                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2005

Govt Empl Ret Sys v. Turnbull
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2342




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 04-2342


              GOVERNMENT EMPLOYEES RETIREMENT SYSTEM
                  OF THE GOVERNMENT OF THE UNITED
                        STATES VIRGIN ISLANDS

                                                  Appellant

                                            v.

          CHARLES TURNBULL, Ph.D., as Governor of the Virgin Islands;
                 GOVERNMENT OF THE VIRGIN ISLANDS;
           LEGISLATURE OF THE UNITED STATES VIRGIN ISLANDS




                On Appeal from the District Court of the Virgin Islands
                               (D.C. No. 01-cv-00069)
                    District Judge: Honorable Thomas K. Moore




                            Argued April 20, 2005
             Before: NYGAARD, RENDELL, and SMITH, Circuit Judges.

                                   (Filed: May 16, 2005)

Vincent F. Frazer, Esq. (Argued)
Law Office of Frazer & Williams
Windward Professional Building
70B Kronprindsesns Gade, Suite 320
Charlotte Amalie, St. Thomas, USVI, 00802
             Counsel for Appellant

Adriane J. Dudley, Esq. (Argued)
Dudley Clark & Chan
9720 Estate Thomas, Suite 1
Charlotte Amalie, St. Thomas, USVI, 00802
             Counsel for Appellees Charles Turnbull and the Government
             of the Virgin Islands

Yvonne L. Tharpes, Esq. (Argued)
Office of the Legislative Legal Counsel
P. O. Box 1690
Charlotte Amalie, St. Thomas, USVI, 00804
              Counsel for Appellee Legislature of the United States Virgin Islands

                                         _____

                                  OPINION OF THE COURT




NYGAARD, Circuit Judge.

       Appellant, Government Employees Retirement System of the Government of the

United States Virgin Islands (“GERS”), filed this action against Charles Turnbull, in his

capacity as Governor of the Virgin Islands; the Legislature of the Virgin Islands; and the

Government of the Virgin Islands (“Appellees”). GERS appeals the District Court’s order

granting Appellees’ Motion to Dismiss. For reasons different from those given by the

District Court, we will affirm.

                                            I.

       On June 24, 1959, the Legislature passed legislation enacting GERS. GERS was

established as an employee benefit and pension plan for employees of the Government of

the Virgin Islands. The legislation provided that GERS would be financed by



                                            2
contributions from the employees, the Government as employer, and investments and

interest income. Although the legislature granted management authority to a Board of

Trustees to operate and manage GERS, it reserved for itself the power and responsibility

to determine and adjust the contribution rates. See 3 V.I.C. § 718.

       In 1994, the Legislature enacted the Early Retirement Incentive, Training, and

Promotion Act of 1994, which required the Government, as employer, to make quarterly

contributions to GERS on behalf of the eligible employees to cover the cost of any special

early retirement program. However, the Government failed to remit the quarterly

payments in accordance with the law. By 1999, GERS had an unfunded liability in excess

of $500,000,000.

       This is not the first time the District Court has considered complaints about the

unfunded liability of the system and the Government’s refusal to make contributions.1 In




       1
        This dispute dates backs more than 20 years. In 1984, GERS and the Government
entered into a consent judgment, settling an action in which GERS alleged that the
Government was not fulfilling its obligation to timely remit contributions to the system. In
1994, the District Court approved a modified consent judgment, which required the
establishment of a separate interest bearing bank account for GERS, deposits of contributions
by the Government into the new account within twenty-one days after collection, and
completion of a system audit.

       In 1994, Claude Malloy and three other retirees brought suit against GERS and the
Government alleging claims under the Fifth and Fourteenth Amendments, along with claims
for waste, mismanagement, and breach of fiduciary duty. The District Court dismissed the
bulk of the plaintiffs’ claims for lack of standing, and then dismissed the territorial and
common law claims for lack of subject matter jurisdiction. Malloy v. Monsato, 30 V.I. 164,
187–89 (D.V.I. 1994).

                                             3
the case now on appeal, GERS filed suit for an injunction, damages to recover monies

that are owed to it, and to force the Government to comply with its contractual

obligations. The Legislature filed a motion to dismiss the complaint. The District Court

heard argument on the motion. After a hiatus of nearly two years, the Court granted the

motion to dismiss without an opinion, concluding GERS failed to show the existence of a

contractual obligation arising from the local statute establishing GERS, and therefore it

lacked standing. Additionally, because no federal claims were properly before the Court,

it held that it lacked pendent jurisdiction over the local claims. GERS filed a Motion for

Reconsideration, which the District Court denied, also without an opinion. This appeal

followed.

                                             II.

       Although neither party raises the question of our jurisdiction, federal courts are

bound by the justiciability doctrines of Article III of the United States Constitution. Here,

the ripeness doctrine is dispositive.

       Ripeness, like other justiciability doctrines, ultimately derives from Article III’s

requirement that federal courts may decide only cases and controversies. Felmeister v.

Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir. 1988); see also Nextel

Communications of the Mid-Atlantic, Inc. v. City of Margate, 305 F.3d 188, 192 (3d Cir.

2002). Considerations of ripeness are sufficiently important that we are required to raise

the issue sua sponte, even when the parties do not question our jurisdiction. Id. (citing



                                              4
Suburban Trails, Inc. v. New Jersey Trans. Corp., 800 F.2d 361, 365 (3d Cir. 1986)).

       The Supreme Court has stated that to meet the ripeness standard, plaintiffs must

show either a specific present objective harm or the threat of specific future harm. Laird

v. Tatum, 408 U.S. 1, 14 (1972). Futhermore, “[a] claim is not ripe for adjudication if it

rests upon contingent future events that may not occur as anticipated, or indeed may not

occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal citations

omitted).

       Here, GERS has failed to establish a justiciable case or controversy by failing to

demonstrate a specific harm, either present or future. At oral argument, counsel for

GERS conceded that no GERS members have suffered any harm. Additionally, there is

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

alleged. Because any injury that may occur in the future is speculative, it would be

improper for us to resolve the merits of the case now.

       Because this case is not ripe for judicial review, it does not present a justiciable

“case or controversy.” Accordingly, we will affirm the District Court’s order dismissing

the complaint.
