest statute’s conspicuous la ck of any comparable provision
means that no waiver at all will be allowed. In short, a district
court is not free to waive interest. See Lauersen , 648 F.3d at 116–17 (concl uding that Congress did not implicitly grant waiver authority to district cour ts when, in other subsections of statute, it “explicitly detailed the circumstances under which . . . penaltie s could be waived”); cf. Elkins v. Moreno

, 435 U.S. 647, 665–66 (1978) (characterizing absence of restriction in one part of statut e as “pregnant” when contrasted with other parts of statute, whic h included that restriction).

The GVI’s conduct was therefore subject to both interest and delinquency fees, a nd the District Court did not err in refusing to waive them.

2. The District Court erred by applying the statutes retroactively. The GVI next contends that the District Court should not have imposed intere st and delinquency fees on
under-contributions that th e GVI accumulated before the interest and fee statutes’ effective date: November 2, 2005. 20

20 Although in 1984 it could not “compel the payment of the legal rate of interest . . . on deliqneunt [ sic ] employee and employer contributions,” the consent judgment provided that “if an act is established by the Le gislature, authorizing the payment of interest, this Consent Judgment shall be amended to reflect such change.” JA114. One might ask whether GERS’s‐ 36- failure to seek modification of the consent judgment in the
wake of the new interest and delinquency-fee statutes forecloses its recovery of interest and fees. A cursory Reply brief mention aside, the GVI developed no argument for why the “shall be amended” language ob ligated GERS to file a motion to modify the consent judgment . The GVI’s lone acknowledgment that “the Consent Judg ment never was amended to include interest,” Appellants’ Reply Br. 10, suggests that the GVI forfeited this argument. See, e.g.

, N.J. Dep’t of Env’t Prot. v. Am. Thermoplastics Corp. , 974 F.3d 486, 492 n.2 (3dCir. 2020) (holding that “argument . . . vaguely presented without legal or factual support . . . is forfeited”); Barna v. Bd. of
Sch. Dirs. , 877 F.3d 136, 146 (3d Ci r. 2017) (noting that we will not “reach arguments raised for the first time in a reply brief or at oral argument”); In re Wettach , 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to develop either argument in their opening brief, the Court hold s that the Wettachs have forfeited these claims.” (citation omitted)). Recall that GERS sought interest on the GVI’s deli nquent contributions in 1981, and the issuing court, by including the anticipatory provision about interest, ostensibly sought to impose it in the event and
to the extent that Vi rgin Islands law later permitted. And after
the District Court found that the GVI breached the consent judgment by intentionally withholding contributions from GERS beginning in la te 2016, the GVI willingly repaid those

amounts with interest and delinquency fees. So whether GERS needed to file what seemingl y would have been a pro forma motion is neither an “exceptiona l circumstance” that favors reaching this unpreserved issue, Brown v. Philip Morris Inc.

, 250 F.3d 789, 799 (3d Cir. 2001), nor a matter of “public importance” whose non-resolution could lead to a “miscarriage‐ 37- The District Court rejected the GVI’s argument that this would retroactively enhance its liability , and applied both statutes to
the GVI’s balance of missed cont ributions as of November 2, 2005—not just to contributions missed on or after that date. Neither the delinquency-fee provis ion nor the interest statute contains any express indication that the legislature intended retroactive application. And the GVI asserts, with no contrary indications from GERS, that “[t]here is no legislative history reflecting legislative intent to apply retroac tively 3 V.I.C. §§ 704 and 736.” GVI’s Nov. 16, 2020 Legis. Hist. Ltr., Dkt. No. 57, at 2. The District Cour t also recognized as much. So the question is whether the statut es increase the GVI’s liability for past actions. See Landgraf v. USI Film Prods.

, 511 U.S. 244, 280–81 (1994); Atkinson v. Att’y Gen. , 479 F.3d 222, 231 (3d Cir. 2007). If so, they have retroactive effect and cannot be applied to conduct antedating their effective date.

We agree with the GVI that th e statutes have retroactive effect, and thus that the Distri ct Court impermissibly applied them retroactively. Before No vember 2, 2005, the GVI’s liability for all its past under-contributions was fixed at their principal amount. By subjecting that principal to interest and fees under the statutes at issue, the District Court “increase[d] [the GVI’s] liability for past conduc t” and “attache[d] new legal

of justice.” Bagot v. Ashcroft , 398 F.3d 252, 256 (3d Cir. 2005) (quoting Loretangeli v. Critelli , 853 F.2d 186, 189–190 n.5 (3d Cir. 1988)). Further, the 1994 modification to the consent judgment directed the GVI to re mit to GERS “interest and all
other monies received of every kind and description belongingto [GERS].” JA316. This language provides an alternative basis for allowing GERS to reco ver interest under the consent judgment once permitted by Virgin Islands law.‐ 38- consequences to events completed before [their] enactment.” See Landgraf , 511 U.S. at 266, 269–70, 281.

The District Court looked to an Eleventh Circuit case that addressed postjudgment inte rest to support applying the statutes to the GVI’s pre-existi ng balance. Yet it is prejudgment interest that provides the better guide. In Shook &
Fletcher Insulation Co. v. Ce nt. Rigging & Contracting Corp.

, 684 F.2d 1383 (11th Cir. 1982), the Eleventh Circuit held that a new state law increasing the postjudgment interest rate applied to an unsatisfied judg ment secured under a prior version of the law that had impo sed a lower interest rate. Id. at 1388–89. Here, however, the 19 84 consent judgment was not a money judgment, nor did it in any way determine the amount of the GVI’s liability. And po stjudgment interest does not
relate to the substantive conduc t underlying the judgment. By contrast, the District Court’s a pplication of interest and fees increased the GVI’s liability fo r the very same conduct to which GERS sought to attach liability in th e enforcement proceedings. For that reason and others, 21 we look for guidance to prejudgment interest cases such as F.D.I.C. v. UMIC, Inc. , 136 F.3d 1375 (10th Cir. 1 998). In that decision,

21 For one, a judgment represents the fixed starting point of a judicially determined obligation, one of which the obligor is actually or constructively aware. Increasing the GVI’s liability for past conduct of which it was unaware , on amounts that had not yet been subjected to j udicial determination, would work a significant extension of postjudgment interest doctrine. For another, the statutes amplify the GVI’s liability for past events
far more than was the case in Shook & Fletcher , because the GVI’s conduct was previously subject to no interest at all, not merely a lower rate.‐ 39- the Tenth Circuit held that a federal statute’s prejudgment interest provision could not be ap plied to conduct giving rise to prejudgment interest liab ility that occurred before its

passage. Id. at 1385–87. “A prejudgm ent interest award not only substantially increases mone tary liability for proscribed conduct, but it is also very clos ely tied to the amount of harm done by that conduct. It has al l the indicia of a substantive rule that cannot be applied retroactiv ely without an instruction from Congress . . . .” Id. ; see also Trout v. Sec’y of Navy , 317 F.3d 286, 291–92 (D.C. Cir. 2003) (re versing district court’s award of prejudgment interest on back pay and attorneys’ fees for periods before effective date of interest statute, based in part

on Landgraf , because “conduct underlying the complaint, rather than the procedural posture of the litigation, has significance”). Likewise, applica tion of delinquency fees and interest is closely tied to the amount of harm for which GERS sought recovery in court—missed employer contributions and
associated lost investment in come—and increases the GVI’s liability for that conduct.

The facts here do not convince us that these applications
of Landgraf are inapt. First, while the District Court rightly
noted that the GVI’s under-contr ibutions were not “complete”
at the time of the statutes ’ enactment, JA40–41 (citing Landgraf , 511 U.S. at 280), the retr oactivity inquiry is more granular. It requires us to “determine the ‘ important event’ to which the statute allegedly attach es new legal consequences.”
Deweese v. Nat’l R.R. Pass. Corp. (Amtrak) , 590 F.3d 239, 251 (3d Cir. 2009) (quoting Atkinson , 479 F.3d at 230) (emphasis added). The Retirement Code make s clear that this event is the
discrete occurrence of under-con tributing to GERS for a particular payroll period. Even if the GVI’s obligations to GERS spanned decades and are “contin uing,” 3 V.I.C. § 734, the‐ 40- “event” of any single under-con tribution was complete—and the delinquency incurred—once th e applicable time after a payroll period passed without the GVI contributing the full amount required by the contributi on rate in effect for that particular period.

Second, though our retroactiv ity analysis is “guided by
considerations” of “reasonabl e reliance” and “settled expectations,” Atkinson , 479 F.3d at 231, the GVI’s lack of contemporaneous knowledge of the unde r-contributions—and thus its lack of actual reliance on the prior state of the law—does not
remove the taint. As we stated in Atkinson , “[i]mpermissible retroactivity . . . does not requi re that those affected by the change in law have relied on th e prior state of the law.” Id. at 229 (citation omitted). And consider Landgraf . There, the Supreme Court “did not base its decision on the specific conduct of Landgraf’s employer or on any reliance that either Landgraf or her employer may ha ve had on the state of the
law.” Id. at 228 (citing Landgraf , 511 U.S. at 282–84). Rather, the Court “made a general analysis of the impact of the amendment” and found “retroactivity improper because the amendment instituted a legal change th at attached a new legal burden to the proscribed conduct.” Id. Likewise, in Hughes Aircraft
Co. v. Schumer , 520 U.S. 939 (1997), “[i]t was the new legal burden imposed on events past, rather than the reliance on the former law by the person affected, which was the basis for holding” that the amendment at issue should not have been applied retroactively. Atkinson , 479 F.3d at 228–29 (citing
Schumer , 520 U.S. at 943–45, 948). The GVI’s lack of reliancemight have colored the District Court’s application of the statutes, but it is the new legal burden attached to GERS’s past conduct that is dispositive.‐ 41- Finally, GERS contends that applying the statutes only prospectively would frustrate thei r remedial purpose. But that is “frequently . . . true” yet “notsufficient to rebut the presumption against retroactivity.” Landgraf , 511 U.S. at 285. Here, the text of the statutes sugges ts no remedial purpose—and the parties agree that there is no rele vant legislative history. Without more, the fact that, before the statutes’ enactment in 2005, GERS had unsuccessfully sued the GVI for under-contributing to a discrete early retirement incentive program does not suggest that the Legislature viewed the unavailability of interest and fees on all delinquent contri butions as “failing [the Retirement Code’s] purpose.” Cf. Silverlight v. Huggins , 488 F.2d 107, 108–10 (3d Cir. 1973) (holdi ng that statute waiving Virgin Islands tort immunity, after prior practice of passing special waiver legislation on individu al basis was held unconstitutional, applied retroactively to ca uses of action accruing beforeits enactment given “sincere[] concern[] that . . . damaged citizens not remain uncompensated” and “reasons given for the introduction of the bill”). And th e facts belie GERS’s assertion at oral argument that the GVI passed the 2005 statutes to remedy GERS’s lost investment in come on then-existing § 718(g)
deficiencies. Neither GERS nor the GVI knew of missing fixed-percentage contributions until 2012, seven years later. 22

Absent a clear statement of re troactive application in the statutes’ text or discernible expr ess legislative intent to apply them retroactively, they cannot impose interest and penalties
on contributions that the GVI missed before their effective

22 The consent judgment lacks any suggestion that the GVI agreed to subject itself to retroa ctive operation of a statute that would otherwise only a pply prospectively.‐ 42- date. We will vacate that portion of the District Court’s judgment awarding $43.1 million to GERS in interest and fees for the 1991–2009 period, and remand with instructions to reduce those enhancements accordingly. 23

3. GERS’s action was timely. Finally, the GVI argues that the vast majority of its under-contributions are not subject
to interest or fees because the payments were made outside the two-year statute of limitations ap plicable to an “action upon a statute for a forfeiture or penalty .” 5 V.I.C. § 31(5)(B). TheGVI also maintains that GERS is barred by laches from recovering the enhancements awarded by the District Court. We are unpersuaded and conclude that GERS’s recovery of interest and fees is timely. Even were we to disagree with the decisions of other Circuits holding that enforcement of consent decrees is subject only to equitable defenses, see, e.g. , Bergmann , 665 F.3d at 683–84; Brennan , 352 F.3d at 62–63; see also Cook

, 192 F.3d at 695, and even assuming GERS’s enforcement motions are subject to statutes of limitations, 24 the applicable limitations period would not bar GERS’s recovery.

23 In the set of calculations per tinent to the District Court’s $13.9 million award of princi pal for the 1991–2009 period, RSM figured the total amount ofinterest and fees for undercontributions on or after Nove mber 2, 2005 at $6,804,260: $5,542,163 in delinquency fees an d $1,262,096 in interest.

24 The Virgin Islands’ limitations periods apply to the “[t]ime for commencement” of new actions. 5 V.I.C. § 31 (“Civil actions shall only be commenced within the periods prescribed below.”). GERS’s enforcemen t motions did not commence a
new action but were filed in an existing one.‐ 43- Contrary to the GVI’s position, the award of interest and
fees to GERS—both in form an d substance—did not stem from an action “upon a statute for a forfeiture or penalty,” but motions to enforce “a judgment or decree of any court of the
United States . . . or Territo ry.” 5 V.I.C. § 31(1)(B), (5)(B). So if any limitations period a pplies, it would be the 20-year
statute of limitations discussed above rather than the two-year
statute of limitations that the GVI invokes. Id. Just as GERS’s proceedings to enforce the cons ent judgment against the GVI’s
under-contributions discovered in 2012 would be timely under the 20-year statute of limitations, so too its recovery of interest
and fees on those deficiencies.

Nor does laches bar GERS’s recovery here, though the District Court may have short-ci rcuited some of the analysis by concluding that GERS is a “s overeign” immune from laches.
JA30–35. We are not convinced that GERS is entitled to sovereign status and, for the reasons set forth below, conclude that
the GVI’s laches defense neve rtheless fails on the merits.

A creature of statute, GERS was established as an “independent and separate agency ” of the GVI with the “powers and privileges of a corporation.” 3 V.I.C. §§ 715(a),701(c). But unlike “all other semi-autonomous instrumentalities” of the GVI, the V.I. Legislat ure failed to recognize GERS as a tax-exempt entity when the system wa s created. V.I. 26th Legis., Bill No. 26-0071, Bill Su mmary, Section 1. Hence the provision in the 2005 amendments to the Retirement Act granting tax-exempt status to GERS. See 3 V.I.C. § 701(f). Endowed by statute with corporate powers and privileges, and taxed as a corporation rather than treated as an exempt government agency, GERS at its incep tion lacked some of the hallmarks of a sovereign government unit.‐ 44- Likewise, endowing a governme nt agency wi th the right to “sue and be sued” is persuasi ve evidence that the Legislature waived the agency’s immunity from timeliness defenses such
as laches and the statute of limitations. 25 See, e.g.

, U.S.V.I. Econ. Dev. Auth. v. Hypolite , No. ST-16-CV-268, 2019 WL 451370, at *3 (V.I. Super. Ct. Jan. 28, 2019) (collecting Virgin Islands cases). This the Legisl ature did, granting the GERS board the power to “sue and be sued” in the GERS name and requiring that GERS assets be held in its own name and segregated from those of the GVI. 3 V.I.C. §§ 701(c), 715(b)(6). Territorial courts have held that a semi-autonomous agency chartered as a “public corpora tion,” with its own assets and legal existence, that could “sue and be sued” lacked sovereign immunity from the statute of limitations. Hypolite , 2019 WL 451370, at *3. That conclusi on may obtain for timeliness defenses involving GERS as well.

25 Courts analyze immunity from the statute of limitations in tandem with immunity from equitable timeliness defenses,
such as laches. See, e.g.

, Guar. Tr. Co. of N.Y. v. United States, 304 U.S. 126, 132 (1938) (d iscussing purpose of exempting sovereigns from defense of laches and operation of statutes of limitations); Dole v. Local 427, Int’l Union of Elec., Radio & Mach. Workers, AFL-CIO , 894 F.2d 607, 612 (3d Cir. 1990); In re Hooper’s Estate , 359 F.2d 569, 578 (3d Cir. 1966) (“[T]he general principle that cl aims of the sovereign are not subject to the defenses of lach es and the statute of limitations, is applicable to the Territory [of the Virgin Islands], unless expressly waived, and is implied in all its enactments.” (citing Bd. of Cnty. Comm’rs v. United States , 308 U.S. 343, 351 (1939))).‐ 45- What’s more, Virgin Islands law suggests that “public corporations” generally, and GERS specifically, are subject to
certain statutes of limitations—s omething inconsistent with the recognized exclusion of sovere igns from timeliness defenses where they sue in their own name or for their constituents’ benefit. See, e.g.

, Hooper’s Estate , 359 F.2d at 578 (“[I]mmunity is based upon the public policy of protecting the citizens from damage to or loss of their pu blic rights and property through the negligence of public officers.” (citing Guar. Trust Co. of

N.Y. , 304 U.S. at 132)). For ex ample, ordinary limitations periods “shall apply to actions brought in the name of any public corporation in the Virgin Islands, or for its benefit, in the same manner as to actions by private parties.” 5 V.I.C. § 34 (emphasis added). And a provision of the Retirement Code suspends operation of the stat ute of limitations as against GERS for certain obligations. See 3 V.I.C. § 740 (“Notwithstanding title 5 Virgin Islands Code, chapter 3, any payment due the retirement system for se rvices, repayment of loans or mortgages, or for the repayment of any amounts due to error oroverpayment are not extinguished by the statute of limitations . . . .”). Such a carv e-out suggests that GERS may otherwise remain subject to statutes of limitations and not constitute a “sovereign” immune from timeliness defenses.

We do not decide whether GERS is a private, public, or quasi-public corporation or, for that matter, whether its status
renders it immune from laches. All we decide in this regard is that GERS’s immunity is too dub ious a basis for rejecting the GVI’s argument. That said, th e GVI’s laches argument fails on the merits. A party assertin g laches as a defense must establish (1) an inexcusable de lay in bringing the action and (2) prejudice. See, e.g.

, U.S. Fire Ins. Co. v. Asbestospray, Inc.

, 182 F.3d 201, 208 (3d Cir. 1999). The crux of the GVI’s case‐ 46- for laches is that GERS dela yed too long “in seeking delinquency fees and interest,” wh ich prejudiced the GVI because the expert had “difficulty in locating and making use of old records and data entries.” Appe llants’ Br. 54. Neither assertion holds water.

First, GERS’s delay in br inging the enforcement proceedings that led to the award ofinterest and fees was excusable. After suing the GVI in 1981 and obtaining the consent judgment in 1984, GE RS was in court to modify it in 1994. Then, in 2001, GERS sued the GVI for under-contributing to a separate early retirement incentive program. GERS appealed dismissal of that suit in 2005, a nd we affirmed for lack of ripeness because it was too soon to say that “GERS members have been denied, or are about to be denied retirement benefits.”
Turnbull , 134 F. App’x at 501. Having pursued its rights in court for decades, and following this defeat, GERS might have reasonably been wary of institu ting further litigation when in 2012 it discovered the GVI’s under-contributions. Instead, it waited to again sue the GVI until the pension system was just a few years from the brink. And in the interim, GERS tried to work with the Virgin Islands governor and the Legislature on pension funding solutions, even proposing remedial legislation. 26 The length of the delay in absolute terms was fairly

26 The GVI maintains that we cannot consider facts aboutGERS’s out-of-court efforts because they lie outside the record. But many of them can be found in this case’s extensive record, and those that cannot are appropriate for judicial notice. See, e.g.

, Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Mgmt. L.P. , 435 F.3d 396, 401 & n.15 (3d Cir. 2006) (judicially noticing a New York Times article on content of settlement); United States v. Pozsgai , 999 F.2d 719, 731 (3d‐ 47- modest, especially given the Virgin Islands’ 20-year statute of
limitations on enforcement of fede ral-court judgments and, as further context, the territory’s si x-year statute of limitations on
actions to recover under a contra ct or “upon a liability created by statute.” 5 V.I.C. § 31(1)(B), (3)(A)–(B). As noted above, GERS waited four years afte r discovering the missing fixedpercentage contributions to launc h the proceedings that yielded
the District Court’s interest and fee award. See, e.g.

, Evergreen Safety Council v. RSA Network Inc. , 697 F.3d 1221, 1226 (9th Cir. 2012) (noting that laches cl ock starts “when the plaintiff knew (or should have known) ofthe allegedly infringing conduct” and stops when “the lawsu it in which the defendant seeks
to invoke the laches defense” is begun). That’s well within the
realm of reasonable delay, as shown by Marshak v. Treadwell

, 595 F.3d 478 (3d Cir. 2009). Th ere, we held that it was not inordinate delay to wait five year s after entry of a judgment or injunction to initiate contempt proceedings. See id. at 496–97 (distinguishing Univ. of Pitt. v. Champion Prods., Inc. , 686 F.2d 1040 (3d Cir. 1982), where plaintiff waited 50 years to sue and there was no previously imposed injunction).

Second, the GVI’s prejudice argument lacks the necessary predicate showings. Th e GVI appears to claim that GERS’s delay exacerbated the la cunae in the pr e-2010 records,
which lie at the heart of the GVI’s unsuccessful challenge to RSM’s methodology. But the GVI does not explain how the
state of those records would ha ve benefitted had GERS sued nearer to 2012. In fact, acco rding to RSM, the unavailability of detailed pre-2010 data was ch iefly attributable to the GVI’s institution of new payr oll software at the end of 2009 without migrating the historical record s or later performing mainteCir. 1993) (appellate court may ta ke judicial notice of matter not before district court).‐ 48- nance on the decommissioned serve r. Even if records somehow would have been more robu st had GERS sued earlier, any prejudice was shared by both pa rties. RSM did not structure its methodology with a thumb on the scale in favor of GERS because of evidentiary gaps. It examined the existing records provided by both parties and, with 95 percent confidence,
calculated an interval into which the GVI’s 1991–2009 undercontributions fell. Nor did the District Court, in adopting the statistical midpoint of that range, punish the GVI for having incomplete records. In argui ng laches below, the GVI articulated no cognizable prejudice a ttributable to the passage of
decades since entry of the consent judgment. Its argument here
founders on even sha llower shoals.

Finally, even if the requisites for laches were met, we would balk at applyi ng the doctrine to bar GERS’s recovery of interest and fees. To begin wi th, for many months after GERS began these proceedings in 2016, the GVI intentionally withheld from GERS all of its em ployees’, and its own, fixedpercentage contributions. Th e GVI has claimed only that it “fell behind” due to unspecified “exigent circumstances.” 27Appellants’ Reply Br. 12. But the record reveals nothing exigent that would sufficiently excu se this conduct. On the contrary, the GVI’s Commissioner of Finance testified that these

27 The parties have attributed mu ch of the interre gna in the District Court proceedings to the damage wrought by Hurricane Irma and Hurricane Maria, both ofwhich occurred in September 2017. But the hurricanes cannot excuse the GVI’s misconduct; the chronology doesn’t fit. The GVI bega n withholding fixed-percentage contributions from GERS beginning in late
2016 and for months thereafte r. And GERS brought its emergency enforcement motion as to these withheld funds in March

2017.‐ 49- contributions were intentionall y withheld because of garden variety capital concerns that le d the GVI to de-prioritize its commitments to GERS—cash flow problems he could scarcely differentiate from those faced by the GVI afterit resumed contributions. Unconvince d, the District Court held that the GVI’s
conduct breached the consent judgment, and the GVI ultimately handed over some $3 6 million in principal and
enhancements for these withheld contributions. “Any willful act concerning the cause of actio n which rightfully can be said to transgress equitable standards of conduct is sufficient cause for” a court to “refus[e] to aid the unclean litigant.” Monsanto
Co. v. Rohm & Haas Co. , 456 F.2d 592, 598 (3d Cir. 1972). The GVI can hardly invoke l aches now after intentionally breaching a court order, renderi ng its hands unclean with respect to part of GERS’s action.

Nor need we apply the equ itable remedy of laches if doing so would undermine the p ublic’s interests in resolution
of the affected claim. See, e.g.

, Virginian Ry. v. Sys.
Federation No. 40 , 300 U.S. 515, 550 (1937) (“Courts of equity may, and frequently do, go much farther both to give
and withhold relief in furtheran ce of the public interest than they are accustomed to go when only private interests are involved.” (citations omitted)); Md.-Nat’l Cap ital Park & Planning Comm’n v. U.S. Postal Serv. , 487 F.2d 1029, 1042 (D.C. Cir. 1973) (“Equitable re medies depend not only on a determination of legal rights an d wrongs, but on such matters as laches, good (or bad) faith, and most important an appraisal of the public interest.” (emphasi s added) (citation omitted)). The economic health of the Virg in Islands rests to a large degree on the soundness of its pub lic-pension system. It cannot be over-emphasized that the central government is the Islands’ largest employer. GERS repres ents about 30 percent of the‐ 50- Islands’ gross domestic product. It “covers approximately 20% of the entire population of the Virgin Islands.” JA3958–

59. At oral argument, GERS estimat ed that about a third of the Islands’ population contributes to GERS or depends on it for income. The system’s receipt of tens of millions of dollars in interest and fees is of the high est public importance. We would decline to resolve the weighty issue of GERS’s entitlement to those funds on grounds of laches even if the defense would otherwise seem to apply.

We therefore conclude that the GVI’s timeliness defenses do not bar any compon ent of the District Court’s
award of interest and fees to GERS.

* * *

The consent judgment and ap plicable law require mathematical compliance, so the GVI’ s failures to contribute whatwas required by statutorily fixed percentages, even if inadvertent, breached the consent judgment . In proceedings that firstcentered on the GVI’s failure to remit fixed-percentage contributions beginning in late 2016, th e District Court later widened the lens—assisted by an appoint ed expert—and found a breach reaching back as far as 1991, when the GVI began shorting the percentage contributions to wh ich GERS was entitled. We will
not disturb that a pproach because the Court’s factbound conclusion about the extent of th e asserted breaches was not clearly erroneous and, at all ev ents, because GERS’s original pleadings and allegations in its enforcement motions may be deemed amended as necessary to encompass that recovery.
Neither the GVI’s direct contribu tions to GERS under separate funding legislation nor its comp liance with a recent process designed to reconcile contributions paid and owed for a retiring employee demands an offset. And we perceive no abuse of‐ 51- discretion in the District Court’ s reliance on the expert’s methodology for calculating the 1991–2009 under-contributions.
We will affirm the District C ourt’s award to GERS of $18.9 million in principal.

GERS brought enforcement proceedings within about four years of discovering thes e under-contributions, so its recovery of interest and fees on those debts is timely. In fact,
the District Court had no discre tion to waive the interest and fees. But nothing suggests that the Legislature intended to apply the late-arriving interest a nd fee statutes retroactively.
We will vacate the District C ourt’s award to GERS of $43.1
million in enhancements for th e GVI’s 1991–2009 arrears and remand for imposition of a lesse r award excluding interest and
fees on contribution deficiencies that the GVI incurred before
the statutes’ effective date. Be cause there are no retroactivity problems associated with the District Court’s award of $6.1
million in interest and fees fo r the 2010–2018 period, we will affirm that portion of the judgment.

IV. GERS’ S C ROSS -A PPEAL

Even a judgment of tens of millions of dollars only postpones GERS’s day of reckonin g by a matter of months. SoGERS appeals the District Court’s separate ruling that the consent judgment does not obligate the GVI to contribute billions to actuarially equalize GERS’s assets and its liabilities to pensioners. GERS derives this sweeping “ADEC” (short for “actuarially determined employ er contribution”) obligation from section 718(f), which re quires the GVI to “make contributions which together w ith the members’ contributions and the income of the system will be sufficient to provide adequate actuarially determin ed reserve for the annuities,
benefits and administration of th e System herein prescribed.”‐ 52- 3 V.I.C. § 718(f). GERS interprets this provision to require the
GVI to make GERS actuarial ly sound should the fixedpercentage contributions of th e GVI and its employees, along with GERS’s investment income, fail to do so. For its part, the GVI maintains that section 718( f) merely announces the Legislature’s intent that the fixe d-percentage contributions from both the GVI and its employees, as well as GERS’s investment income, together yield an actuari ally sound reserve for pension
benefits. 28 The District Court rejected GERS’s argument, reasoning that the employer contri butions contemplated by the consent judgment and section 718 trace to payroll periods— something irreconcilable with the proposed ADEC’s dependency on an annual actua rial accounting.

28 At a hearing before the Distri ct Court, counsel for the GVI conceded that “[t]here is an obligation to pay” the ADEC but argued that it is “an obligation that is not part of this consent decree.” JA1786–88 (“we’re not disputing that” the GVI is statutorily obligated “to make the actuarially determined employer contribution”). Counsel for the GVI sought to walk back this statement in subseq uent briefing and, before us,
maintains that there is no such ADEC obligation. We will not tether our prediction of how th e Virgin Islands Supreme Court
would decide this issue to coun sel’s (apparently inadvertent)
oral statement. It is not a bi nding “judicial admission” because whether the GVI is obligated unde r Virgin Islands law to make
the ADEC contribution to GERS is an issue of law, not a fact susceptible of admission. See, e.g.

, Swift & Co. v. Hocking Valley Ry. , 243 U.S. 281, 289–90 (1916) (putative admissions about “legal effect” are “inoperative”); accord New
Amsterdam Cas. Co. v. Waller , 323 F.2d 20, 24 (4th Cir. 1963),
cert. denied , 376 U.S. 963 (1964).‐ 53- We conclude that the Virg in Islands Supreme Court
would refuse to read GERS’s proffered ADEC requirement into section 718(f). The text of the statute and GERS’s cited authorities do not support imposing an obligation solely on the GVI to fund GERS to the point of actuarial soundness. And although there is scarce legisl ative history relevant to the meaning of the provision, testim ony of GERS representatives to the Legislature reveals th at the GVI’s employer contributions under section 718 have be en understood for decades as limited to fixed percentages of employee compensation. The statutes are best read to requ ire that the fixed-percentage contributions of employees an d employers be calibrated to account for the changing actuarial needs of the system. But those same statutes do not provide a mechanism for keeping GERS actuarially funded if that fixed-rate funding structure comes up short—whether because of proliferating unfunded legislative mandates, GERS’s own mismanagement, flawed actuarial projections, or the like. 29 We will therefore affirm the District Court’s judgment on this issue.

29 In dissent, our colleague attributes to us a reading of section 718(f) that “preclude[s] what Section 718 otherwise requires” and “bak[es] a funding shortfall into the statute.” Dissenting Op. at 18. We have trouble unde rstanding the recipe. To begin with, our dissenting colleague re cognizes, as do we, that section 718(g) “has never had a [] ra te increase cap” comparable to that on employee contributions. Dissenting Op. at 23. So
his assertion that our readi ng of section 718 assumes the Legislature’s “self-sabotage” in erecting “a hard-cappedcontribution system,” Dissenting Op. at 18, does not even survive to the end of the dissentin g opinion. At all events, the Legislature’s choice of an actuarially calibrated fixed-‐ 54- A. GERS’s Textual Arguments

GERS’s central statutory argument for imposing the ADEC obligation on th e GVI is that not doing so would render section 718(f) superfluous. If a ll section 718(f) does, GERS protests, is announce the Legisl ature’s sanguine intention that the schedule of percentages suffi ce to fund the system, then section 718(f) has no independen t content. But GERS never explains why it is superfluous, pa rticularly given the statute’s amendment history, to interpret section 718(f) as requiring that the employer contribution percenta ges first spelled out in subsection (g) in 1968 not be fixe d but dynamic over time in proportion to the evolving actuarial needs of the system. It may well be that those percentages have notbeen accurately calibrated to the actuarial needs of the system, for wh atever reason, but that provides no justifica tion for a supervening ADEC obligation that would render supe rfluous the statute’s percentage contribution mechanism.

percentage structure to meet the system’s evolving needs does

not ensure a shortfall. The Retirement Code has often been amended to, for example, incr ease the contribution rates, change how those rates are set, and allocate responsibility for funding various pension entitlement s—such as the costs of the special early retirement incentiv e program and the costs of administering the system, both of which are borne by the GVI. That fixed-percentage c ontributions may well have been meeting the system’s needs until the 1990s makes the charge of “self-sabotage” sound a bit overstated. See Dissenting Op. at 18. And, of course, GERS always had—indeed, has availed itself of—recourse to separate le gislation to attempt to address underfunding, such as the $7 million lump-sum annual payments from the GVI that it secured. See supra Section III.A.3.‐ 55- To begin with, saddling the GVI alone with the obligation to fund GERS to the point of actuarial soundness is, at best,
inconsistent with the text of s ection 718. And, at worst, imposing such an obligation contradict s the import of the statutory language. While section 718 (f) requires the “employer [to]
make contributions” that “w ill be sufficient to provide adequate actuarially determined reserve” for benefits to pensioners, the linkage between thos e phrases is “which together with the members’ [i.e., employees’] contributions and the income of the system.” 3 V.I.C . § 718(f). A more natural reading of section 718(f), then, is thatactuarial soundness is a function of all of the following: the GVI’s contributions asemployer, its employees’ contributions, and GERS’s investment income earned through prudent financial decisions. 30

30 Our dissenting colleague tries to wield the last antecedent rule against our reading of sec tion 718, applying the rule to section 718(f) to assert that “the limiting phrase ‘shall make contributions’ modifies the noun it immediately follows: ‘employer.’” Dissenting Op. at 19–2 2. To start, we doubt that
the last antecedent ru le even applies here . The purported limiting language is only precede d by one antecedent: “The employer shall make contributions.” That means there is no potential ambiguity for the interp retive canon to resolve, sincethe other candidates follow after that so-called limiting language. At all events, our point is simply that section 718(f) lacks the clarity needed to su pport a supervening obligation borne solely by the GVI to make GERS actuarially sound. So we look to, among other relate d provisions of the Retirement Code, an earlier subsection. Cf. New Prime Inc. v. Oliveira

, 139 S. Ct. 532, 538 (2019) (“ We’ve long stressed the significance of the statute’s sequencing.” (citations omitted)); Pac.‐ 56- Even if this provision—by nami ng the GVI first and then, in a subsidiary clause, mentioning employees and investment
income—could somehow be read to elevate the GVI’s responsibility, a preceding subsection v itiates that reading by equalizing the input of all stakeholders to the actuarial soundness of the system: “The various obligat ions of the System shall be
financed in accordance with act uarial reserve requirements from contributions by member s, contributions by the employer, interest income, and other income accruing to the System.” Id. § 718(a). Granted, the first sentence of subsection (a) may be redundant of subsection (f). But GERS seeks to give content to the la tter that would seemingly contradict the former. Such an approach finds no support in canons of statutory construction. See United States v. Bass , 404 U.S. 336, 344 (1971) (recognizing that “courts sh ould interpret a statute with

Emplrs. Ins. Co. v. Global Reinsurance Corp. of Am. , 693 F.3d 417, 430 (3d Cir. 2012) (highli ghting importance of “a bigpicture look at the [provision’s ] place in the [statute’s] overall structure,” with attention to how “structure” and “sequen[ce]” “create an obligation”). Sectio n 718(a) independently supplies that “[t]he various obligations of the System shall be financed
in accordance with actuarial rese rve requirements from contributions by members, contribu tions by the employer, interest income, and other income accruing to the System,” with the Board able to periodically “ actuarially determine the rate of contribution for members and employers of the System.” 3V.I.C. § 718(a) (emphasis added). There is no antecedent confusion here either, just the Legi slature’s clear indication that pension entitlements be financed according to actuarial reserve requirements from inputs by all stakeholders and that the GERS Board actuarially dete rmine both employee and employer contribution rates.‐ 57- an eye to the surrounding statut ory landscape an d an ear for harmonizing potentially discordant provisions”).

With the text of the statute offering little or no support for GERS’s position, we ask why, if the Legislature sought to impose on the GVI a supervening obligation to fund GERS to actuarial soundness, it would have promulgated (and routinelyamended) a detailed schedule of employee compensation percentages for the GVI to contribute? See 3 V.I.C. § 718(g).GERS tries to save the fixed-percentage scheme from superfluity by characterizing it as th e employer’s perennial default
and the ADEC as the conditiona l obligation, triggered only when the fixed percentages unde rserve the system. Set aside the reality that the so-called co nditional would have swallowed
the default in each of the last 30-odd years—and thus that GERS’s reading, like the GVI’s, still casts the Legislature as Pollyanna. At bottom, GERS’s conception conflicts with the statute’s history. Recall that the 1959 legislation creating GERS established a fixed-perc entage employee contribution but, though using similar actuari al reserve language, did not attach a percentage to the employer’s contribution. From the beginning, “ [t]he amount of contri butions by the employer for the various purposes of the system shall be determined by applying a percentage rate to the aggregate compensation of the members for each regular payr oll period.” Act of June 24, 1959, No. 479, § 718, 1959 V .I. Sess. Laws 92, 111 (emphases added). Unsurprisingly, the Legislature amended the statute to announce just such a schedule of percentages that the GVI would need to contribute as empl oyer. Act of Feb. 8, 1968, No. 2098, § 718(g), 1968 V.I. Se ss. Laws, Pt. I, 9, 9 (defining first employer contribution window as “pay periods starting: before July 1, 1968”). The hist orical progression suggests that the Legislature enacted the fixe d-percentage employer contri-‐ 58- butions to instantiate the act uarial soundness requirement. 31 Nothing suggests that it ever sou ght to upend this consistent

structure sub silentio by imposing a second, separate ADEC obligation.

GERS next argues that the consent judgment and, by implication, the Legislature could have used words such as
“fixed” if it wished to cabin the employer’s obligation to fixedpercentage contributions. But the establishment of a detailed schedule of percentages, withou t a comparable articulation of the GVI’s potentially limitless ma ndate to fully fund GERS, militates against inferring any legi slative intent to create the ADEC. Legislatures do not hi de elephants in mouseholes. Whitman v. Am. Trucking Assocs. , 531 U.S. 457, 468 (2001). There is no provision for “actuarially determined employer
contributions” in the statute—on ly sources of contributions that, “together,” must provide an “actuarially determined

reserve.” See, e.g.

, Bates v. United States , 522 U.S. 23, 29 (1997) (noting that courts “ordin arily resist reading words or
elements into a statute that do not appear on its face”). In view of subsection (f) and the surround ing statutory landscape, any

31 Unlike our dissenting colleague, we think it unremarkable that the Legislature struck from the 1968 version of section 718 the original provision that “the amount of contributions by the employer for the various purposes of the system shall be determined by applying a percentage rate to the a ggregate compensation of the members.” See Dissenting Op. at 26 & n.28. After all, in those same 1968 amendments, the Legislature for the first time fixed the employer’s percentage rate to be applied to employees’ aggr egate compensation. Retaining the vestigial clause may well have caused confusion, or even engendered litigation, about whet her there was an additional percentage that the GVI needed to contribute.‐ 59- suggestion that judges or legisl ators should have added clarifying language to exclude reading in an ADEC obligation
strikes us as fanciful.

To support postulating the ADEC, GERS points finally to section 718a, a provision en acted in 2006 to govern how GERS informs the GVI of needed appropriations. Section 718a provides for transmittal to the Legislature of the “actuarial valuation and appraisal” requi red by section 718, along with
an “itemized estimate of the am ounts necessary to be appropriated by the government to [GERS ].” 3 V.I.C. § 718a(a). But the lack of an ADEC obligatio n does not mean that “Section
718a would have no reason to ex ist in the first place.” CrossAppellant’s Reply Br. 8. Even to pay the biweekly contributions, the GVI needs to know approximately how much to appropriate annually for its GE RS commitments. And missing from the detailed enumeration of elements required to be included in the appropriations estimate, see 3 V.I.C. § 718a(a)– (e), is any clear call for the info rmation most critical to GERS’s proffered ADEC: its projected co mmitments to pensioners for the fiscal year. We think it natural for the Legislature—one year after authorizing the GE RS Board to determine and (apparently within limits) increa se contribution rates—to enact a statute requiring detailed sup port for GERS’s appropriations requests. All the more so give n our plain reading of section 718(f), under which all stakeholders must ensure the pension system’s actuarial soundness and rates must be calibrated to
actuarial needs.

B. GERS’s Authorities

Nor do the cases GERS cite s move the needle. Applying them here would assume the answer to the question presented: whether GERS’s proffered ADEC obligation flows‐ 60- from the text of section 718 or should somehow be implied
based on the relevant milieu.

Start with GERS’s leading case, Louisiana Municipal Association v. State, 893 So. 2d 809 (La. 2005). It dealt with statutes that unequivocally provide for both an employer contribution rate andan actuarially required employer contribution. See id. at 837–38; La. Stat. Ann. § 11:103(B)(1)–(3). By contrast, GERS’s appeal requires us to determine whether the GVI has any such second obliga tion independent of the fixedrate contributions set by statute.

GERS’s other authorities involve pension regimes under which employees have pe rcentage-based contribution obligations, but the contri butions of the employer ( i.e. , a state and its counties) are actuarially determined. 32 See, e.g.

, Hall v. Elected Officials’ Ret. Plan , 383 P.3d 1107, 1110–11 (Ariz.2016) (“The employee contribution rate was set by statute initially at 6%, with the employer being responsible for contributing the remaining amount nece ssary to fund a defined benefit upon retirement.” (citing Ariz. Rev. Stat. Ann. § 38-810(A) (1985))); Kaho‘ohanohano v. State , 162 P.3d 696, 706 (Haw.2007) (“Trustees engage an actuary to determine the employers’ normal cost and accrued liability contributions for each fiscal year.” (citations omitted)); Haw. Rev. Stat. Ann. § 88-45 (setting forth schedule of fixed-percentage contributions for employees); Bd. of Trustees of Town of Lake Park Firefighters’ Pension Plan v. Town of Lake Park , 966 So.2d 448, 450 (Fla. Dist. Ct. App. 2007) (noting “ma ndatory five percent contribu32 These cases, and most others that GERS relies on, decided constitutional challenges to legislation that effectively reduced the status quo of pens ion benefits. The pos ture of these cases
limits their relevance to GERS’s claim in this appeal.‐ 61- tion or payment by each firefi ghter” and “a mandatory payment by the municipality of ‘a sum e qual to the normal cost of and the amount required to fund an y actuarial deficiency shown by an actuarial valuation as provide d in part VII of chapter 112’” (quoting Fla. Stat. § 175.091(1)(g)); see also Wayne Cnty. Emps. Ret. Sys. v. Wayne Charter Cnty. , 859 N.W.2d 678, 679 (Mich. 2014) (“Each year, the county is required by Const. 1963 art. 9, § 24, to make an ‘annual required contribution’ (ARC). An annual actuarial valuation determines the ARC amount.” (citation omitted)); Mich. Compl. Laws Ann. § 38.1140m(1) (“The required em ployer contribution is the actuarially determined contribu tion amount.”). These cases do not help us reconcile the “together” clause of section 718(f)—
not to mention the first sent ence of section 718(a)—with GERS’s argument that, in fact, the actuarial funding responsibility lies solely with the GVI. 33

Still other cases relate to state statutes that explicitly place the obligation on the employe r to make up any shortfall. See, e.g.

, Booth v. Sims , 456 S.E.2d 167 (W. Va. 1994); W. Va. Code § 5-10-31(b) (“[T]he par ticipating public employers’

33 The statutes at issue in on e case that GERS invokes, Hall

, 383 P.3d at 1110–11, arguably support our plain reading of
section 718 in which the fixed- percentage contribution rates
are themselves intended to be calibrated for actuarial soundness. See Ariz. Rev. Stat. Ann. § 38-810(C) (“[E]ach employer
shall make contributions on a level percent of compensation basis for all employees . . . suffi cient under the actuarial valuation to meet both the normal co st plus the actuarially determined amount required to amortize the unfunded accrued liability over a closed period . . . that is established by the board taking into account the recomme ndation of the plan’s actuary . . . .”).‐ 62- contributions . . . shall be a percent of the members’ total annual compensation . . . . e qual to an amount which, if paid annually by the participating public employers, will be sufficient to provide for the total normal cost of the benefits expected to become payable to all members and to amortize any unfunded liability found by application of the actuarial funding method [.]” (emphasis added)). And ERISA’s “defined benefit plan” addresses a stat utorily defined “asset pool” in which “the employer typically be ars the entire investment risk and . . . must cover any underfund ing as a result of a shortfall that may occur from the plan’s investments.” Hughes Aircraft
Co. v. Jacobson , 525 U.S. 432, 439–40 (1999).

At best, the cases that GERS relies on take us no closer to answering whether section 718(f) obligates the GVI to fund
GERS to actuarial soundness. In fact, the specificity with which the regimes addressed in those cases articulate an employer’s actuarially determined contribution or shortfallliability renders problematic the less concrete language in section 718(f).

C. The Parties’ Historical Understanding

Though there is no formal le gislative history contemporaneous with the 1959 or 1968 laws enacting and amending the Retirement Code, subsequent te stimony of GERS representatives to the Legislature underm ines GERS’s argument for the ADEC. In an October 8, 1997 meeting of the Committee on Government Operations about a bill on allocating GERS’s administrative expense, a repres entative of GERS testified to the Legislature that:

[W]hat would happen in th e future is that based on our requirement in the statute that the funding‐ 63- of the system be computed on the actuarial reserve basis, we would then need to come back to the Legislature and report our latest findings in term[s] of the actuarial report and recommend that some adjustment be made in the employer
contribution and/or the employee contribution

. That is basically the only way that the system can begin to address the underfunding . . . . [T]he latest actuarial evaluation . . . determined that an additional contribution totaling five—approximately, five and-a-half percent would be needed
to be added to the curre nt contribution rate formula that we have in place.

Oct. 8, 1997 Gov’t Ops. Co mm. Hrg. Tr. 128:22–130:2 (emphases added). Increasing the fixed-percentage contributions of employees and employers was thus unde rstood as “the only way that the system can be gin to address” underfunding. 34

Eight years later, in a Sept ember 12, 2005 session of the same committee, then-Acting Administrator and CFO of GERS, Willis Todmann, testifie d at a hearing on the 2005 amendments to identify “specifi c areas . . . where the most
immediate action is needed.” Hr g. Tr. 12:12–14. Also present

34 Legislators appear to have shar ed this understanding. Trying to explain how GERS works, in the lead-up to passage of the 2005 bill, Senator Barshinger st ated during debate that “[y]ou pay in and interests [ sic ] is made on the money you give in, and
in fact the government thro ws in an additional percentage, and that creates a pool of money for you .” Sept. 26, 2005 Reg. Sess. (Part II) Hrg. Tr. 46: 2–6 (emphasis added).‐ 64- were a member of GERS’s Board of Trustees and the Assistant
GERS Administrator. Todm ann told the Committee:

The System requires full autonomy to incrementally set and adjust the c ontribution rates for the employer and employees as may be determined from the annual actuarial valuations . . . . The various obligations of the System . . . are required
to be financed in acco rdance with the actuarial reserve requirements from the contribution by members, contributions by the employer, interestincome, and other income accruing to the System, but in reality, this does not occur becauseexecutive and the Legislature randomly determine when contributions are to be increased and
how much those contributions should be. Whenever a shortfall occurs in the income from investments and the contributions from the employer and employee, the shortfall must be made up by the Plan Sponso r and member contributions to keep pace with the act uarial determinations for the payment of future pension obligations. . . . Although the statute does not provide for the proper actuarial funding of the System , theG.E.R.S. has repeatedly requested that the Legislature enact such corre ctive measures. . . . Theenabling Act failed to incorporate a proper funding plan because it was the intention of the Legislature that the income generated from the
investments and the c ontributions from the employer and employees will meet the funding
needs to pay the future pension benefit obligations. . . . [W]hat is most needed to financially‐ 65- reform the System is a co rrective funding plan to provide for the annual actuarial funding of the shortfall in the cost of the System. . . . The annual funding of the G.E.R.S. must be made a “statutory debt” through legislation

.

Sept. 12, 2005 Gov’t Ops. Comm. Hrg. Tr. 13:14–17, 14:3–18, 15:3–6, 16:3–8, 17:11–20 (empha ses added). Todmann’s testimony shows that GERS understood the following: (a) shortfalls “must be made up by” the GVI and employees—rather than just the GVI via a superv ening ADEC obliga tion; (b) the language in section 718(f) reflec ts the Legislature’s “intention”
that the fixed contribution rates would be adjusted to provide actuarial soundness; and (c) annu al, actuarially required funding of GERS was not a “statutory debt” of the GVI. As Todmann and others advocated, th e 2005 amendments recognized that “[t]he GERS Board of Truste es is the entity best suited to
determine the actuarial level and to fix appropriate contribution rates

, commensurate with the fu ture pension benefit obligations of the system .” V.I. 26th Legis., Bill No. 26-0071, Bill Summary, Section 14 (emphasis added); see 3 V.I.C. § 718(a).
But the 2005 bill neither alte red the scope of the GVI’s employer contributions in sec tion 718 nor cha nged any of the language that GERS now invoke s to charge the GVI with the ADEC obligation. Nor did its reforms address GERS’s “unfunded liability.” See generally Sept. 22, 2005 Hrg., V.I. Legislature, Committee on Rules and Judiciary.

Though legislative history contemporaneous with the public-pension system’s enactm ent is unavailable, hearing transcripts from the 1990s and 2000s show that both GERS and the Legislature understood the GVI’s employer contribution obligation as limited to fixed percentages of employee compensation. Motivating GERS’s appeals to the Legislature was‐ 66- a recognition that nothing imposed an additional statutory responsibility on the GVI to assu re actuarially sound funding
of GERS.

* * *

Approaching a fiscal cliff, GERS now protests that it will devolve into a pay-as-you-g o system by 2023 unless the
GVI funds it in accordance with the ADEC (or somehow
increases its current contribution rate of 20.5 percent to 68 percent). But these are fiscal po licy arguments we cannot entertain. If new pension legislati on is needed, as it may well be, such arguments should be made in an appeal to the Legislature. There is simply no compelling in terpretation of the statute or any extrinsic evidence that can support reading into Virgin Islands law GERS’s proffered AD EC obligation. We will thus
affirm the District Court’s en try of judgment to the GVI in GERS’s cross-appeal.

V. C ONCLUSION

Court battles, a consent judgment, settlement efforts, piecemeal legislative fixes, and entreaties to elected officials have animated GERS’s 40-year campaign to secure actuarial
soundness. But its successes have been qualified in large part by the limitations of the territori al law establishing the publicpension system. And so it goes in this appeal. Our ruling preserves an award of $18.9 million in principal, $6.1 million in interest and fees, and what will be additional millions in
enhancements for GERS. But we take off the table tens of millions of dollars in enhancements that were awarded to GERS under an unsupportable retroa ctive application of Virgin
Islands law. We have no doubt that GERS needs more— possibly billions more—to fend off insolvency. But as mem-‐ 67- bers of the Third Branch, we ca n neither write legislation nor levy taxes. And we are powerless to re-write imperfect but unambiguous statutes even if doi ng so would make them better
serve the needs of their intended beneficiaries.

Respecting the judiciary’s role in our Republic, we in turn expect the GVI to satisfy the judgment of the District

Court. 35 We are optimistic that all stakeholders will cooperate

35 Our colleague, concurring in part, takes care to emphasize that, in affirming in part the Ap ril 3, 2020 order of the District Court, we hold only “that the GV I is liable for the obligations in the Consent Judgment” and do not “order[] the GVI to disburse monies from the Virgin Is lands’ treasury.” Concurring Op. at 9. And who would disagr ee that the Legislature’s power of the purse is a pillar of the se paration of powers and that the judiciary must respect the Legi slature’s chosen mechanisms for making appropriations? See generally 33 V.I.C. §§ 3101 (prohibiting GVI officers and employees from entering into contracts and obligations on beha lf of GVI without an appropriation in advance “unless such contract or obligation is authorized by law”), 3106(a) (a llowing designated officers of the GVI to exempt certain funds from apportionment); Act of Sept. 29, 2020, No. 8365 (appropr iating $350,000 in fiscal year 2021 for judgments greater than $25,000). Yet we must bear
in mind that the GVI did not challenge the underlying order— the 1984 consent judgment—as inva lid for lack of an appropriation prior to appealing the District Court’s enforcement
order. See United States v. Gov’t of V.I. , 363 F.3d 276, 291– 92 (3d Cir. 2004) (affirming in pa rt enforcement order against GVI, despite argument that district court lacked power to enter underlying order obligating GVI to pay funds without an appropriation, because GVI neve r challenged propriety of underlying order).‐ 68- in good faith to avert the loom ing insolvency of GERS. No opinion of ours could make, or even make easier, the hard
choices that now confront the Un ited States Virgin Islands and
GERS. But our decision definitiv ely underscores the need for pension reform and adequate f unding legislation. Hopefully, greater accountability in the shared interests of protecting the deferred compensation of pensi oners and the economy of the Islands will carry the day.1 Government Employees Retirement System of the Virgin Islands v. Government of the Virgin Islands , Nos. 20-1749 &
20-1766

MATEY, Circuit Judge , concurring in part and dissenting in
part.

Much about this appeal is a familiar story. Like many of our institutions, public pensions date to the Roman Empire, arriving in our new Republic as a comforting promise to injured patriots figh ting in the Revolution. 1 Military pensions paved the way for civilian plans, with Massachusetts creating the first public employee re tirement system in 1911. 2 Other states joined the rush 3 and, soon enough, state and local

1 See Robert L. Clark, Lee A. Craig & Jack Wilson, A History of Public Sector Pensio ns in the United States, at 1–3 (2003). In 1832, Revolutionary War pensions extended to
those with at least six mo nths of wartime service. See Theodore J. Crackel, Revolutionary War Pension Records and Patterns of American Mobility, 1780–1830 , 16 Prologue 3 (Fall 1984), https://www.archives.gov/public ations/prologue/1984/fall/pen sion-mobility.html.

2 Clark et al., supra note 1, at 4.

3 There are currently over 3, 400 state and local pension systems in the United States, covering more than 27 million
members and beneficiaries. U. S. Gov’t Accountability Office, GAO-12-322, State and Local Government Pension Plans: Economic Downturn Spurs Effo rts to Address Costs and Sustainability 4 (2012), https://www.gao.gov/assets/590/589043.pdf.2 pensions became an entitle ment of public service. 4 But like many entitlements, pens ion promises prove hard to keep as lessons hard learned in antiquity 5 are ignored or, perhaps, wished away. 6 Pensions, of course, ar e guarantees of future income. Funding the benefits due tomorrow means taking prudent fiscal steps today, and every year, for as long as those generous sums remain due.

4 Clark et al., supra note 1, at 5. See also Terrance O’Reilly , A Public Pensions Ba ilout: Economics and Law , 48 U. Mich. J. L. Reform 183, 184 (2014) (“The traditional compensation for [a career as a public school teacher, police officer, or firefighter] include s . . . relatively comfortable retirement benefits.”).

5 See Clark et al., supra note 1, at 1 (observing that “the fall of the Roman republic and the rise of the empire were inextricably linked to the payment, or rather nonpayment, of military pensions”).

6 Thinking dominated by “o veroptimistic investment return assumptions” cannot meet the “the rising cost of state and local government employee retirement plans.” Andrew Biggs, Can States Afford Risi ng Public Pension Debts? , Forbes (Jul. 28, 2020), https://www.forbes.com/sites/ andrewbiggs/2020/07/28/canstates-afford-rising-public-pensi on-debts/?sh=697c744b97ee;
see also Mary Williams Walsh & Danny Hakim, Public Pensions Faulted for Be ts on Rosy Returns , N.Y. Times (May 27, 2012), https://www.nytimes.com/20 12/05/28/nyregi on/fragilecalculus-in-plans-to-fix-pension- systems.html (explaining the effects of overestimating pr ojected rates of return).3 But across the country, this has not happened. Economists glumly estimate that state pensions combined hold unfunded liabilities between $7 00 billion and $4.6 trillion. 7 Like a game of dominos, substantial benefits 8 connect to ever

7 T. Leigh Anenson, Alex Slabaugh & Karen Eilers Lahey, Reforming Public Pensions , 33 Yale L. & Pol’y Rev. 1, 5 (2014). Underfunding for publ ic school pensions alone tops $900 billion. Id

. 8 James Farrell and Daniel Shoag, Risky Choices: Simulating Public Funding St ress with Realistic Shocks

, Brookings Inst. (Nov. 30, 2017), https://www.brookings.edu/research/risky-choicessimulating-public-pension-fu nding-stress-with-realisticshocks/ (“Another shortcoming with the existing debate is that models used by both academ ics and practitioners generally assume that state and local go vernments will indeed fund the promises they make. In practic e, of course, governments often fail to come up with the money they ‘should’ contribute according to their funding la ws.”); Rachel Greszler, TooGood-to-be-True Pensions Face Massive Shortfall , Heritage Found. (May 30, 2017), https://www.heritage.org/taxe s/commentary/too-good-betrue-pensions-face-massive-shortf all (“For many Americans, defined benefit pensio ns have been a dream come true. After a few decades of labor, they’ve retir ed in their 50s or early 60s with a comfortable pension inco me for life. But that dream come true is too good to la st.”); Andrew G. Biggs, Not So Modest: Pension Benefits for Fu ll-Career State Government Employees , Am. Enter. Inst. 3 (Mar. 2014),https://www.aei.org/wp-content/uploads/2014/03/-aeieconomic-perspective-march-4 more funding from public coffers already spread too thin on a host of other priorities. 9 So even when hindsight highlights the obvious dilemma, it is nearly im possible to get back into the

2014_160053300510.pdf?x91208 (“[M]any state retirement systems produce what might be called ‘pension millionaires’— that is, employees who will re ceive more than $1 million in lifetime retirement benefits.”).

9 Naturally, the pull of pens ion costs necessarily “can squeeze out other important parts of state and local budgets.” Andrew G. Biggs, Have Public Employee Pensions Become More Generous, or less? , Forbes (Aug. 15, 2018), https://www.forbes.com/sites/a ndrewbiggs/2018/08/14/havepublic-employee-pensions -become-more-generous-orless/?sh=633e4df11e20.5 black. 10 Small wonder scholars have called the public pension crisis a “ticking time bomb.” 11

10 See Monahan, supra note 7, at 123 (“A plan that has
an unfunded lia bility must even tually make up that funding shortfall if it is to pay promis ed benefits. And the larger a plan’s unfunded liability the la rger its annually required contributions will be.”); O’Reilly, supra note 4, at 186 (“Once a pension plan exhausts its rese rves, it faces the same dilemma year after year simply to stay even: attempting to fund current
retiree benefits out of cash flow while still setting aside adequate funds for the accr uing benefits of current employees.”); see also O. Emre Ergungor, When States Default: Lessons from Law and History, 2017-16 Economic Commentary, at 1 (Fed. Reserve Bank of Cleveland, Oct. 2017), https://www.clevelandfed .org/newsroom-and-events /publications/economic-co mmentary/2017-economiccommentaries/ec-201716-pensions -when-states-default.aspx (“The dire state of public pens ions increases the likelihood that, at some point in the futu re, retirees may find themselves competing with other stakeholders for the same tax dollars in the appropriations process. B ondholders will also insist on being repaid, and residents will still need roads, sewers, water, and education.”).

11 Anenson et al., supra note 7, at 11 n.45. Other dire
forecasts warn of the “comin g pension implosion” resulting from pension plans that were “b uilt on a vision of corporate America where unchanging in dustries [had] lifetime employees” and established by laws that “are not only anachronistic, but unstable.” David John, Rea Hederman & Tim Kane, Are Pensions the Next Fiscal Crisis? , Heritage6 All this to say, the facts underlying this case are not unique. This is not a problem specific to the Virgin Islands and GERS. Some cite the aspirati onal qualities of these promises, questioning how strained gove rnmental budgets can bear
lavish subsidies for retirees. 12 Others blame the ballooning

Found. (June 7, 2005), http s://www.heritage.org/socialsecurity/report/are-pensions-the-next-fiscal-crisis. See also Erick M. Elder & Gary Wagner, Can Public Pensions Fulfill
Their Promises? , at 3 (George Mason Univ. Mercatus Ctr., Working Paper, Apr. 2015), https://www.mercatus.org/sys tem/files/Elder-PA-PublicPensions.pdf (referring to the pension funding situation in Pennsylvania as a “time bomb” ); William G. Gale and Aaron Krupkin, Financing State and Loca l Pension Obligations: Issues and Options , Brookings Inst., at 1 (Jul. 2016), https://www.bro okings.edu/wpcontent/uploads/2016/07/Financ ing-State-and-Local-PensionObligations-Gale-Krupkin-1.pdf (“Many states and municipalities are struggling to fund defined benefit pension plans for their employees. . . [A]lmost every state [has] implemented some combination of lower benefit accruals and higher employer or employee contributions.”). The coronavirus pandemic has exacerbated the public pension crisis. Mary Williams Walsh, Coronavirus is Making the
Public Pension Cr isis Even Worse , N.Y. Times (Apr. 2, 2020), https://www.nytimes.com/20 20/04/02/business/coronaviruspublic-pension.html.

12 In 2018, state and local pensions incurred new liabilities and servicing costs of $345 billion, while receiving only $151 billion of public funding. Andrew G. Biggs, Can States Afford Rising Public Pension Debts? , Forbes (Jul. 28,7 costs of all entitlements. 13 Several have reflected on how
elected officials choose to offer ever-greater benefits and then, “maddeningly, [] choose not to fund public pensions as they are required.” 14 But none have suggested an Article III court
can resolve the issue. Nor have any courts tried, until today.

2020), https://www.forbes.com/sites/ andrewbiggs/2020/07/28/canstates-afford-rising-public-pensi on-debts/?sh=4 e5c612897ee.

13 See Brian M. Riedl, Deficit Reduction Requires Major Entitlement Reform , Heritage Found. (May 18, 2011), https://www.heritage.org /budget-and-spending /commentary/deficit-reductio n-requires-major-entitlementreform (“Driven by entitlement co sts, the national debt is set to reach cataclysmic levels.”); Robert E. Moffit, Price rises every day without entitlement reform , Heritage Found. (June 14, 2006), https://www.her itage.org/health-carereform/commentary/price-rises-every-day-withoutentitlement-reform (observing th at we are in “a time when entitlement costs already are grow ing much more rapidly than the tax receipts that are supposed to pay for them”).

14 Paul M. Secunda, Litigating for the Fu ture of Public

Pensions , 2014 Mich. St. L. Re v. 1353, 1374 (2014); see also Frederick M. Hess & Juliet P. Squire, “But the Pension Fund

Was Just Sitting There. . .” The Politics of Teacher Retirement
Plans , 5:4 Education Finance and Po licy 587, 588 (MIT Press, 2010) (“For public pension fund s, including those that cover teachers, the primary safeguard is the self-discipline of public officials and the hope that they will not be unduly tempted by
short-term electoral consid erations and influential
constituencies. Given the state of public pension funds, these safeguards hardly seem adequate.”).8 I am skeptical. In one sense, the dispute unfolds like a common law contract problem, asking the Court to merely determine the best meaning of an agreement. Viewed through that lens, I agree with much of the Court’s reasoning in Part III.A holding the Consent Judgment obligates the GVI for outstanding contributions unde r Section 718(g). Likewise, I agree with the analysis in Part III.B reasoning that interest and penalties cannot be read in to the Consent Judgment retroactively. 15 Indeed, as a matter of in terpretation, I would go

15 I do not see a need to consult the lack of legislative history to resolve “whether the statutory text . . . manifests an intent” to apply retroactively. Landgraf v. USI Film Prods.

, 511 U.S. 244, 257 (19 94) (emphasis added); see also I.N.S. v. St. Cyr , 533 U.S. 289, 316 (2001) (“The standard for finding [ ] unambiguous direction” in the first Landgraf step “is a demanding one”), superseded by statute , REAL ID Act of 2005, Pub. L. No. 109–13, 119 Stat. 310, as recognized in
Nasrallah v. Barr , 140 S. Ct. 1693 (2020); Gordon v. Pete’s Auto Serv. of Denbigh, Inc. , 637 F.3d 454, 459 (4th Cir. 2011) (interpreting the “demanding” first Landgraf step as “requiring prescription that is truly expr ess and unequivocal”) (citing St. Cyr , 533 U.S. at 316) (internal citation omitted). I recognize
that when the statute is silent on retroactivity, courts have sometimes looked to legisla tive history. But “[w]hen the express terms of a statute give us one answer and extratextual considerations suggest anothe r, it’s no contest. Only the written word is the law, and all persons are entitled to its
benefit.” Bostock v. Clayton Cnty., Ga. , 140 S. Ct. 1731, 1737 (2020). As a result, “legislativ e history can never defeat unambiguous statutory text,” pa rticularly when it does not
exist. Id . at 1750; see also Arevalo v. Ashcroft , 344 F.3d 1, 129 further and conclude the Consent Judgment imposes additional obligations on the GVI under Title 3 V.I.C. § 718(f), because GVI’s responsibility to pay “employer contributions” in Section 718 includes the “empl oyer contributions” required by Section 718(f). If that were the sc ope of our decision, if this were just two parties asking a court to figure out who owes what, few would find the opinion today noteworthy.

But we are writing on a far bigger stage, one that, I fear, will rightly draw the attention of governors and the governed across the country. If they interpret our d ecision to mean that the Article III judicial power comprehends a monetary award to pay a general statutory obl igation, whether or not the separate sovereign has appropriated funds, a new and dangerous chapter in the pension wars will open.

So I write separately to emphasize the narrower scope of the Court’s holding affirming only that the GVI is liable for the obligations in the Consent Judgment. But in doing so, the Court is not ordering the GVI to disburse monies from the Virgin Islands’ treasury. And that is because the federal courts almost always lack that auth ority. We stand, it seems, dangerously close to the Constitu tional precipice. The parties
need not return and ask us to step off.

I. T HE C ONSENT J UDGMENT

(1st Cir. 2003) (“At most, legislat ive histories of this type tell us that while Congress may have thought retroactivity to be an important topic, it could not mu ster a clear consensus on the subject.”) (citing Rivers v. Roadway Exp., Inc. , 511 U.S. 298, 309 (1994)). For that reason, I se e no need to note its absence
here.10 GERS’s cross-appeal requires examining the ordinary understandings of an agreement. I begin with the small dispute over the best reading of the Consent Judgment. And the principles guiding that anal ysis—defining the words using their common meaning when drafted—informs the larger dispute over the best reading of Article III. It is a puzzle with only two pieces, both turning on the same questions of interpretation.

A. The Consent Judgment En compasses Section 718(f)

Start with the consent judg ment, an instrument with
“attributes of both cont racts and injunctions.” E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec. , 950 F.3d 177, 192 (3d Cir. 2020). Sometimes a consent decree imposes a correction, coercing complianc e, handing out punishment, prohibiting future wrongs. That side of the coin matches the power of an injunction. Id. But “when a party seeks not to punish but to enforce the ot her party’s commitments,” like GERS here, the consent ju dgment “works more like a

contract.” Id. So the Consent Judgment “is to be construed basically as a contract,” United States v. ITT Cont’l Baking

Co. , 420 U.S. 223, 238 (1975), w ith traditional principles of interpretation informing the terms. Flemming ex rel. Estate of Flemming v. Air Sunshine, Inc. , 311 F.3d 282, 289 (3d Cir. 2002).

Interpretation of any text tu rns, of course, on the text.
Tamarind Resort Assocs. v. Gov’t of Virgin Islands , 138 F.3d 107, 110 (3d Cir. 1998) (“It is axiomatic that where the language of a contract is clear and unambiguous, it must be given its plain meaning.”) (citing Restatement (Second) of Contracts § 202(3)(a) (1981)); see also In re Diet Drugs (Phentermine/Fenfluramine/De xfenfluramine) Prod. Liab.11 Litig. , 706 F.3d 217, 223 (3d Cir. 2013) (“When the terms of a
contract are clear and unambi guous, its meaning must be determined from the four corners of the contract.” (internal citation and quotation marks omitted)). If needed, we can aid that effort by looking at documen ts “expressly incorporated in
the decree.” ITT Cont’l , 420 U.S. at 238. These principles lead me to conclude that the Consent Judgment includes the GVI’s obligations under Title 3 V.I.C. § 718(f), what GERS calls the “actuarially determined employ er contribution” or “ADEC.” Appellee’s Br. at 53.

Here is why. The Consent Judgment tells the GVI to timely pay “the total amount due of . . . employer contributions as defined in Title 3, Section 718.” JA113–14. Naturally, that includes all of Section 718, from (a) to (g). So if Section 718(f) is an “employer contribution,” the GVI pays that amount.
Section 718 does not e xplicitly spell out what is, or is not, an “employer contribution.” Indeed , that phrase does not appear anywhere in Section 718. But we have plenty of other help.

Section 718(a) explains who funds GERS: its members, the “employer,” and “interest income.” Section 718 also details what “contributions” the “empl oyer” makes. For example, Section 718(g) says the “emplo yer shall contribute” a fixed percentage of GVI employee salaries. Likewise, Section 718(k) says the “employer shall . . . contribute to the System” costs of “any special early retirement program.” 3 V.I.C. § 718(k) (1995). 16 All of which inform the best reading of the

16 As is often the case in a decades-old dispute, the locations of these provisions ha ve moved around. Codification of the quoted version of Secti on 718(k) occurred in 1994. Act12 similar wording in Section 71 8(f) that the “employer shall make contributions” to finance the fund’s actuarially
determined reserve.

Taken together, there is nothing in Section 718 suggesting that one particular subsection defines “employer contributions,” or that Secti on 718(f) does not. Or, as we have noted, the same words or phrases in different parts of the same statute have the same meaning unless there is “such variation in the connection in which the words are used as reasonably to
warrant the conclusion that th ey were employed in different parts of the act with different intent.” Cf. Official Comm. of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery , 330 F.3d 548, 559 (3 d Cir. 2003) (en banc) (quoting Atlantic Cleaners & Dyers, Inc. v. United States , 286 U.S. 427, 433 (1932)). The Cons ent Judgment reflects that structure, incorporating all of the “employer contributions . . . defined in Title 3, Section 718” a nd thus the “e mployer . . . contribution” in Section 718(f) as well as the “employer . . . contribut[ions]” in Section 718(g ). That excludes a reading that places Section 718(g), but not Section 718(f), into the Consent

Decree. See 11 Williston on Contracts § 30:25 (4th ed. 2020) (“When a writing refers to another document, that other document, or the portion to whic h reference is made, becomes constructively a part of the writing, and . . . [t]he incorporated

of Aug. 26, 1994, No. 6007, § 8(c), 1994 V.I. Sess. Laws 150, 158. A later reorganization moved this section into the current Section 718(j), 3 V.I.C. § 718(j ) (2021), and Section 718(k) now addresses the timing and prio ritization of the employer’s funding of early retirement programs. See V.I.C. § 718(k) (2021); Act of Nov. 2, 2005, No . 6794, § 14.4, 2005 V.I. Sess. Laws 380, 396.13 matter is to be interpreted as part of the writing.”); see also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 10 1 (2012) (stating general terms
“are to be accorded their full an d fair scope” and “are not to be arbitrarily limited”).

The District Court saw a flaw in this design. At the time of the Consent Judgment, the ADEC obligation flowed from
an annual calculation. See § 718(e) (1968). 17 In contrast, the Consent Judgment requires payments every pay period. That, the District Court held, makes an ADEC obligation under Section 718(f) impossible. But two obstacles hinder that reading. First, that is not what the Consent Judgment says. And we are not free to reorganize, re write, or restate the parties’ clearly expressed intentions.

Second, even if it did, that does not read out the obligation of Section 718(f) because nothing prevents a pro

rata ADEC payment every pay period after calculation. Indeed, that is the process used for all employer and employee
contributions. See 3 V.I.C. § 718(h) (1 968) (“[E]mployer and employee contributions shall be paid into the system each payroll period”), amended , Nov. 2, 2005, No. 6794, § 14.3, 2005 V.I. Sess. Laws 380, 3 97 (“[E]mployer and employee contributions must be paid to th e system within ten days after the closing of each payroll peri od.”); 3 V.I.C. § 718(h) (2021) (“[E]mployer and employee contri butions shall be paid to the System within ten working days after the pay date.”). In other words, even if we accept the Di strict Court’s premise that the

17 Section 718(e) currently requires a “bi-annual[]” computation. Act of Oct. 26, 20 15, No. 7802, § 2(f), 2015 V.I. Sess. Laws 147, 155; see 3 V.I.C. § 718(e) (2021).14 Consent Judgment only enco mpasses regular pay period obligations, that still includes the regular pro rata contributions under Section 718(f) each pay period.

B. Section 718(f) Obligates the GVI to Contribute the
ADEC

For these reasons, I read the Consent Judgment to include “employer co ntributions” required by Section 718(f), a conclusion the majority shares. We differ only in defining what Section 718(f) requires. Here agai n our task is interpretation, not invention. As always, we employ the “fundamental canon of statutory construction” requ iring that we “interpret the
words consistent with their ordi nary meaning” when enacted.
Wis. Cent. Ltd. v. United States , 138 S. Ct. 2067, 2070, 2074 (2018) (internal quot ation marks omitted); see also United
States v. Johnman , 948 F.3d 612, 617 (3 d Cir. 2020). “It is a focused inquiry and ‘[o]ur analysis begins and ends with the

text.’” United States v. Smukler , --- F.3d ----, No. 19-2151, 2021 WL 1056021, at *6 (3d Cir. 2021) (quoting Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania , 140 S. Ct. 2367, 2380 (2020)). We tackle the task of interpretation using our “toolkit” with “a ll the standard tools of interpretation” used to “carefully consider the text, structure, history, and purpose” of the statute. Kisor v. Wilkie , 139 S. Ct. 2400, 2414–15 (2019 ) (cleaned up). With th at aim, we seek not a perfect answer on meaning, fo r one does not exist, but to
“‘reach a conclusion about the best interpretation,’ thereby resolving any perceived ambiguity.” Shular v. United States

, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (quoting Kisor , 139 S. Ct. at 2448 (Kav anaugh, J., concurring in the judgment)). Using that inquiry, I believe the best meaning of Section 718(f) ob ligates a GVI contribution15 separate from its fixed-percentage obligations in Section 718(g) sufficient to fund an “actuarially determined” reserve. 18

The majority reaches for a different set of tools and, as a result, reads Section 718(f) to merely previe w the employer’s fixed percentage obligation in Section 718(g). An obligation, they write, to provide no more than “the fixed-percentage contributions of employees and employers to be calibrated to account for the changing actuarial needs of the system.” Maj. Op. at 53. But those conclusions do not flow from the text of the statute. Rather, they emerge first from what the statute does not say (based on language deleted in 1968), and second, the testimony of GERS representati ves in legislative hearings
decades after the statute’s enactm ent. Respectfully, I disagree with both that reasoning and result.

1. Section 718 Requires An Adequately Funded
Actuarial Reserve

Before explaining why, let me note our broad areas of agreement. For one, none dis pute that Section 718 requires
actuarial soundness. That is plain from Section 718(a) requiring that the “obligations of the System shall be financed
in accordance with actuarial re serve requirements[.]” 3 V.I.C. § 718(a). As both comm only and technically 19 understood when enacted, a pension plan with a “fully funded” “actuarial

18 To be sure, the question of what the statute requires is separate from whether this Court has the po wer to enforce such requirements, a question addressed below.

19 See Louisiana Pub. Se rv. Comm’n v. F.C.C. , 476 U.S. 355, 357 (1986) (explaining “the rule of construction that
technical terms of art should be interpreted by reference to the trade or industry to which they apply”).16 reserve” is one in which the “r eserve[’s] assets” have met the “actuarially determined oblig ation accrued.” Dorrance C. Bronson, Pension Plans – The Concept of Actuarial
Soundness , 20-1 J. of the Amer. Ass’n of Univ. Tchrs. of Ins. 36, 37 (Mar. 1953); see also Actuarially Sound Retirement System , Black’s Law Dictionary (11t h ed. 2019) (defined since 1947 as “[a] retirement plan th at contains sufficient funds to pay future obligations, as by receiving contributions from employees and the employer to be invested in accounts to pay future benefits”). 20 Using that meaning, Section 718(f) requires the “actuarially determined rese rve” to “provide . . . for the annuities and benefits” of the Sy stem. 3 V.I.C. § 718(f) (1968).
And the “actuarial reserve” cont emplated by Section 718 is a pool of assets sufficient to satisfy its liabilities to future retirees. In the parlance of privat e pensions, this is a “defined benefit” plan—a “general pool of assets” entitli ng beneficiaries to “a fixed periodic payment”—rather than a defined contribution plan in which “the employer’s contribution is

20 Accord Newton L. Bowers, Jr., An Approximation to the Distribution of Annuity Costs , 19 Transactions of Soc’y of Actuaries 295, 306 (1967) (defin ing a pension plan’s “actuarial reserve” as “the expected value of future annuity payments.”); James A. Graaskamp, Implications of Vested Benefits in
Private Pension Plans: Comment , 33 J. of Risk and Ins. 489, 493 (Sep. 1966) (describing “present actuarial reserve formulas” in pension plans as re quiring “pay[ing] both vested and unvested, earned and unearne d benefits”); Phelim Boyle & Mary Hardy, Guaranteed Annuity Options , 33 Astin Bulletin 125, 129 (2003) (describing the “traditional actuarial reserving method” as “set[ting] aside add itional capital to ensure that the liabilities under the guarantee will be covered with a high probability”).17 fixed and the employee receives wh atever level of benefits the amount contributed on his behalf will provide.” Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 44 0 (1999) (internal citations omitted).

So too, all agree that Se ction 718(f) demands that GERS’s “actuarially determined reserve” receive “adequate” funding. No mysterious mean ing here. Then, as now, the ordinary meaning of “adequ ate” in a quan titative context means “equal to what is required.” Adequate , Black’s Law Dictionary (4th ed. 1968); see also “adequate, adj.” OED
Online , Oxford University Press, March 2021, www.oed.com/view/Entry/2299 (l ast visited April 6, 2021) (“Fully satisfying what is required; quite sufficient, suitable, or acceptable in quality or quantity .”). In other words, Section 718(f)’s “adequate” modifier does not disturb what is
otherwise clear from Section 7 18: that a particular funding quantum must satisfy the Sy stem’s future outputs: the
members’ “annuities” and “benefits.” 21 Finally, we reach the
same conclusion that the fixe d-percentage calibrations in Section 718(b) and Section 71 8(g) have not, and will not, achieve actuarial soundness. They are not, in other words, adequate. As history and ma th both prove, when the “actuarially determined reserv e” exceeds the sum of those fixed-percentage contributions (plus income), the reserve cannot achieve “adequa[cy].” 3 V.I.C. § 718(f).

21 And, since 1998, administrative costs. See Act No. 5223, §§ 1–2, 1998 V.I. Sess. La ws 234, 234–35 (deleting then Section 718(i) requiring the GV I to fund the system’s administrative costs and folding that obligation into Section 718(f).)18 2. The GVI Must Ensure Adequacy

Here is where I depart from the majority. Accepting that (a) the System must fund an ac tuarially sound re serve, and (b) arithmetic renders that impossible from fixed-percentage contributions alone, then something must make up that difference. The majority calculat es differently, reading Section 718(f) to preclude what Sec tion 718 otherwise requires, thereby baking a funding shortfall into the statute. In a bit of self-sabotage, the argument goes , the Legislature really meant
to incentivize all to do more by creating a hard-capped contribution system regularly “ [re-]calibrated” to “account for the changing actuarial needs of the system.” Maj. Op. at 53. 22 And I admit, that seems like a good way to marshal the public and political pressure needed to turn aspirations into action. Pay as you go, or face a shortfa ll sure to shorten the terms of those tasked with finding needed funds. Except that is not what

22 The majority recognizes that the fixed-percentage contributions in Sections 718(b) & (g) “have not been accurately calibrated to the actuar ial needs of the system.” Maj. Op. at 54. So if the “actuaria lly determined reserve” exceeds the sum of those fixed-percentage contributions (plus interest),
the reserve cannot achieve “ade qua[cy].” 3 V.I.C. § 718(f). Even so, the majority assert s that Section 718 does not

“ ensure a shortfall” because th e statute can always be amended. Maj. Op. at n.29. That seems to summarize the problem. For to read a law to require, by design, other legislation to accomplish its objectiv e is “so startling” that it is unlikely to represent the best reading. City of Columbus v. Ours Garage & Wrecker Serv., Inc. , 536 U.S. 424, 449 n.4 (2002) (Scalia, J., dissenting).19 the statute says, a point, as we will see, the ma jority does not dispute.

Turn back to the text. As of the Consent Decree, Section 718(f) read:

The employer shall make contributions which together with the members’ contributions and the income of the system will be sufficient to provide adequate actuarially dete rmined reserve for the
annuities and benefits herein prescribed.

3 V.I.C. § 718(f) (1968). 23 As ordinarily understood, it is “the employer” who “shall” contribute what is needed for actuarial
soundness. That is b ecause the rule of last antecedent “provides that a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately
follows.” Lockhart v. United States , 136 S. Ct. 958, 962–63 (2016) (internal quotation marks omitted); see also Scalia & Garner, Reading Law 144. He re, the limiting phrase “shall
make contributions” modifies th e noun it immediately follows: “employer.” 3 V.I.C. § 718(f).

Section 718(b) confirms that reading, requiring that “[e]ach employee who is a me mber of the system shall contribute” a fixed percentage of compensation. 3 V.I.C. §

23 Later tweaks to this provision did not affect the operative language. See 3 V.I.C. §718(f) (2021) (now also requiring the “reserve” to cover the System’s “administration” costs); see Act No. 5223 §§ 1–2, 1998 V.I. Sess. Laws at 234–
35.20 718(b) (1968) 24 (emphasis added). Section 718(b)’s command phrase gives meaning to Sectio n 718(f)’s application of the “shall contribute” modifier to “employers” but not “members.”

See Madar v. United States Citiz enship & Immigration Servs.

, 918 F.3d 120, 123 (3d Cir. 2019) (“Under the interpretive

canon expressio unius est exclusio alterius , we presume that ‘[t]he expression of one thing implies the exclusion of others.’”) (quoting Scalia & Garner, Reading Law 107).

The majority agrees this is the natural way to read the text, but reasons that beca use Section 718(f)’s employer contributions occur “together with” employee contributions and the System’s income, and because Section 718(a) “equaliz[es] the input of all stakeholders to the actuarial soundness of the system,” Sec tion 718(f) must merely repeat Section 718(a) and preview Secti on 718(g). Maj. Op. at 55–56

& n.30. 25 Not so.

24 The legislature has amende d Section 718(b)’s fixedpercentage contribution provisi on from time to time, but not this obligating phrase. See 3 V.I.C. § 718(b) (2021) (“Each employee who is a member of the Government Employees Retirement System shall cont ribute a percentage of compensation” at the enumerated rate).

25 The majority argues th at the “structure” and “sequen[ce]” of Section 718 are best understood to mean Section 718(a) supplies Section 718(f)’s meaning. Maj. Op. at n.30, citing Pac. Emplrs. Ins. Co. v. Global Reins. Corp. of

Am. , 693 F.3d 417, 430 (3d Cir. 2012). I do not see how. Section 718(a) explains who funds the system; Sections 718(b)–(d) explain what the members contribute and how;21 First, Section 718(f) foreclos es that reading. Accepting the majority’s interpretati on that all three components— employer contributions, member contributions, and income— share Section 718(f)’s burden re quires applying “shall make contributions” to “words or ph rases more remote”—in this case, “members’ contributions and income from the system.” See Rule of the Last Antecedent

, Black’s Law Dictionary (11th ed. 2019). That is precisely what the rule of last antecedent counsels against. Id. ; see also Nearest-Reasonable-Referent

Canon , Black’s Law Dictionary (a “postpositive modifier” including “adverbial or adjec tival phrases” will “normally appl[y] only to the nearest reasonable referent”); Lockhart , 136 S. Ct. at 963 (declining to depa rt from the rule where it would

Section 718(e) requires the actuari al computation; and Sections 718(f)–(k) detail the amount and method of the GVI’s
contributions. See 3 V.I.C. § 718 (2021). If we can glean anything from “considering every provision of the [section] and how they fit together,” Pac. Emplrs. , 693 F.3d at 430, it is that Sections 718(a) and (f) play distinct roles in the statutory
scheme. The majority also reads th e modifications to Section 718(a) requiring the GERS Board to “actuarially determine the
rate of contribution for member s and employers,” 3 V.I.C. § 718(a) (2021), as a “clear indication” that actuarial funding comes only from the fixed percen tage contributions in Section 718(b) and (g). Maj. Op. at n.30. Of course, that language was not in Section 718(a) as adopted in the Consent Decree in 1984. Act of Feb. 8, 1968, No. 2098, § 1, 1968 V.I. Sess. Laws, Pt. I, 9–10. And it does not change the fact that when those fixed percentage contributions fall shor t “for whatever reason,” Maj. Op. at 54, the system suffers a funding gap that only Section 718(f) can fill.22 be “a heavy lift to carry the mo difier” across entire preceding list of nouns). Nor does the result—compelling “income from the system” to “make contribut ions” to the systems—flow naturally. Applying the rule of the last antecedent avoids that trouble, and “reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that modifier only to the item directly before it.” Lockhart , 136 S. Ct. at 963.

Second, nothing in the br oader statutory landscape supports an interpretation of Se ction 718(a) as “equalizing” the responsibility for funding the Syst em. Maj. Op. at 56. Section 718(a) says nothing about the allocation of funding responsibilities, much less that it must be equal. Nor does Section 718(f)’s directive that the various system inputs must “together” provide the actuarial reserve. Just because W + X +
Y = Z does not mean W = X or W = Y.

Indeed, if the statute tells us anything about allocation,
it is that the GVI bears the labor ing oar. As first enacted, the statute created a fixed “4 per cent” employee contribution and a variable employer rate. See 3 V.I.C. § 718 paras. 2, 5 (1959). A 1968 amendment added a fixed-percentage employer contribution in Section 718(g) exceeding the em ployee rates in Section 718(b). See Act of Feb. 8, 1968, No. 2098, § 1, 1968 V.I. Sess. Laws, Pt. I, 9–10 (enumerating member and employer contribution rates in §§ 718(b) and (g), respectively). Since July 1, 1968, the GVI’s contribution required by Section 718(g) has always exceeded the contemporaneous contribution required from members under Section 718(b). 26 That lopsided

26 See Act of Apr. 23, 1970, No . 2700, § 12, 1970 V.I. Sess. Laws 73, 82–83; Act of July 8, 1974, No. 3593, § 3, 197423 responsibility grew in 2005, when another amendment prohibited the GERS Trustees from increasing employee
contribution “rates” more than 3.0% over a five-year period. Act of Nov. 2, 2005, No. 6794 , § 14.2, 2005 V.I. Sess. Laws 380, 396–97. Section 718(g), by contrast, has never had a comparable rate increase cap. See 3 V.I.C. § 718(g) (2021). 27 And the GVI, not the members, ha s always borne responsibility for covering administrative costs. Id. § 718, para. 6 (1959); id. § 718(i) (1968); id. § 718(f) (2021).

This is all to say that there is nothing “contradict[ory]” in reading Section 718(f) as el evating the GVI’s financing responsibility. Maj. Op. at 56. Quite the contrary. Doing so gives meaning, rather than su perfluity, to Section 718(f), consistent with “the larger statutory landscape[.]” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 , 1722 (2017); Scalia & Garner, Reading La w 180 (“[T]here can be no justification for needlessly rende ring provisions in conflict if they can be interpre ted harmoniously”).

3. Section 718(f) Requires the ADEC

So what is the GVI’s resp onsibility, exac tly? To “make
contributions” that are “suffi cient to provide adequate

V.I. Sess. Laws 189, 190; Act of March 15, 1 990, No. 5522, § 1(xii)–(xiii), 1990 V.I. Sess. Laws 34, 37–38; Act of Apr. 12, 2008, No. 6992, §1, 2008 V .I. Sess. Laws 14, 15.

27 This does not mean that the statute empowers the GERS Board to unilaterally increa se the GVI’s rates in Section 718(g) to achieve actuarial so undness. Maj. Op. at n.29. Indeed, as the majority observe s, it is GERS’s inability to do so that arguably make s its cross-appeal justiciable in the first place. Maj. Op. at n.4.24 actuarially determined reserve” for the system. 3 V.I.C. § 718(f). But not, as the majority suggests, exclusively through the fixed-percentage contribu tions enumerated in Section 718(g). Section 718(f) must require a separate contribution from its fixed-percentage contribu tions in Section 718(g). If we are to give effect to Secti on 718’s unambiguous requirement that the system maintain an ac tuarially sound reserve, Section 718(f) must cover what the fixe d-percentage contributions and
interest income do not. Otherwis e, we would not only need to “treat [Section 718(f)] as stray ma rks on a page—notations that [the Legislature] regrettably ma de but did not really intend.” Advocate Health Care Network v. Stapleton , 137 S. Ct. 1652, 1659 (2017) (internal quotatio n marks omitted). We would also ignore the “presumptio n against ineffectiveness—the idea that Congress presumably does not enact useless laws.” United
States v. Castleman , 572 U.S. 157, 178 (2014) (Scalia, J., concurring).

Taken together, I cannot adop t an interpretation of the
“Finance” Section of the GERS statute that does not finance

GERS.

4. The Majority’s Reasoning

The majority offers two respon ses to this reading. First, if Section 718(f) required th e GVI to make the ADEC contribution, Section 718(g)’s fixed-percentage contribution would be superfluous. Maj. Op. at 57. Setting aside that the majority’s view makes Sec tion 718(f) redundant twice over— essentially repeating Sections 718(a) and (g)—I do not see why a steady stream of funding ever y pay period is pointless just because more is coming late r. 3 V.I.C. § 718(h) (1968) (requiring contributions “each payroll period.”). GERS, like any “corporation,” must regularly tend to “debts, obligations,25 contracts, . . . expenditures, facilities, and property,” id. § 701(c), other “administrative expenses,” id. § 718(f), and, critically, investments. And a ll persons, real or legal, “[r]emember that Money is of a prolific generating nature. Money can beget Money, and its Offspring can beget more,
and so on. . . . The more there is of it, the more it produces every Turning, so that the Profits rise quicker and quicker.” Benjamin Franklin, Advice to a You ng Tradesman (1748) , in The Works of Benjamin Frank lin, Vol. II 87, 87–88 (Jared Sparks ed., Hilliard, Gray & Co . 1840). The ADEC, dependent as it is on the Legislature’s respon se to a once- or twice-annual “actuarial reserve” calculation, 3 V.I.C. § 718(e), may not satisfy these urgent demands. And even if a robust ADEC
disbursement leaves Section 71 8(g)’s regular income stream with “little to do, that ’s hardly a reason to abandon it,” for it is
“not our function to rewrite a constitutionally valid statutory text under the banner of speculation about what [the Legislature] might have intended.” Wis. Cent. Ltd. , 138 S. Ct. at 2073. If Section 718(g) would then do nothing at all, that is not dispositive either. “Sometimes the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc. , 139 S. Ct. 873, 881 (2019).

The majority next argues th at the statutory history proves that Section 718(f) merely creates an aspirational goal that the Section 718( g) fixed-percentage contributions will
ensure actuarial soundness. Be cause the 1959 version of the statute also obligated the em ployer to ensure actuarial
soundness but defined “the amo unt of contributions by the employer” as “determined by appl ying a percentage rate to the aggregate compensation of th e members for each regular payroll period,” the “employer co ntribution” described in the amended statute must bear this meaning too. Maj. Op. at 57–26 58, quoting Act of June 24, 19 59, No. 479, § 718, 1959 V.I. Sess. Laws 92, 110.

I disagree. The majority lo oks to statutory language 28

stricken from the statute in 19 68. Act of Feb. 8, 1968, No. 2098, § 718(f), 1968 V.I. Sess. Laws, Pt. I, 9. The 1968
amendments also bifurcated the “adequate actuariallydetermined reserve” funding obligation and the fixedpercentage contribution obligatio n into separate sections, (f) and (g), respectively. Id. at 9–10. These revisions are telling. After 1968, the employer’s oblig ation to ensure actuarial adequacy remained (new § 718(f)), but “the amount of contributions by the employer” (§ 718 para. 5 (1959)) was no longer exclusively tethered to employee salaries (new § 718(f)–(g)). “To my mind, [the Legislature]’s decision to
remove the only language that could have fairly captured” the majority’s reading “canno t be easily ignored.” BNSF Ry. Co.

v. Loos , 139 S. Ct. 893, 907 (2019) (Gorsuch, J., dissenting).

Nor does Section 718(g)’s “detailed schedule of percentages” transform Section 718(f)’s less-detailed description of the ADEC into th e always-dreaded “elephant in a mousehole.” Maj. Op. at 58. As enacted, the ADEC may not have been an elephant. As r ecently as 1999, the “additional required contribution for the year” necessary to achieve actuarial adequacy was $24 million. JA127. Each of the next two years, the GVI’s actuarially determined contributions fell ~$21 million short. The GVI’s underfunding snowballed, soon

28 That “the amount of c ontributions by the employer for the various purposes of the system shall be determined by applying a percentage rate to the aggregate compensation of
the members.”27 requiring GERS to liquidate inve stments in a futile attempt to tame the growing “elephantine mass” of debt. Ortiz v. Fiberboard Corp ., 527 U.S. 815, 821 (1 999). Section 718(f) is not an elephant in a mousehole so much as a mouse in a mousehole who, neglected by the homeowner, spawned a family of mice. In any event, counting how much debt piled up over decades of non-compliance does not answer whether the GVI must pay that bill. Elev ating poor perfo rmance to a defense against legal duty would make for quite a rodent’s nest in which anyone can hide from statutory obligations.

Finally, the majority looks beyond the statute to the testimony of GERS representatives before the Legislature in
1997 and 2005. To the majority, this proves that GERS understood that Section 718(f) does not require the ADEC. Maj. Op. at 62–66. 29 Respectfully, I am not sure why this

29 The majority also cites a stray comment from a Virgin Islands Senator acknowledging that “the government throws in an additional percentage” on top of employee contributions “and that creates a pool of money for [GERS].” Maj. Op. at n.34, quoting Sept. 26, 2005 Reg. Sess. (Part II) Hrg. Tr. 46:2– 6. The majority sugg ests this shows that legislators shared GERS’s understanding that Se ction 718 only requires fixedpercentage contributions. At best , this statement describes how Section 718(g) works. It says nothing about Section 718(f) nor suggests the Legislature did not recognize the ADEC obligation. We should not “allow[] ambiguous legislative history to muddy clear statutory language.” Milner v. Dep’t of the Navy , 562 U.S. 562, 572 (2011).
Even more to the point, this is a problematic way to discern the meaning of Section 718. “State legislatures are28 ancient testimony in a legi slative hearing matters, for “legislative history is not the law,” Epic Sys. Corp. v. Lewis

, 138 S. Ct. 1612, 1631 (2018), and “‘[p]ost enactment legislative history is not a reliable source for guidance’ in assessing the ordinary meaning of a statute.” Johnman , 948 F.3d at 620 n.8 (alterati ons in original) (quoting Pa. Med. Soc’y
v. Snider , 29 F.3d 886, 89 8 (3d Cir. 1994)). The testimony of non-legislators is of the least authoritative sort. See William M. Eskridge, Jr., Phillip P. Fr ickey & Elizabeth Garrett, Legislation and Statutory Interpretation 317 (2d ed. 2006). If the thought is that GERS’s stat ement is reliable as against its own interest, then why would the majority dismiss as irrelevant the GVI’s recent admission through counsel that “[t]here is an obligation to pay” the ADEC (b ut the Consent Decree does not incorporate it)? Maj. Op. at n.28, citing JA1786–88. If one party’s understanding of this text is all but dispositive, the
other’s is at least relevant. Of c ourse, neither is either of those things, because “[o]ral testimony of witnesses . . ., can seldom be expected to be as precise as the enacted language itself.” Regan v. Wald , 468 U.S. 222, 237 (1984). Determining the

composed of individuals who often pursue legislation for multiple and unexpressed purposes . . . [W]hat percentage of the legislature must harbor [this view] before we can impute it
to the collective instit ution? . . . And if tr ying to peer inside legislators’ skulls is too frau ght an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text where we began?” Virginia Uranium, Inc. v.

Warren , 139 S. Ct. 1894, 1906–07 (2019) (Gorsuch, J., plurality opinion). This difficu lty is why “[f]loor statements from [one] Senator[] cannot am end the clear and unambiguous language of a statute.” Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 457 (2002).29 meaning of a statute “by such colloquies, . . . would open the door to the inadvertent, or pe rhaps even pla nned, undermining of the language actually voted on.” Id. 30

Reading Section 718(f) out of the statute eliminates
Section 718’s mandate that th e System fund an actuarial reserve. That is why I respectfu lly decline to jo in the majority

as to Part IV.

II. A RTICLE III R EMEDIES

Beyond the questions of contract and agreement, statutes and best meanings, and the decisions that produced this particular moment in a longs tanding crisis, rests a most fundamental problem. The GVI, following the usual course of lawmaking, invoked the legislative powers delegated from the people to commit a portion of the people’s property to GERS.

30 This same reasoning shou ld foreclose imbuing the
text of the Consent Decree w ith extrinsic ev idence such as GERS’ testimony or the partie s’ conduct. Because we can interpret the contract within its “four corners,” including the portions of Section 718 “expressly incorporated in the decree,”
ITT Cont’l , 420 U.S. at 238, our inquiry should end there. No matter the extrinsic evidence, “the parties remain bound by the appropriate objective definition of the words they use to express their intent.” Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 76 (3d Cir. 2011) (citation and quotation marks omitted). Accord Restatement (Second) of Contracts § 203(b) (1981) (in contract interpreta tion, “express terms are given greater weight than course of pe rformance, course of dealing, and usage of trade”). The Co nsent Judgment includes “employer contributions” in Section 718, including those required by Section 718(f).30 That is how lawmakin g works. Then, repudiating that promise, it paid GERS much le ss. Justly, GERS obje cts. Insolvent, GVI offers regrets and hopes that tomorrow will bring a better answer. Options abou nd within the ampl e powers of the legislative and executive bran ches. Still more exist in the people of the Virgin Islands, to whom both those public bodies
are accountable.

But what of the courts esta blished under Article III? Can they use the judicial power to simply order a sovereign territorial government 31 to pay? Respectfully , the original and,

31 No authority exempts case s arising in the Virgin Islands from the scope of the Article III judicial power. See,

e.g , Birdman v. Office of the Governor , 677 F.3d 167, 173 (3d Cir. 2012) (affirming dismissal of claim against Virgin Islands as unripe because “[f]ederal c ourts are only empowered to
decide cases and cont roversies as our Article III jurisprudence defines them.”) (internal c itation and quotation marks omitted); United States v. Gov’t of V.I. , 363 F.3d 276, 284 n.3 (3d Cir. 2004) (“The District Cour t of the Virgin Islands is an Article IV court, but is authorized by statute to exercise jurisdiction equivalent to an Article III court”) (discussing 48 U.S.C. § 1612(a)); Edwards v. HOVENSA, LLC , 497 F.3d 355, 360 (3d Cir. 2007) (citing 48 U.S. C. § 1613). As noted by the District Court of the Virgin Isla nds, the territory is subject to the same fundamental separation-of-powers principles that apply throughout our Republic. See Bell v. Luis , 528 F. Supp. 846, 850 (D.V.I. 1981) (invalidatin g Virgin Islands Governor’s order seeking to “redirect territorial funds” without legislative authority because the “necessity for ‘checks and balances’
forms the basis for our constitutio nal form of government and must be adhered to”).31 indeed, enduring understanding of the Constitutio n holds they
may not.

A. The Judicial Power Holds No Purse

A summary of foundational pr inciples helps frame my concerns. The Appropriations Clause of the U.S. Constitution
states that “No Mone y shall be drawn from the Treasury, but in Consequence of Appropria tions made by Law[.]” U.S. Const. art. I, § 9, cl. 7. This cl ause is not an authorization of spending but “a limitati on on executive or j udicial action rather than a grant of any power—which is why it appears in Article I, section 9, the portion of th e original Cons titution that is
devoted to direct limitations on various federal actors.” Gary Lawson & Guy Seidman, The Constitution of Empire 27 (2004). 32 The Founders found, rath er than invented, this “power of the purse” a new noble privilege that “in the history of the British Constitution . . . gr adually enlarg[ed] the sphere of its activity and importance, an d finally reduc[ed ], as far as it seems to have wished, all the overgrown prerogatives of the other branches of the governme nt.” The Federalist No. 58, p. 350 (Issac Kramnick ed., 1987) (Madison). 33 Persuaded by that

32 The Appropriations Clause “makes appropriations statutes a precondition to any federal spending, so that presidents and judges cannot spend on their own authority.” Lawson & Seidman, The Constituti on of Empire 27. It is not the source of Congress’s power to spend. That must be found elsewhere in the Constitution, su ch as the Property Clause of
Article IV. See id.

33 Placing the spending power outside the executive and the judiciary was an innovation of colonial America that led to32 experience, the Framers and Ratifiers hoped to give the people of the new American Republic the same power “to resist the royal tax collectors, to assert th eir right of being asked for their consent to new or exceptional levies . . . to determine the expenditures of the govern ment.” Carl Friedrich, Constitutional Government and Democracy 281 (1965). 34

the rise of the colonial assemblies. See Christine A. Desan, The
Constitutional Commitment to Le gislative Adjudication in the Early American Tradition , 111 Harv. L. Re v. 1381, 1391 n.23 (1998) (gathering sources). In fact, “no provisions appear to contemplate suits that would allow recovery for colony obligations such as those of contract and taking.” Id . at 1444–
45. The Constitution enshrined that limit, and the record shows
that even contractual claims against the government required an appeal to the legislature, not the court. “[W]hile the right to indemnity was understo od in contractual terms, the practice of securing a determination of th e right to indemnity almost invariably entailed the submissi on of a petition to Congress for the adoption of private legisl ation.” James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic , 85 N.Y.U. L. Rev. 1862, 1866 (2010).

34 The commentaries from the first American generation share this conclusion. For example, St. George Tucker’s
influential Blackstone’s Commentaries connects the rights of the people to the appropriations approved by the legislature:

All the expenses of government being paid by the people, it is the right of the people, not only, not to be taxed without their own consent, or that of their representatives freely chosen, but also to be33 Rightly, they viewed the power of the purse “as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” The Federalist No. 58, p. 350 (Isaac Kramnick ed., 1987) (Madison). By design, not historic accident, “the legisla tive department alone has access to the pockets of the people.” The Federalist No. 48, p. 310 (Isaac Kramnick ed., 1987) (Madison). Relegating the appropriations power to the legislature meant “the purse remains, by this Cons titution, in the representatives of the people. We know very well that they cannot raise one shilling but by the consent of the representatives of the people. . . . Every appropriation must be by law.” 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 172–73 (Jonathan Elliot ed., 2d ed. 1836)

actually consulted upon the disposal of the money which they have brought into the treasury; it is theref ore stipulated that no money shall be drawn from the treasury, but in consequence of appropria tions, previously made by law: and, that the people may have an opportunity of judging not only of the propriety of such appropriations, but of seeing whether their money has been actu ally expended only, in pursuance of the same...

St. George Tucker, Blackstone’s Commentaries 1 App. 362– 64, in The Founders’ Constitution , Volume 3, Article 1, Section 9, Clause 7, Document 3 (Univ. of Chicago Press),http://presspubs.uchicago.edu/founders /documents/a1_9_7s3.html

.34 (Maclaine) (responding to Lock e’s doubts that the federal judiciary would be impartial). 35

In contrast, the judicial power is as limited as it is independent. 36 Even to the staunchest advocates of federal

35 In that same spirit, the Rhode Island delegates expressed their concerns to Go v. William Greene on the need to guard spending to guarantee liberty:

The power of the purse is the touch-stone of freedom in all States. If the people command their own money they are free; but if their Sovereign commands it they are slaves. All other strings in government take their tone from the mode of raising money. An alteration therefore in the mode of raising mo ney is an alteration of
the Constitution. It is an essential & radical change. A change that, on experience, will be felt most sensibly. It cannot be an indifferent thing, or a matter of small moment. It is like altering the center of gravity. It is like transferring the fee simple of an estate. It is like putting your weapon
of defence into another man’s hand.

Letters of Delegates to Congre ss: Volume 20 March 12, 1783 - September 30, 1783, 638 (S ept. 8, 1783), Rhode Island Delegates to William Greene, https://memory.loc.gov/cgibin/query/r?ammem/hlaw:@fi eld(DOCID+@lit(dg020542)).

36 “Th[e] belief in the limited nature of the [court’s] equity power was consistent with the framers’ broader understanding of the judicial power, which was, in Publius’35 authority, this limitation on the judicial power was necessary to affirm Congress’s primacy and the complex role of the Executive in faithfully implementing legislative decisions.

Indeed, “[i]n establishing th e system of divided power in the Constitution, the Framers c onsidered it essential that ‘the judiciary remain[ ] truly distin ct from both the legislature and
the executive.’” Stern v. Marshall , 564 U.S. 462, 483 (2011) (alteration in original) (quoting The Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (Hamilton)). So the “[j]udicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in othe r words, to the will of the
law.” Gamble v. United States , 139 S. Ct. 1960, 1982 (2019) (Thomas, J., concurring) (quoting Osborn v. Bank of United

States , 9 Wheat. 738, 866 (1824) (Marshall, C.J.)). 37

opinion, ‘beyond comparison the weakest of the three departments of power.’” John Choon Yoo, Who Measures the
Chancellor’s Foot? The Inherent Remedial Authority of the
Federal Courts , 84 Cal. L. Rev. 1121 , 1159 (1996) (quoting
The Federalist No . 78 (Hamilton)).

37 “Although ‘judicial independe nce’ is often discussed in terms of independence from ex ternal threats, the Framers understood the concept to also require independence from the
‘internal threat’ of ‘human will.’” Perez v. Mortg. Bankers

Ass’n , 575 U.S. 92, 120 (2015) (Thomas, J., concurring) (quoting Philip Hamburger, Law and Judicial Duty 507, 508 (2008)). Judges ought to guard against these internal threats, which “might include pe rsonal biases,” because “[i]ndependent judgment require[s ] judges to decide cases in36 Thus it was the Executive, not the Judiciary, that the Founders saw as most likely to usurp Congress’s appropriation power. Key to that balance is “[t]he separation between the
Executive and the ab ility to appropriate funds that was frequently cited during the founding era as the premier check on the President’s power.” United States House of Representatives v. Mnuchin , 976 F.3d 1, 8 (D.C. Cir. 2020). It was a promise made to allay the fears of Anti-Federalists that the president would soon become a tyrant. See Josh Chafetz, Congress’s Constitution, Legislative Authority and the Separation of Powers 57 (2017); see also 3 Elliot’s Debates 367 (Madison) (responding to Anti -Federalist claims that the
President could make himself ki ng by explaining that “[t]he purse is in the hands of the repr esentatives of the people”). This is why Madison called the power of the purse “the most complete and effectual weapon with which any constitution can arm the immediate representati ves of the people . . . .” The Federalist No. 58, p. 350 (Isaac Kramnick ed., 1987) (Madison). And Hamilton persua ded those at the New York ratification convention by telling them, “where the purse is lodged in one branch , and the sword in another, there can be no danger.” 2 Elliot’s Debates 349 (Hamilton).

The history of the constitutional debates makes clear that the purse belongs only to the people who, through a conscious delegation of agency, entrust that awesome privilege

accordance with the law of the land, not in accordance with pressures placed upon th em through either in ternal or external

sources.” Id . at 120–21.37 to the legislature. 38 In fact, “the Conven tion never had in mind that the right of appropriation could be exercised by any branch other than the legislature. . . . There is no warrant to believe that judges had any authority to appropriate money from the treasury.” Figley & Tidmarsh at 1252. And “[ t]hroughout the debates, delegates expressed con cern for the ‘purse strings’ or the ‘purse’ — always regarding the protection of the people’s money as a legislative functio n. No delegate voiced the opinion that the judicial bran ch would have any say in the government’s finances.” Id . at 1253. From our earliest days, the judicial power was appropri ately limited in proportion to its independence as the only branch of government not beholden to the people throu gh elections. And so we are therefore subject to the “clear restraints” on our authority arising from “federalism and the separation of powers, [which] derive from the very fo rm of our government.” Missouri v.

38 A review of the histor ical literature on the appropriations clause gives us bo th scope and context for these sources. Synthesizing Federalist No s. 48, 58, 78, and 81, Figley and Tidmarsh highlight how the power of the purse belongs solely to the legislature. “Det ermining the circumstances under which the government was liabl e for monetary relief was a legislative, not a judicial, f unction.” Paul F. Figley & Jay
Tidmarsh , The Appropriations Power and Sovereign Immunity , 107 Mich. L. Rev. 1207, 1257 (2009). Recounting the history of debating states’ debts during Ratification, they write, “the shared understandi ng of both those favoring and those opposed to the Constitution was that legislatures, which controlled appropriations from the public treasury, controlled the award of claims against the sovereign.” Id . at 1258.38 Jenkins , 515 U.S. 70, 131 (1995) (Thomas, J., concurring) (“

Jenkins II ”).

B. The Historic Protections Against Judicial Spending

Thanks to the clarity of the text of the Appropriations Clause, federal courts have alwa ys understood they lack power to order money judgments agains t the coordinate branches of government—be they federal, state, or local—absent legislative appropriations or, in th e rare case, an equivalent and explicit legislative funding commitment. Sometimes, it is
called an “established rule” that “the expenditure of public funds is proper only when authorized by Congress.” United
States v. MacCollom , 426 U.S. 317, 321 (1976) (citing Reeside
v. Walker , 52 U.S. (11 How.) 272, 291 (1850)). Other times, a “historic . . . principle” that “b efore any expenditure of public funds can be made, there must be an act of Congress appropriating the funds and defining the purpose for such appropriation. Thus, no officer of the Federal Government is authorized to pay a debt due from the U.S., whether or not reduced to a judgment , unless an appropriation has been made for that purpose.” Hughes Aircraft Co. v. United States , 534 F.2d 889, 906 (Ct. Cl. 1976) (citing Reeside , 52 U.S. (11 How.) at 290) (emphasis added). But wh atever the characterization,
the character of the cases is cl ear: “a treasury, not fenced round” and “subjected to any number of description of
demands” from “the undefined and undefinable discretion of
the courts” would constitute “an ab sence of all rule” that would create a government “ guided by . . . the uncertain, and perhaps contradictory action of the courts , in the enforc ement of their views of private interests.” U.S. ex rel. Goodrich v. Guthrie , 58 U.S. (17 How.) 284, 303 (1854).39 This limitation connects to the limited nature of the judicial power. While the federal courts can decide cases and controversies involving the other branches of government, they cannot order the payment of a judgment against a sovereign absent an appropriation. See, e.g.

, Office of Pers. Mgmt. v.
Richmond , 496 U.S. 414, 424–26 (19 90) (“Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury.”). As a result, Congress needed to appropriat e funds for judgments against the federal government, first annually, e.g. , Act of June 25, 1864, ch. 147, 13 Stat. 145, 148, now with indefinite guarantees covering most adve rse money judgments against
the United States. See 31 U.S.C. § 1304.

1. Open-Ended Money Judgments

The Appropriations Clause is “a core structural protection of the Constitution—a wall, so to speak, between the branches of gover nment that prevents encroachment of the
House’s and Senate’s power of the purse.” Mnuchin , 976 F.3d at 8. As with all separation of powers issues, our jurisprudence “generally focuses on the danger of one br anch’s aggrandizing its power at the expense of another branch.” Freytag v. Comm’r of Internal Revenue , 501 U.S. 868, 878 ( 1991). So when there is an enforceable obligation—whether by contract or statute— a money judgment can only apply to a legislative appropriation, or a similar stat utory mechanism if one exists. 39

39 For example, upon finding the Government liable for contract damages the Federal Co urt of Claims observed that “where the Appropriations Clause and the Anti-Deficiency Act40 Nor can federal courts compel a government to raise the monies needed to satisfy a money judgment. INS v. Pangilinan

, 486 U.S. 875, 883 (1988) (“‘A Court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law . . . .’”) (quoting Rees v.

Watertown , 86 U.S. (19 Wall.) 107, 122 (1873)). The range of equitable remedies not “in viol ation of law” is extremely narrow. Article III does not permit the use of equitable powers to compel local governments to satisfy judgment debts. Rees

, 86 U.S. (19 Wall.) at 122. In Rees

, the Court held that it lacked the power to appoint a receiver to levy and collect taxes to pay a town’s municipal bond debt. Id. at 108–10, 116. That is because the “power to impose burdens and raise money is the highest attribute of sovereignt y,” a “power of legislative authority only. It is a power that has not been extended to the judiciary.” Id . at 116–17.

Similarly, in Meriwether v. Garrett , the Court recognized that a writ of ma ndamus could issue to compel municipal authorities to collect taxes, if they had such authority. 102 U.S. 472 , 501–02 (1880). But “if those [taxing] authorities possess no such power, or their offices have been abolished and the power with drawn, the remedy of the

prohibit payment from the United States Treasury,” the Court should instead rely on its power to make an “otherwise valid declaration of parties’ rights in a contractual claim against the government.” Wetsel-Oviatt Lumber Co., Inc. v. United States

, 38 Fed. Cl. 563, 571 n.9 (1997). Courts must follow the rule that “[w]ithout congressional permission, . . . no money may be paid by the Treasury.” Am. Fed’n of Gov’t Emps., AFL-CIO,
Local 1647 v. Fed. Labor Relations Auth. , 388 F.3d 405, 409 (3d Cir. 2004).41 creditors is by an appeal to the legislature, which alone can give
them relief.” Id. at 518. That is becaus e “[n]o Federal court, either on its law or equity side , has any inherent jurisdiction to lay a tax for any purpose, or to enforce a tax already levied, except through the agencies provided by law.” Id. (further noting that the “Federal court . . . cannot seize the power which belongs to the legislative depart ment of the State and wield it in their behalf”). For dissatisfied creditors, “the remedy is by appeal to the legislature.” Id. at 501–02. Thus, as modern courts have also found, “where there is no state or municipal taxation authority that the fe deral court may by mandamus
command the officials to exerci se, the court is itself without authority to order taxation.” Missouri v. Jenkins , 495 U.S. 33, 73 (1990) (Kennedy, J., concurri ng in part) (citing cases).

2. Correcting Constitutional Harms

The narrow exception to this rule is that federal courts can order a state to remedy cons titutional violations and, in so doing, require the state to incur co sts. That is not the case here, as GERS’s rights are statutory and contractual. But even when imposing costly remedial schemes on states, federal courts of appeals and the Supreme Court recognize the constraints of
Article III.

Aware of this limit, GERS relies on Missouri v. Jenkins

, 495 U.S. 33 (1990), a case differing in both degree and kind.

In Jenkins , the Supreme Court affirmed a district court’s desegregation order requiring th e Kansas City government to pay (along with Missouri) to remedy constitutiona l violations.
Id. at 53–54. In doing so, the Court agreed the district court could revise its order to enjoin a state prohibition on local tax
increases and permit Kansas City to levy taxes adequate to fund the desegregation plan. Id. at 54–55. The Court stated that42 Article III would not bar that remedy because “a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason
based in the Constitution for not observing the statutory
limitation.” Id. at 57. But the funds owed to GERS have no
constitutional nexus.

More importantly, Jenkins vacated the District Court’s
order requiring the Kansas City government to raise taxes. Id.
at 50–51. The Court found that was an “intru[sion] on local authority” beyond the district court’s equitable powers. Id. at 51. Under “principles of comity” governing equitable remedies, “the District Court wa s obliged to assu re itself that no permissible alternative wo uld have accomplished the required task” before taking the “drastic step” of imposing the

tax. Id. at 50–51. Vacating a mandatory tax increase and, instead, permitting local authoritie s to determine whether that

was necessary on their own, was “more than a matter of form.”
Id . at 51. Rather, it empowered “local authorities [who] have the ‘primary respon sibility’” for solvi ng desegregation “to devise their own solutions to these problems.” Id. at 51–52 (citing Brown v. Bd. of Educ. , 349 U.S. 294, 299 (1955)). In this regard, Jenkins follows Supreme Court precedent prohibiting the Court from assumi ng the legislature’s power to

tax.

Our own decisions recognize the same limitations. In
Evans v. Buchanan , we vacated a district court’s denial of Delaware’s request to enjoin a local school board from raising taxes to fund a desegregation plan. 582 F.2d 750, 779 (3d Cir. 1978). We remanded for a new hearing because the district court had failed to “extend[] the requisite deference” to Delaware’s superseding state tax law “to whic h legislative43 judgments in the field of taxation are entitled.” Id. at 778. Even in the face of Delaware’s egre gious failure in desegregation efforts, this Court held that if Delaware’s funding proved inadequate “legislators will mo st certainly receive feedback
from their electors” and these “i nherent political safeguards . . . should be permitted to run their own course.” Id. at 790.

That result is significant, showing that even when fundamental constitutional right s are at stak e, we cannot simply order a government to spend money. Instead, we require compliance with constitutional obligations, and any spending is incidental or even optional. See Milliken v. Bradley , 433 U.S. 267, 2 95 (1977) (Powell, J., concurring) (“Ordinarily a federal court’s order that a State pay unappropriated funds . . . would raise the gravest constitutional issues. But here, . . . the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospec tively in a remedy [to provide $5.4 million in funding] ot herwise appropriate.”)

All of this creates a tight passage for an enforcement order implicating governmental spending to sail. And rightly so, lest we “improperly substitu te[] [our] own . . . budgetary policy judgments for those of the state and local officials to
whom such decisions ar e properly entrusted.” Horne v. Flores

, 557 U.S. 433, 4 55 (2009) (citing Jenkins II , 515 U.S. at 131 (Thomas, J., concurring)). Usurping the powers given to the legislature not only distorts the principles of agency supporting the limited transfer of powe r from the people to their legislature, it unbalances the fi nely distinguished roles of the coordinate branches, transformi ng the least dangerous branch into one not recognized by the Constitution.

III. C ONCLUSION44 This case is neither the first nor the last pension controversy. Similar state pens ion fund cases show that these same separation-of-powers principles prevent state courts from doing what we, as a fede ral court, dare not. See Ill. Educ. Ass’n

v. State , 28 Ill. Ct. Cl. 379, 384–89 (1973) (finding that the
state had breached its contract ual obligations to fund two pensions as required by implem enting statutes but any decision to compel the legislature to ma ke appropriations would violate the separation of powers); see also Valdes v. Cory , 189 Cal. Rptr. 212, 225 (Cal. Ct. App. 1983) (“[A] court of this state is powerless to compel the Legislature to appropriate such sums or to order payment of the indebtedness”).

No less restraint applies to this Court 40 , and we must recognize that “[e]xpenditures to ward the fulfilment of public

40 In affirming in part the District Court’s order the majority notes that “the GVI did not challenge the underlying order––the 1984 consent judgme nt––as invalid for lack of an appropriation prior to appea ling the District Court’s enforcement order.” Maj. Op. at n.35, citing United States v. Gov’t of V.I. , 363 F.3d 276, 291–92 (3d Cir. 2004). In Gov’t of

V.I. , we held the GVI’s argument was estopped because it had not appealed the December 2001 enforcement order of a 1985
consent decree. 363 F.3d at 292 . But estoppel does not expand our jurisdiction into the separate powers of the legislature, because “[l]ike the Constitution’s other structural features, ‘[n]either Congress nor the Execu tive can agree to waive’ the Appropriations Clause.” Keepseagle v. Perdue , 856 F.3d 1039, 1060 (D.C. Cir. 2017) (Brown , J., dissenting) (quoting Freytag
v. Comm’r Internal Revenue , 501 U.S. 868, 880 (1991)). The Constitution’s limitations on judi cial power remain in full45 policy are integral to policymak ing itself, and policymaking is left to the legislature.” Keepseagle v. Perdue , 856 F.3d 1039, 1059 (D.C. Cir. 2017) (Bro wn, J., dissenting) (citing Clinton v. City of New York , 524 U.S. 417, 451 (1998) (Kennedy, J., concurring)). The Constitution “assure [s] that public funds will be spent according to the lette r of the difficult judgments reached by [legislators] as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants.” Richmond , 496 U.S. at 428.

Some will see a flaw in that design. 41 Through amendment, we might strike a di fferent balance, though “it is by no means certain, that evils of an opposite nature might not arise, if the debts, judicially ascertained to be due to an individual by a regular judgment, were to be paid, of course, out of the public treasury. It might give an opportunity for collusion and corruption in the management of suits between the claimant, and the officers of the government, entrusted with the performance of this duty.” Joseph Story, 3 Commentaries on the Constitution of the United States § 1343, in The

force “even if ‘the parties’ befo re a court ‘cannot be expected to protect them.’” Id. (quoting Commodity Futures Trading
Comm’n v. Schor , 478 U.S. 833, 851 (1986)).

41 Tucker, for one, thought “the constitution and laws of the United States appear, then, to be defective upon this subject.” Blackstone’s Commentaries 1 App. 362–64. But that
criticism did not alter his textua l analysis, for “whatever doubt there may be upon the subject, u nder the laws of the state, it seems to be altogether without a question, that no claim against the United States (by whatever au thority it may be established,) can be paid, but in consequence of a previous appropriation made by law.” Id

.46 Founders’ Constitution , Volume 3, Article 1, Section 9, Clause 7, Document 4 (Univ. of Chicago Press). 42 Perhaps Story’s prescience nearly nineteen deca des ago gives insight into the decades of litigation in this matter. One wonders if the simplicity of a judicial pronounce ment might be thought easier, more expedient, than summoning the will to face the options for solving the GERS funding problem. Maybe some imagine that pointing to the handiwork of the unelected judiciary will
afford a convenient occasion for handwringing and handing off the accountability for the inev itably painful choices about
limited tax dollars.

Thankfully, we need not sp eculate. Because we know, with certainty, that a federa l court of limited powers and limited authority under our Constitu tion cannot play that role.

42 http://presspubs.uchicago.edu/founders /documents/a1_9_7s4.html.