, ' . 
, '. 
I 
o 
FOR PUBLICATION 
SUPERIOR COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. CROIX 
IN THE MATTER OF: 
MAGISTRATE JUDGE JESSICA GALLIVAN, 
Appellant, 
v. 
GOVERNMENT EMPLOYEES RETIREMENT 
SYSTEM, 
Appellee. 
) 
) 
) 
) 
) 
) CASE NO. SX-17-CV-269 
) 
) Cite as: 2019 VI Super 62 
) 
) 
) 
) 
MEMORANDUM OPINION 
CARROLL, Senior Sitting Judge. 
~I 
Before the Court is the Writ of Review of Magistrate Judge Jessica Gallivan ("Magistrate 
Judge Gallivan," "Magistrate Gallivan" or "Gallivan") of the Decision and Order of the 
Government Employees Retirement System Board of Trustees' ("The Board") in Appeal No. 
OOI-ISX, issued on June 1,2017, with an addendum issued on October 13,2017. The Board's 
Decision and Order will be affirmed in part and reversed in part. 
~2 
Based upon the following memorandum, the Court concludes that Magistrate Judge 
Gallivan is a Tier II judicial member of the Government Employees Retirement System 
("GERS") by virtue 00 V.I.C. § 7701, which applies to magistrates who become members of the 
judicial retirement program after October I, 2005. Notwithstanding the provisions of the Tier II 
judicial retirement program, the Court concludes that Gallivan is entitled to a 30% annuity for 
her first term and 20% annuity for her second term when reading the provisions of3 V.I.C. § 733 
(the Tier I statute) and 3 V.I.C. § 7701 (the Tier II statute) together. The Court also concludes 
that Gallivan's contribution rate was properly found by the Board to be II % for her first two 
terms and that Gallivan is entitled to a refund of contributions with interest wrongfully taken 
from her during her second term, but the Court does not agree with the Board's reasoning 
supporting its conclusions, and finds that the Board should refund an additional sum of money to 
Gallivan for interest. Finally, the Court has determined that Gallivan was not denied procedural 
due process during the course of the hearings before the Board and has also determined that 
Gallivan did not make an argument in support of her assertion that GERS' adjustments to 
contribution and annuity rates under 3 V.I.C. § 7701 (Tier II) are unconstitutional. 
o 
2019 VI Super 62 
o 
In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 2 of22 
FACTUAL AND PROCEDURAL HISTORY 
~3 
Magistrate Judge Gallivan was initially appointed on June 29, 2009, for a four-year term 
as a Virgin Islands Superior Court magistrate. I At the end of that term in 2013, Gallivan was re-
appointed and served a second term until 2017.2 Since 2017, Gallivan has been serving a third 
term.3 Prior to joining the judiciary, Gallivan was employed in the Virgin Islands government as 
a chief labor negotiator, assistant attorney general, law clerk, and summer intern.4 As a chief 
labor negotiator, assistant attorney general, and magistrate judge,S Gallivan has been a 
contributing member of GERS. 6 
~4 
On January 23,2015, after hearing a news story about changes to judicial annuities made 
by the Board, Gallivan sent a letter to GERS Administrator, Austin Nibbs, inquiring whether she 
was classified as a Tier I or Tier II member of the judiciary and as to the judicial annuity to 
which she would be entitled depending upon her date of retirement.7 In the letter, Gallivan said 
that GERS had previously informed her that she was a Tier I member of the jUdiciary.8 On 
January 27, 2015, Nibbs responded to Gallivan, stating that she was a Tier II member of the 
judiciary subject to an annuity rate of 5% of compensation for each year of judicial service.9 On 
January 29, 2015, Gallivan replied, disputing those determinations. 1O 
On January 30, 2015, 
Nibbs asserted that the classification would stand and he provided Gallivan with a copy of the 
"Rules and Regulations for Appeals to the GERS Board of Trustees," indicating that Gallivan 
could appeal the determinations to the Board. II 
~5 
On March 9, 20 IS, Gallivan filed a Petition for Appeal, asking the Board to reconsider 
their classification of her as a Tier II judiciary member rather than as a Tier I judiciary member; 
GERS' reduction of her annuity rate to 5% per year, and thus, to less than 30% of compensation 
I Board of Truslees of the Government Employees Retirement System, Appeal No. 00 1-15X, June I, 2017, Decision 
and Order, page 3. 
2 Petitioner's Memorandum of Law with points and authorities, page 9. 
, Id. at 10. 
41d. at 2-3. 
s Act 7888, § 15 enacted on June 29, 2016 changed the judicial title of "magistrate" to "magistrate judge." It 
provides: "Virgin Islands Code, titles 4 and 5; title 3, sections 733 and 770/; title 14, section 293(a)(5) and section 
1905; title 15; title 33, section 3504(c)(1) are amended by striking 'magistrate', 'magistrates', or 'magistrate's', as 
the case may be, each time they appear, except when appearing in the phrase 'Magistrate Division', and replacing 
them, respectively, with 'magistrate judge' 'magistrate judges', and 'magistrate judge's'." 
6 Petitioner's Memo of Law at 2-3. 
'See Certified Record of GERS Appeal No. 001-15X, Document I: Magistrate Judge Gallivan's January 23, 2015, 
Letter to GERS Administrator Nibbs, page I. 
81d. at 2. 
• See Id., Document 3: GERS Administrator Nibbs' January 27, 2015, Response to Magistrate Judge Gallivan's 
January 23, 20 IS, Letter, page 1. 
10 See Id., Document 4: Magistrate Judge Gallivan's January 29, 2015, Letter. 
II See /d, Document 5: GERS Administrator Nibbs' January 30, 2015, Response to Magistrate Gallivan's January 
29,2015, Letter. 
· .. 
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2019 VI Super 62 
In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 3 of22 
per four-year tenn; and GERS' increase in her contribution rate from 11 % to 14% during her 
second tenn.12 
'\16 
The hearing examiner appointed by the Board held hearings on May 5, 2016, September 
22-23, 2016, and December 1, 2016,13 On May IS, 2017, the hearing examiner submitted 
findings of fact, conclusions of law, and recommendations to the Board. 14 On June 1,2017, the 
Board issued its Decision and Order, styled as Appeal No. 001-15X,15 and on October 13, 2017, 
the Board issued an addendum Decision and Order, which detennined the amount of Gallivan's 
refund with respect to an issue decided in the Board's June 1,2017, Decision and Order. 16 
'\17 
On June 21, 2017, Gallivan filed a petition17 seeking this Court's review of the Board's 
June 1,2017, Decision and Order regarding her pension benefits.18 On February 5, 2018, this 
Court found jurisdiction to review the detenninations of the Board and granted the petition for 
writ of review upon finding that no other adequate remedy was available for Gallivan. 19 
Following the Court's receipt of the record and the parties' briefs, a hearing was held on 
December 18, 2018. 
STANDARD OF REVIEW 
'\18 
Once the Superior Court grants a petition for a writ of review, the Court is empowered 
"to affinn, modify, reverse, or annul the decision or detennination reviewed, and, if necessary, to 
award restitution to the plaintiff, or, by mandate, direct the officer, board, commission, authority, 
12 See Id., Document 6: Magistrate Gallivan's March 9, 2015, Petition for Appeal to Board from Magistrate 
Gallivan, pgs. 1-2. 
IJ See Decision and Order ofthe Board dated June I, 2017 at I. 
" Id. 
IS Id. at 19. 
16 Board of Trustees of the Government Employees Retirement System, Appeal No. 001-15X, October 13,2017, 
Decision and Order. 
17 See Petition for Writ of Review. See also V.1. R. CIV. P. R. 91(a) which provides that a writ of review must be 
filed no later than 30 days after the date of the decision to be reviewed. ("A writ of review may be granted by the 
court upon the petition of any party to any proceeding before, or aggrieved by, the decision or determination of an 
officer, board, commission, authority or other tribunal established by statute. Such petition shall be filed with the 
Appellate Division within the time provided by statute, or if none is provided, then no later than 30 days after the 
date of the decision or determination to be reviewed"). 
"The Board ofTrostees is a component ofGERS that administers the affairs of the GERS (see 3 V.I.e. § 715(a)(I)) 
and is not a separate entity for the purposes of a lawsuit (see 3 V.I.C. § 715(b )(6)). 3 V.I.e. § 715(b) provides that 
the Board of Trustees shall have the powers and duties to "sue and be sued under the name and style of the 
Government Employees Retirement System of the Government of the United States Virgin Islands." 
.95 V.I.C. § 1421 grants the Superior Court the authority to issue writs of review ("Any party to any proceeding 
before or by any officer, board, commission, authority, or tribunal may have the decision or determination thereof 
reviewed for errors therein as prescribed in this chapter and rules of court. Upon the review, the court may review 
any intermediate order involving the merits necessarily affecting the decision or determination sought to be 
reviewed"); see also 5 V.I.C. § 1422 which requires the Superior Court to issue a writ "in all cases where there is no 
appeal or other plain, speedy, and adequate remedy, and where the officer, board, commission, authority, or tribunal 
in the exercise of his or its functions appears to have exercised such functions erroneously, or to have exceeded his 
or its jurisdiction, to the injury of some substantial right of the plaintiff." 
, " 
2019 VI Super 62 
In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 4 of22 
or tribunal to proceed in the matter reviewed according to its decision."20 V.1. R. CIV. P. 91 sets 
forth procedural rules governing writs of review where the statutes governing an administrative 
agency are silent. 
That rule provides that "[ u ]nless otherwise provided by statute, factual 
determinations are to be reviewed for clear error while legal findings, statements of law, and the 
application thereof shall be afforded plenary review," 
~9 
When reviewing factual findings under the clear error standard, the Superior Court 
"should only reverse a factual determination as being clearly erroneous if it is 'completely 
devoid of minimum evidentiary support or .. . bears no rational relationship to the supportive 
evidentiary data. "'21 When reviewing any legal findings, "[p ]lenary review means applying the 
same legal standard as the trial court to the same record"" so that in an administrative appeal, the 
Superior Court "review[s] questions of law without deference" to the administrative body." The 
Supreme Court of the Virgin Islands has explicitly rejected the application of Chevron or 
Skidmore deference" - federal doctrines applied by federal courts when reviewing the decisions 
of federal administrative agencies -
and requires the Superior Court to "address all legal 
questions de novo, without affording any deference to the interpretations put forth by an 
administrative agency."25 
DISCUSSION 
~IO 
The Government Employees Retirement System became operative on October I, 1959, to 
provide retirement benefits to government employees after stated periods of service and the 
fulfillment of certain conditions.26 "Chapter 27 Retirement of Personnel; Federal Benefits" (3 
V.I.C §§ 701-741), referred to as the "Tier I" program, generally covers employees who entered 
employment on or after September 30, 1959,27 while "Chapter 28A Tier II Retirement Benefits 
Program" (§§.3 V.I.C. §§ 750 -
7701), known as the "Tier Ir' program, largely covers those 
who became members of the Government Employees Retirement System on or after October I, 
2005.28 
II 
Each tier outlines conditions and retirement benefits for employees of the government of 
the Virgin Islands. Importantly, 3 V.I.C § 750, the section establishing the Tier II Retirement 
Benefits Program, provides that "(e) [a]ll provisions of chapter 27 [Tier I] are applicable to this 
chapter, except to the extent provided otherwise in this chapter." Thus, the provisions of the Tier 
20 5 V.I.C § 1423. 
21 In re the Estate of Small, 57 V.1. 416, 430 (V.1. 2012) (citing Rainey v. Hermon, 55 V.1. 875, 880 (V.I. 2011) 
(internal quotation marks omitted)). 
" Henry v. Dennery, 55 V.1. 986, 991 (V.1. 2011) (citing Stevens v. People, 52 V.1. 294, 304 (V.I. 2009)). 
" Milligan v. Gov't of the V.I. , 2015 V.I. LEXIS 137, ·5 (V.I. Super. Ct. Nov. 18, 2015) (citing Bryan v. Fawkes, 61 
V.I. 201, 223-228 (V.I. 2014)). 
24 Chevron, U.S.A., Inc. v. Natural Res De! Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 
134 (1944). 
" Pedro v. Ranger Am. of the V.I., Inc., 63 V.I. 511, 517 n.4 (V.1. 2015) (citing Fawkes, 61 V.1. at 223-229). 
2. 3 V.I.C § 701(a) and (d). 
27 Id. § 703. 
" Id. § 752. 
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2019 VI Super 62 
In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 5 of22 
I program apply to the Tier II program except to the extent provided otherwise by the Tier II 
program. 
~12 
First, Gallivan argues that the Board misclassified her as a Tier II member of the 
judiciary and that instead, she should be classified as a Tier I member of the judiciary for all of 
her terms.29 Second, Gallivan argues that under Tier I, she is entitled to an annuity rate of 30% 
and a contribution rate of II % for her three terms.30 Third, Gallivan argues that GERS failed to 
refund the entire amount it owed to her.3\ Fourth, Gallivan argues that she was denied due 
process before the Board.32 The Court thus evaluates whether the Board erred in classifying 
Gallivan as a Tier II member of the judiciary, whether the Board erred in determining her 
contribution and annuity rates, whether the Board erred in determining any appropriate refund to 
which she is entitled, and whether Gallivan was denied due process over the course of her 
appeal. 
I. 
Magistrate Judge Gallivan is a Tier II member of the judiciary. 
~13 
Gallivan argues that GERS erred in classifying her as a Tier II member of the judiciary, 
because when she entered the judiciary on June 29, 2009, Section 733, which covers Tier I 
members of the judiciary, expressly included magistrates, while Section 7701, which covers Tier 
II members of the judiciary, did not expressly include the words "magistrates" or "magistrate 
judges.'>33 In response, the Board maintains that Gallivan is a Tier II member of the judiciary, 
because those who become members of the judiciary on or after October I, 2005, are members of 
the Tier II Retirement Benefits Program, while those who become members of the judiciary 
between January 1977 and October I, 2005, are members of the Tier I Retirements Benefits 
Program.34 
The Board states that the retirement benefit programs are separate for regular 
employees and members of the judiciary, and that while Gallivan has credited service as a Tier I 
regular employee with respect to her prior government service and participation in the Tier I 
regular retirement program, she is a Tier II member of the judicial retirement program.35 
~ 14 
Based upon the analysis below, the Court concludes that Gallivan is a Tier II member of 
the judicial retirement program. 
A. Magistrate Judge Gallivan became a member of the Tier II judicial 
retirement program because she was appointed after October 1, 2005, 
and she was not a member of the Judiciary by previous appointment. 
29 Petitioner's Memo of Law at 2. 
30 Petitioner's Reply to GERS' Memorandum of Law with Points and Authorities, page 4. 
31 Id at 4-5. 
32 Petitioner's Memo of Law at 12· 14. 
33 Id at 7; see also Petition for Writ of Review, page 8, '1] 13. 
34 GERS Memorandum of Law with points and authorities, page 7. 
" Id at 5. 
· . 
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2019 VI Super 62 
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In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 6 of22 
'1115 
To determine whether Gallivan is a Tier I or Tier II member of the judiciary, and which 
contribution and annuity rates apply to her, the Court begins by identifying the relevant statutory 
provisions. Sections 733 (Tier I) and 7701 (Tier II) outline the retirement pension plans available 
for members of the Virgin Islands judiciary. Observing that "[t]he first step when interpreting a 
statute is to determine whether the language at issue has a plain and unambiguous 
meaning[,]"36 the Court determines whether the language of Sections 733 and 7701 has a plain 
and unambiguous meaning. "If the statutory language is unambiguous and the statutory scheme 
is coherent and consistent, no further inquiry is needed.'>37 
'1116 
Section 733 provides that "(a) Membership in the system for members of the Judiciary 
shall be optional and shall be made available to members of the Judiciary who were in service 
after January 28, 1977." 
This section further states that "(b) Each person who becomes a 
member of the Judiciary after January 28, 1977, and who is then not a participant by 
previous appointment" automatically becomes a member of the system and is subject to 
compensation deductions unless he or she files notice of election not to participate within 90 
days [emphasis added]. 
Section 733(j) provides that the provisions respecting "conditions 
goveming membership in the system, rates of contribution, conditions for retirement and rates of 
annuity" apply to all members of the Judiciary serving on and after January 28, 1977. All other 
sections of the Tier I statute conferring rights and benefits to participants in the System apply 
with equal force to members of the Judiciary.38 
17 
In contrast, Section 7701 (Tier II) provides that "(b) Each person who becomes a 
member of the Judiciary after" October 1, 200S, "who is not a participant by previous 
appointment" automatically becomes a member of the retirement system and is subject to 
compensation deductions under the Tier II statute unless he or she files a written notice of 
election not to participate within 90 days [emphasis added]. Under Section 7701(j), non-judicial 
service may not be considered service under 7701 "nor may service as a member of the Judiciary 
be considered service" for any purpose other than as specified in the section. 
'1118 
Accordingly, 3 V.I.C. § 733(b) (Tier I) and its counterpart, 3 V.I.C. § 7701(b) (Tier II) 
each provide that whether a member of the judiciary will be automatically placed in GERS 
depends upon the date on which that person becomes a member of the judiciary and whether that 
member was a participant in GERS by previous appointment. 
'1119 
Gallivan argues that the provisions of Tier II under 7701 do not apply to her because that 
section only applies to those "who are not a participant by previous appointment," and she had 
been a participant before the enactment of 7701 because of her central government service in 
several positions.39 This argument is not persuasive upon a careful reading of the statute. 
36 Brady v. Gov't of the V. I. , 57 V.I. 433, 441 (V.1. 2012). 
37 Id. 
38 3 V.I.C. § 733(j). 
J9 See Petitioner's Memo of Law at 9-10. 
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2019 VI Super 62 
In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 70f22 
'\120 
The Court observes that the word "appointment," as it appears in 3 V.I.C. § 733(b) and 3 
V.I.C. § 7701(b), is not defined in these statutes. We therefore look to Black's Law Dictionary, 
which defines "appointment" as "[t)he designation of a person, such as a nonelected public 
official, for ajob or duty; esp., the naming of someone to a nonelected public office[.j'>40 
'\121 
The term, "appointment," as used in the context of the statutes, is subject to the following 
two reasonable interpretations: broadly, as in an appointment for any non-elected public service 
position not limited to a judicial appointment, or narrowly, as in a judicial appointment only. 
Since an ambiguous word or term must be defined "with reference to how the clause is used in 
connection with the whole statute,'>4) the Court observes that Section 77010) provides: "[i)n no 
case may service other than as a member of the Judiciary be considered service for the purposes 
of this section [3 V.I.C. § 7701), nor may service as a member of the Judiciary be considered 
service for the purpose other than as specified in this section." Section 733(i) has a similar 
provision. Thus, both Sections 7701 and 733 indicate that non-judicial service may not be 
considered service for the purposes of the respective statute. Therefore, Gallivan's participation 
in GERS by a previous appointment for non-judicial service may not be considered service for 
the purposes of the Tier II judicial statute.42 
'\122 
Further, under Section 7701(b) (Tier II), a person who becomes a member of the judiciary 
for the first time on or after October I, 2005, who is not a GERS participant by a previous 
judicial appointment, is automatically placed in GERS Tier II unless he or she opts out. Because 
Gallivan became a member of the judiciary after October 1,2005, because she was not a member 
of the GERS by a previous judicial appointment, and because she did not elect not to participate 
in GERS, she became a Tier II judiciary member of the system, subject to the compensation 
deductions under 3 V.I.C. § 7701. 
Thus, according to the plain language of the relevant 
provisions, the Board correctly determined that Gallivan is a member of the Tier II judicial 
retirement program. 
B. The legislative history of 3 V.I.C. § 733 (Tier I) and 3 V.I.C. § 7701 (Tier 
II) shows that Magistrate Judge Gallivan is a member of the Tier II 
judicial retirement program. 
23 
Gallivan's position is that she should be considered a member of the Tier I judicial 
retirement program because on June 29, 2009, when she became a member of the judiciary, 
Section 733 (Tier I) expressly included magistrates, while Section 7701 (Tier II) did not 
40 BLACK'S LAW DICTIONARY 116 (9th ed. 2009). 
41 Joseph v. Roebuck, 672 F. Supp. 219, 221 (D.V.1. 1987) (citations omitted). 
42 Because Tier I and Tier" must be read to the extent not provided for otherwise in Tier" -- in other words, where 
Tier" is more specific than Tier I, Tier" controls -- Tier I is only available to those members ofthe judiciary who 
meet the requirements of3 V.I.e. § 733(a), 3 V.I.C. § 733(b), and 3 V.I.C. § 7330) but not to the extent provided for 
in 3 VIC 7701(b) and 3 VIC 7701(j). Thus, a person who becomes a member of the judiciary on or after October I, 
2005, but who, anytime between January 28, 1977, and September 30, 2005, participated in the Tier I system as a 
member of the judiciary, would remain classified as a Tier I member of the judiciary. 
, .' 
c 
2019 VI Super 62 
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In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 8 of22 
expressly include the words "magistrates" or "magistrate judges."43 Thus, Gallivan contends, on 
the date that she took office, the Legislature intended for magistrates to be included in Tier I, not 
Tier 11.44 
~24 
The Court must presume that "[ w ]hen the legislature adopts a law ... it intended that the 
entire statute be effective,''''5 "Although literal interpretation of a statute is favored, the intention 
prevails over the letter, and thus, no statute should be read literally if such a reading is contrary 
to its objective, ,,46 "[I]n that rare instance where it is uncontested that legislative intent is at odds 
with the literal terms of the statute, then a court's primary role is to effectuate the intent of [the 
Legislature] even if a word in the statute instructs otherwise."47 "'For the vast majority of 
ambiguous 
statutory 
provIsIons 
relying 
on 
legislative history to 
discern 
legislative intent should be done with caution,' since many 'men and women must vote in favor 
of a bill in order for it to become law. »>48 
~25 
Here, having determined that Section 733(i) and Section 7701(j) each resolves the 
ambiguity in the word "appointment" as used in Section 733(b) and Section 1701(b), 
respectively, the Court now turns to the legislative history cited by Gallivan to determine 
whether it indicates a legislative intent contrary to the literal terms of either Section 733 (Tier I) 
or Section 1701 (Tier II). 
~26 
The Court observes that on June 29, 2009, the date of Gallivan's appointment, Section 
733(b) (Tier J) provided that "each person who becomes a member of the Judiciary after January 
28, 1977, and who is then not a participant by previous appointment" automatically becomes a 
member of the retirement system subject to compensation deductions unless he or she opts out 
within 90 days.49 
4l Petitioner's Memo of Law at 7; Petition for Writ of Review at 8, ~ 13 ("GERS erred in concluding that Magistrate 
Judge Jessica Gallivan is subject to the Tier" Benefits Program under Title 3 VIC 7701 since this program did not 
specifically refer to magistrates or magistrate judges at the inception of her taking office or before she vested in 
retirement benefits pursuant to Title 3 VIC Section 733. In fact, this section was not enacted by the Legislature of 
the Virgin Islands until 2013."); see also id, page 9, 1115 ("GERS erred when it ignored the fact that, prior to 
amending Title 3 V.I.C. 770(1) to include magistrate judges, the Legislature had already amended Title 3 V.I.C. 
733(h) to specifically include magistrates in 2007, with Act No. 6919. Thus, there can be no question that Title 3 
V.I.C. Section 733 applied to Magistrate Judge Jessica Gallivan at the inception of her taking office in 2009, and her 
benefits and privileges provided therein vested upon the completion of her first term in 2013."). 
44 See Petitioner's Memo of Law at 7-8. 
4' Gilbert v. People of the V.I., 52 V.1. 350, 356 (V.1. 2009) (quoting State v. Halliburton, 539 N.W.2d 339, 344 
(Iowa 1995)). 
461d (internal quotations, brackets, and citations omitted); see also Coco Bros., Inc. v. Pierce, 741 F.2d 675, 679 
(3d Cir. 1984) (quoting Viacom Int'I Inc. v. Federal Communications Comm'n, 672 F.2d 1034, 1040 (2d Cir. 
1982» ("While it is true that when clear and unequivocal, the language of a statute is the best and most reliable 
index of its meaning, it is also true that the surest way to misinterpret a statute or a rule is to follow its literal 
language without reference to its purpose"). 
47 Gilbert, 52 V.1. at 357. 
481d (quoting Morgan v. Gay, 466 F.3d 276, 278 (3d Cir. 2006». 
49 Act No. 6391 § 2(1) (V. I. Reg. Sess. 2000). The text of3 V.I.e. § 733(b) remains unchanged from its original 
form found in Act No. 6391 § 2(1). 
.,' 
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2019 V[ Super 62 
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In the Maller of Magistrate Judge Jessica Gallivan v, Government Employees Retirement System 
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Memorandum Opinion, April 26, 2019 
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'\127 
Also, on the date of Gallivan's appointment, the Tier I statute, Section 733(h), provided 
that the term, Judiciary "means the judges and magistrates of the Superior Court and the justices 
ofthe Supreme Court of the Virgin Islands." 50 
'\128 
The Court notes that the text of Section 733(h) in effect on the date of Gallivan's 
appointment was a product of the 2004 amendment of the V.1. Code which established the 
Supreme Court of the Virgin Islands51 and the 2007 amendment of the Code which provided for 
the Magistrate Division within the Superior Court of the Virgin Islands. 52 
'\129 
In contrast to the language in Section 733, on the date of Gallivan's appointment, the Tier 
II judicial statute, Section 7701(b) provided that "( e )ach person who becomes a member of the 
Judiciary" after the date of enactment of the statute, October 1, 2005,53 "who is not a participant 
by previous appointment" automatically becomes a member of the retirement system unless he 
or she opts out within 90 days. 54 Also, Section 770l(i) on the date of Gallivan's appointment, 
defined the term "judiciary" as including only the Judges of the Superior Court of the Virgin 
Islands. 55 
'\130 
Thus, Gallivan is correct that on the date of her appointment, the Tier II judicial 
retirement statute did not expressly include "magistrates" but the Tier I retirement statute did. 
'\131 
Significantly, however, on November 9, 2013, the Legislature amended the Tier II 
judicial retirement statute by inserting the term, "and magistrates" after 'Judges," as well as 
adding "justices of the Supreme Court of the Virgin Islands" after "Virgin Islands" and making 
the effect ofthe statute retroactive to November 2,2005.56 The Tier II judicial retirement statute 
was thus changed due to the 2013 amendment to read, retroactive to November 2, 2005, that the 
term "judiciary", as used in § 7701(i), means the judges and magistrates of the Superior Court of 
the Virgin Islands and justices of the Supreme Court of the Virgin Islands. This statute was 
amended again in 2016 to replace the term "magistrates" with "magistratejudges.,,57 
so Act No. 6919 § 4 (V.I. Reg. Sess. 2007). 
51 Act No. 6687 § 7 (V.I. Reg. Sess. 2004). The purpose of this act was to "amend title 4, Virgin [slands Code to 
establish the Supreme Court of the Virgin [slands and to rename the Territorial Court of the Virgin [slands and for 
other purposes", and it inserted "justices of the Supreme Court" before "Judges" in 3 V.I.C. § 733(h). 
52 Act No. 6919 § 2, § 4 (V.1. Reg. Sess. 2007). The purpose of this Act was to amend the Virgin [slands Code to 
provide for a Magistrate Division within the Superior Court of the Virgin [slands, and it inserted "and magistrates" 
following "judges" in 3 V.I.C. § 733(h). Thus, Act No. 6919, which established the Magistrate Division 
contemporaneously added magistrates to the Tier [ statute just as Act No. 6687, which established the Virgin [slands 
Supreme Court, contemporaneously added '~ustices of the Supreme Court" to the Tier [ statute. 
"See 3 V.I.C. § 7S0(b) ("The second tier program is established to establish retirement benefits for the same 
purpose as stated in section 701(b) for employees who become members of the System on or after October I, 
2005"). 
54 Act No. 6794 § 29 (V.I. Reg. Sess. 2005). 
" Id. 
56 Act No. 7574 § I (a)-(b) (V.I. Reg. Sess. 2013). 
57 See N. 5, supra. 
( 
2019 VI Super 62 
In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 10 of22 
~32 
Therefore, the 2013 amendments to the Tier II Judicial Retirement statute clarify that the 
legislature intended magistrates and justices of the Supreme Court, who were appointed on or 
after October I, 2005,58 to be a part of Tier II, dispelling any doubt as to whether Tier II may 
apply to magistrate judges. Notwithstanding the Legislature's reasons for expressly inserting 
"magistrates" (later substituted as "magistrate judges") and ')ustices of the Supreme Court" into 
Section 733 (Tier I), there is no indication in the statutes or their legislative history of any 
legislative intent to abolish the application of 7701' s application to magistrate judges. Thus, 
Gallivan's argument that the legislative history places her in Tier I is unpersuasive. The plain 
language and legislative history each show that the Legislature intended for a magistrate judge 
who entered the judiciary for the first time on or after October I, 2005, to be a Tier II member of 
the judiciary. 
C. Repeal of an Act under 1 V.I.C. § SO 
~33 
Gallivan further argues that the later-enacted provisions of Section § 7701, particularly 
7701(i)-(k), cannot be applied to her on the ground that I V.I.C. § 50 prohibits the repeal or 
impairment of any acquired right without an express provision providing for the repeal. 59 That 
section provides that "(a) The repeal of any Act, part of any Act or provision of this Code does 
not release or extinguish any right acquired ... unless the repealing Act expressly so provides, 
and the Act, part or provision shall" remain "in force for the purpose of sustaining any proper 
action or proceeding for the enforcement of the right." 
~34 
The pertinent provisions of Section 7701 are described hereafter. Section 7701(i) provides 
that "the term Judiciary means the Judges and magistrate judges of the Superior Court of the 
Virgin Islands and justices of the Supreme Court of the Virgin Islands." Section 7701(j) states 
that "[i]n no case may service other than as a member of the judiciary be considered service for 
the purposes of this section, nor may service as a member of the judiciary be considered service 
for the purpose other than as specified in this section." Section 7701(k) has been deleted. 60 
~3S 
Since 3 V.I.e. § 7S0(e) (Tier II) provides that "[a]ll provisions of chapter 27 [Tier I] are 
applicable to this chapter [Tier II], except to the extent provided otherwise in this chapter [Tier 
"Though Act 7574 took effect retroactively on November 2, 2005, Act 7574 implies that the magistrate judges who 
became members of the judiciary on or after October 1,2005, are Tier II members of the judiciary, because Act 
6794, which created 3 V.I.e. § 7701 (Tier II) was approved by the Governor on November 2,2005. See Act No. 
6794 (V.1. Reg. Sess. 2005). Thus, Act 7574 took effect retroactively to the date on which Act 6794 took effect, 
October I, 2005. 
"See Petitioner's Memo of Law at 2 ("While the GERS seeks to impair MJ Gallivan's benefits and privileges by 
applying the later-enacted provisions of Title 3 VIC Section 7701, particularly Subsections (i) - (k), Title I VIC 
Section 50, prohibits the repeal or impairment of any acquired right without an express provision providing for such 
repeal. The VI Legislature did not repeal MJ Gallivan's right to pension benefits and privileges pursuant to Title 3 
VIC Section 733, and certainly did not do so before MJ Gallivan was vested, and so any application of Title 3 VIC 
7701 to MJ Gallivan is faulty and contrary to law. The Board's Decision and Order regarding MJ Gallivan's pension 
benefits (both as to annuity and contribution rates) should be overturned."). 
60 3 V.I.C. § 7701 (k) has been deleted since 2006. Act No. 6839, § 24, deleted subsections (a) and (k) (see Act No. 
6839 § 24 (V.1. Reg. Sess. 2006)). 
o 
2019 VI Super 62 
In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page II of22 
II]," this suggests that Tier II is not a repeal of Tier I but that the tiers must be construed 
together. Moreover, because this Court has determined that Gallivan is a Tier II member of the 
judiciary, Gallivan could not have acquired retirement benefits as a Tier I member of the 
judiciary. However, the Court discusses aspects of this argument below to clarify that if Gallivan 
did acquire any rights under the Tier I statute, they are not being taken from her. 
D_ Magistrate Judge Gallivan does not become a Tier I member of the 
judiciary based upon the doctrine of promissory estoppel. 
~36 
Finally, Gallivan asserts that she does not waive any arguments previously made in the 
proceedings before the Board.61 The Court observes that during those proceedings, Gallivan 
suggested that she detrimentally relied on GERS' prior communications to her that she was in 
Tier I and that her relationship with GERS was contractual. 62 
Thus, Gallivan appears to 
contend that promissory estoppel is a basis for the Court to designate her as a Tier I member of 
the judiciary. Were this Court to allow Gallivan to be classified as a Tier I member of the 
judiciary based on promissory estoppel, it would be tantamount to allowing a Virgin Islands 
agency official to legislate a judge's pension benefits in contravention of the constitutional 
principle of the separation of powers. Thus, this Court finds that Gallivan cannot secure the 
status of a Tier I member of the judiciary under the doctrine of promissory estoppel. 63 
II. 
The annuity rate for Magistrate Judge Gallivan's first term is 30% pursuant 
to 3 V.I.C. § 733 (Tier I) and 3 V.I.C. § 7701 (Tier II). 
, 37 
Gallivan's annuity for her first term is calculated by considering and reading together the 
provisions of both the Tier I and Tier II statutes. 
, 38 
Section 770I(f)(I) (Tier II) provides that "vesting in a service retirement annuity attaches 
upon completion of one term" for "all members of the Judiciary "at the time of the effective 
date" of the statute. The statute further provides that "any member is eligible for a judicial 
annuity beginning at age 50" whose rates are "determined by the Board of Trustees." 64 
~39 
The Board set an annuity rate for Tier II members of the judiciary for the first time on 
January 21, 2015, at 5% per year for each year of a term.65 And, the effective date of 3 V.I.C. § 
7701(f)(I), was October 26, 2015.66 Since Gallivan's annuity vested upon the completion of her 
61 See Petitioner's Memo of Law at 17. 
62 See e.g., Cert. Record, Document 49: September 23, 2016, Transcript of Hearing with Exhibits (Vol. III), page 
313 ("I think thalthere's an argument for detrimental reliance and estoppel, yes ... I think they should be bound by 
it ... This is a contractual relationship"). 
6J Accord, State v. Yashar, 2007 R.1. Super. LEXIS 45, at '123 (R.I. Super. Ct. Mar. 20, 2007). 
64 3 V.I.e. § 7701(1)(1). 
6S Decision and Order of the Board dated June 1,2017, at 15-16. 
66 See Act No. 7802 (V.1. Reg. Sess. 2015) ("Approved October 26,2015"). Act No. 7802 § 4(i)(I)(A) rewrote 
subsection (1)(1). See also 2 V.1.0p.A.G. 302 (The effective date oflegislation need not be specified in the bill 
unless the bill is to take effect at some time other than the date of approval by the Governor. The phrase 
"become effective upon approval by the Governor" when inserted in legislation, is superfluous). 
2019 VI Super 62 
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In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 12 of 22 
first tenn, in June 2013, and thus, prior to October 26,2015, the annuity for her first tenn vested 
before both the date that the Board set the annuity rate for Tier II members of the judiciary and 
the effective date of3 V.I.C. § 7701(f)( I). 
~40 
The tenn, "vest" is not defined in the statute, but Black's Law Dictionary defines the 
tenn "to vest" as conferring "ownership (of property) upon a person," investing a person "with 
the full title to property", or giving a person "an immediate, fixed right of present or future 
enjoyment.,,67 A "vested right" is one "that so completely and definitely belongs to a person that 
it cannot be impaired or taken away without the person's consent.,,68 A "vested pension" is one 
in which an employee (or employee's estate) has rights to benefits purchased with the 
employer's contributions to the plan, even if the employee is no longer employed" by the 
"employer at the time of retirement. ,,69 
~41 
Because a judiciary member's vested right in the retirement annuity attaches at the 
completion of each judicial tenn, and because under the definition of "vested right," an annuity 
cannot be impaired after vesting, the Board is prohibited from reducing an annuity rate after an 
annuity has vested. To reduce or to impair the annuity rate after the annuity has vested renders 
the word "vest" without meaning. Because the Board possesses a duty to distribute an annuity 
according to the rate as promised on the date that an annuity vests, and because Gallivan's 
annuity for tenn one vested at the end of that tenn in June 2013, the Board is prohibited from 
reducing or impairing the rate at which her annuity vested. 
~42 
We observe that the Tier II judicial pension statute did not provide for an annuity rate for 
Tier II members of the judiciary until the Board's January 21,2015, Resolution, which occurred 
after Gallivan's annuity had vested for tenn one. The annuity for Gallivan's first tenn was 
subject to the rate that existed in June 2013, which was the annuity rate for Tier I members of the 
judiciary. Under 3 V.I.C. § 750(e), the Tier I annuity rate applies to Tier II members of the 
judiciary except to the extent provided for otherwise in Tier II. In June 2013, the annuity rates 
for Tier I members of the judiciary were "after one (I) tenn in office, 30% of his [or her 1 
compensation while in office. "70 
~43 
Accordingly, Gallivan's annuity for her first tenn must be calculated under the Tier I 
annuity rate of 30% of her compensation for that tenn. The Board was therefore in error by 
detennining that Gallivan's annuity rate was 5% per year of her first tenn or the equivalent of 
20% of her compensation for the tenn.71 
III. 
Magistrate Judge Gallivan's annuity rate is 5% per year for her second 
term. 
67 BLACK'S LAW DICTIONARY 1699 (9th ed. 2009) . 
.. Id. at 1438. 
69 Id. at 1248. 
70 3 V.I.e. § 733(e). 
71 See Decision and Order of the Board dated June 1,2017 at 16-17. 
2019 VI Super 62 
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In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
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Memorandum Opinion, April 26, 2019 
Page 13 of22 
'\[44 
Because Gallivan's annuity rate for her second tenn vested in June 2017, after the Board 
set the annuity rate of 5% per year for Tier II judiciary members on January 21, 20 IS, Gallivan is 
entitled to an annuity rate of 5% per year for her second tenn. Thus, the Board was correct in 
concluding that Gallivan's annuity rate was 5% per year for her second tenn.72 Though it could 
be argued that under 4 V.I.C. § 122(d) and 4 V.I.C. § 72(c), an annuity rate should not be 
reduced over the course of a member's full judiciary tenn from the rate in effect at the start of 
that tenn, and here the annuity rate would have been greater under the Tier I judicial pension 
statute at the start of her second tenn, the provisions of the Tier II judicial pension statute direct 
that its tenns are controlling "[njotwithstanding any other law". "[Ajny other law" encompasses 
4 V.I.C. § 122(d) and 4 V.I.C. § 72(c). Moreover, 3 V.I.C. § 770l(f) and (f)(1) provide that 
notwithstanding any other law, a judiciary member's annuity does not vest until the end of a 
tenn. For those reasons, Gallivan is entitled to an annuity of 5% per year for her second tenn, a 
total of 20%.73 
IV. 
Magistrate Judge Gallivan's contribution rate for her first two terms was 
properly set at 11 % by the Board. 
'\[45 
Gallivan argues that her retirement benefits vested upon the completion of her first tenn 
in June 2013, prior to the amendment of the Tier II Judicial Retirement statute on November 9, 
2013, which took effect retroactively on November 2, 2005, by including magistrates within its 
tenns.74 Thus, Gallivan argues, she is entitled to the contribution rates of II % specified in the 
Tier I judicial retirement statute to give meaning to the word "vest" and to give effect to 4 V.I.C. 
§ 122( d) which prohibits the reduction of the compensation of magistrates during the tenn of 
their office.75 
'\[46 
The Court begins with an analysis of the contribution rate to which Gallivan is entitled 
for her first tenn, which spanned 2009-2013. 
First, the Court recognizes that a judge's 
"compensation" includes salary, retirement contributions, and retirement or pension benefits 
such as an annuity.76 
Second, <I V.I.C. § 122 regarding the "[sjelection, appointment, 
qualifications and salaries of magistrate judges", provides that magistrates "are judicial officers 
of the Superior Court" and their compensation "may not be reduced during the tenn of his [or 
her j office without his [or her j consent." 
72 Id. at 16. 
73 The Court does not review the propriety of the Board's setting the rate of contribution and annuity for Gallivan's 
third term. The Board rendered its decision and order on June 1,2017, Gallivan filed the petition for writ of review 
on June 21,2017 and her third term did not begin until after those dates. Accordingly, the Court does not review 
whether the Board properly set the contribution rate at 14% and the annuity rate at 3.5% per year for Gallivan's third 
term. 
74 See Petitioner's Memo of Law at 7-10 
7S Id. 
76 Joseph v. Gov't of V.I., 576 F. Supp. 1335, 1339 (D.V.1. 1983) ("A public employee's pension contributions are an 
element of compensation . ... A pension, or a retirement allowance. represents compensation, rather than a mere 
gratuity") (internal citations omitted). 
C' 
2019 VI Super 62 
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In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 14 of22 
~47 
Similarly, 4 V.I.C. § 72, on the "[s]election, appointment, qualifications and salaries of 
judges," prohibits any reduction in the compensation of a judge during his or her term in office, 
by providing that "(c) No judge's compensation shall be reduced during his [ or her] term of 
office without his [ or her] consent." 
~48 
Third, the Tier I judicial retirement statute relevant to contribution rates provides that the 
"the rate of contribution to the system on the part of a member of the Judiciary who 
becomes a member of the system shall be 11% of his [or her] annual compensation," 
[emphasis added]77 By contrast, the Tier II judicial retirement statute provides that "[t]he rate of 
contribution to the system on the part of a member of the Judiciary who becomes a 
member of the system shall be determined by the Board of Trustees," [emphasis addedfs 
Accordingly, because an increase in a judiciary member's contribution rate reduces the 
member's compensation, and because Section 72{ c) and Section 122( d) prohibit the Board from 
decreasing a magistrate's compensation during his or her term without his or her consent, the 
pension contribution rate cannot be increased during a magistrate's term. 
~49 
Here, the Board set the contribution rate for Tier II members of the judiciary for the first 
time on January 22, 2015, at 14% of their salary.79 This date fell in the approximate middle of 
Gallivan's second four-year term. In its Decision and Order, the Board concluded that the 
January 22,2015, contribution rate increase for all Tier II judiciary members could not apply to 
Gallivan until the beginning of her third term in June 2017. so The Board reasoned that the 
contribution rate of II %, which was in effect at the start of both of her first and second terms, 
was the rate to which she was entitled for those terms, because 4 V.I.e. § 122(d) required the 
contribution rate of II % to remain in effect until the completion of her second term. SI 
Accordingly, the Board was correct in concluding that the contribution rate of II % could not be 
reduced during her second term under 4 V.I.C. § 122(d). 
~50 
But the Board also reasoned that Gallivan's contribution rate for her first two terms was 
II %, since at the time of Gallivan's initial appointment, Gallivan "was informed that she would 
be paying II %, the same rate as the Tier I judges",S2 and GERS accepted the II % contribution 
rate-thus, "GERS should be estopped from ignoring that rate ... until Appellant's [Gallivan's] 
term is completed in 2017."s3 The Board explained that "[s]ince the GERS accepted Appellant's 
contribution rate at 11 % upon her initial appointment and into her second 'term' appointment, 
GERS acquiesced to that rate, which is the same as establishing a rate of 11%. "S4 
77 3 V.I.C. § 733(d). 
78 3 V.I.C. § 770(l)(e). 
79 See Decision and Order of the Board at 14. 
80 See id at 14-15. 
81 See id. at 14-17. 
" Id at 14. 
83 Id at 15. 
84/d 
2019 VI Super 62 
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Memorandum Opinion, April 26, 2019 
Page 15 of22 
~51 
This reasoning is not based on the terms of 4 V.I.C. § 770l(e), and thus, is unpersuasive. 
Eleven percent is the correct contribution rate for Gallivan's first two terms not because the 
Board "accepted" or "acquiesced" to Gallivan's contributions of 11% of her salary during her 
first two terms, but because the Board had not yet set a rate that applied to Tier II members of the 
judiciary until the middle of Gallivan's second term. 
In fact, the Board failed to set a 
contribution rate for Tier II judiciary members for more than nine years- from October I, 2005, 
until January 22, 2015. Eleven percent is the applicable contribution rate for Gallivan's first two 
terms because it was the contribution rate set for Tier I judiciary members and the Tier II judicial 
retirement statute provides that "[a]ll provisions of chapter 27 [Tier J] are applicable to this 
chapter, except to the extent provided otherwise in this chapter", and because there was no 
provision for a contribution rate for Tier II members until the middle of Gallivan's second term. 
Accordingly, the contribution rate of II % that was set for Tier I judiciary members applies to 
Gallivan's first two terms, even though Gallivan is a Tier II judiciary member. 
V. 
Magistrate Judge Gallivan is entitled to a refund of her overpayment of 
contributions with interest, and this sum should be calculated based upon a theory 
of restitution. 
~52 
The record indicates8S that the Board refunded Gallivan for GERS' overcharges over the 
period from January 2015 through the pay period ending May 27,2017,86 and for interest on the 
overcharges. Gallivan now argues that GERS failed to refund all of the monies owed to her and 
asks the Court to "require the GERS . . . to refund all monies collected in excess of II % to 
Petitioner, along with statutory interest at 9%."87 Gallivan states that GERS "withheld interest 
based on its poor performance as a system", charging her "for its poor performance in 2015."88 
~53 
Gallivan had argued before the Board that she was entitled to interest on the refund at a 
rate of9% per year under either II V.I.C. § 951(a)(I) or (2)89 which provide for interest for "(I) 
all monies which have become due" or for "(2) money received to the use of another and 
retained beyond a reasonable time without the owner's consent, either express or implied." In 
contrast, GERS argued that it could not be charged pre·judgment interest under 5 V.I.C. § 
426(b),90 which provides that notwithstanding the provisions of any law, "pre-judgment interest 
shall not be charged against the Government of the Virgin Islands on any judgment or decree for 
the payment of money by the Government." 91 
" See Appellant's June 8, 2017, Response to Order of 7'" June 2017, page I; see also Decision and Order of the 
Board dated October 13,2017, at 4. 
86 Appellant's Response to Order of7" June 2017, at 1, N. 3. 
87 Petitioner's Reply at 4·5. 
" Id 
,. See Decision and Order of the Board dated October 13,2017, at I. 
.. See id. at 1·2. 
91 5 V.I.C. § 426(b), entitled "Interest on money judgments and decrees", is found in Chapter 41, on "Judgments 
Generally" of Title 5 on "Judicial Procedure." 
2019 VI Super 62 
In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
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Memorandum Opinion, April 26, 2019 
Page 16 of22 
54 
The Board disagreed with both Gallivan and GERS and concluded that none of the 
statutes cited by the parties "adequately address[ ed] the issue before the Board"92 Instead, the 
Board concluded that the question of interest in this case was governed by 3 V.I.C. § 762(a). 
155 
In reaching the conclusion that Section 762(a) applied to Gallivan, the Board observed 
that there was no statutory provision with respect to refunding money to a member for 
overpayments in contributions.93 Yet the Board found that the language of 3 V.I.C. § 762(a) was 
close enough to apply to this matter.il4 That section provides that "[u]pon withdrawal from 
service, any member who does not have ten years of credited service and is not then eligible for a 
service retirement annuity is entitled to receive a refund of the accumulated contributions, plus 
regular interest as defined in section 751, including contributions made by the member to any 
superceded retirement system." Under Section 751 which is part of the Tier II retirement statute, 
"regular interest" means "interest accrued on a member's contributions, after the date of 
enactment of this program, compounded annually, at the rate as shall be determined by the 
Board, from the experience of the system. ,,9S The Board concluded that based on the language of 
Section 762(a), "the interest that can be awarded to Appellant on her overpayment is regular 
interest which must be determined by the Board based on the experience of the system. ,,96 
~56 
The Board then went on to analyze the meaning of the phrase "regular interest which 
must be determined by the Board based on the experience of the system." The Board observed 
that no rate for regular interest exists in Chapter 28A (Tier II) but a rate does exist in Chapter 27 
(Tier I), 3 V.I.C. § 702(k),97 which provides that "'[r]egular interest' shall mean interest at such 
rate as shall be determined by the Board from the experience of the system which shall not be 
less than two percent nor more than four percent per annum." The Board observed that "it is 
unclear whether the term 'based upon the experience of the System' means the rate of inflation, 
the annum interest based on the invest of the System, the System's rate of investment return or 
some other measure."98 The Board used the System's investment rate of return as a measure of 
the regular interest on Gallivan's overpayment of contributions to the System.99 
92 See Decision and Order of the Board dated October 13, 2017, at 2-4. 
" Id. at 1-3 . 
.. See id 8t 3 ("The Board has decided that Appellant should be awarded a refund based on her overpayment of 
contributions to the system. While the statute is silent on the amount of interest that is to be paid, based on an 
overpayment of contributions, 3 V.I.C. § 762(a) provides that upon withdrawal of service, any member who is not 
then eligible for a service retirement annuity is entitled to receive a refund ofthe accumulated contributions, plus 
regular interest as defined in section 751 . The statute does not contain any other provisions that deal with the issue 
of calculating interest other than the type that is outlined in § 762(a). Because the statute does not provide for any 
other method of calculating interest, the standard outlined in 3 V.I.e. § 762(a) for interest payments on a refund 
seems appropriate to be followed here. "). 
os 3 V.I.e. § 751 (4). 
96 Decision and Order of the Board dated October 13, 2017, at 3. 
07 See id at 3. 
Og See id at 4. 
99 /d 
2019 VI Super 62 
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In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
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Memorandum Opinion, April 26, 2019 
Page 170f22 
~57 
Ultimately, the Board concluded that Gallivan was entitled to a total refund of 
$10,809.60, consisting of Gallivan's overpayment ("accumulated contributions" I 00) of $9,590.48 
and interest in the amount of$I,219.12. 101 The Board calculated the $1,219.12 in interest based 
upon the system's "investment rate of return" as "determined by the System's Investment 
Officer."102 The Board provided a chart in its October 13, 2017, Decision and Order, which 
indicates that GERS lost $70.96 on Gallivan's overpayments in 2015 due to an investment rate of 
return of -2.1% but gained $517.25 on the overpayments in 2016 due to 7.2% in accrued interest 
and gained $772.83 on the overpayments in 2017 due to 7.7% in accrued interest. 103 The Board 
added together $772.83 and $517.25 for a sum of $1,290.08, from which it subtracted $70.96, for 
a difference of $1,219.12. 104 
It was this amount of interest added to the principal of the 
overpayment that was refunded to Gallivan. 
,58 
The Board correctly observed that no interest rate for contribution overpayments is 
provided for in Chapter 27 (Tier I) or Chapter 28A (Tier II). While 3 V.I.C. § 762, entitled 
"Refunds", provides conditions for refunds for accumulated contributions made by a member of 
the System, nothing in that section deals with returns of overpayments with interest to the 
System. Section 762 deals only with members who are withdrawing from service who have less 
than ten years of credited service and who are then not eligible for a service retirement 
annuity. lOS Section 762(a) thus indicates that a member who withdraws from servicel06 107, and 
who does not have ten years of credited service lO8, and who, at the time of withdrawal from 
service, is not eligible for a retirement annuity, is entitled to a refund for accumulated 
contributions, plus regular interest. Section 762(a) clearly does not deal with the situation in this 
case regarding the interest rate to be applied to an overpayment by a member of the System. 
Accordingly, the Board erred in determining that the refund rate described in 3 V.I.C. § 762(a) 
applies to a refund for a member's overpayments in contributions to GERS due to GERS' 
overcharges. 
~59 
Although the rate of Gallivan's interest on her overpayment to GERS is not calculated 
pursuant to 3 V.I.C. § 762(a), Gallivan is entitled to restitution from GERS for her 
overpayments. Here, GERS has shown that it accrued interest on Gallivan's overpayments, and 
thus, the Court looks to whether Gallivan is entitled to an award of interest on a restitution 
100 3 V.I.c. § 702(1) (defining "accumulated contributions" in the "Definitions" section of Chapter 27 (Tier I». 
"Accumulated contributions" are "the amounts contributed by a member as a deduction from compensation, without 
interest." 
101 Decision and Order of the Board dated October 13, 2017, at4. 
10' ld 
10J Id. 
104 Id. 
10> 3 V.I.C. §762(a). 
106 3 V.I.C. § 702(r) "Withdrawal from service" means "complete severance of employment ofany member as an 
employee of the employer by resignation, discharge, dismissal or death." 
107 3 V.I.C. § 702(g) "Service" means "employment as an employee of the employer for salary, wages or 
compensation. " 
'" 3 V.I.C. § 702(j) "Credited service" means "prior service and membership service". 
2019 VI Super 62 
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In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX· 17·CV·269 
Memorandum Opinion, April 26, 2019 
Page 18 of 22 
theory. Restitution is measured by the defendant's unjust gain, not by the plaintiffs loss. 109 
Restitution's central purpose "is to determine the amount by which the wrongdoer has been 
unjustly enriched, and then to make him disgorge that amount." 110 Further it is not necessary to 
show proof "that the plaintiff was damaged, much less the amount of any damage.,,111 
~60 
In Walters v. Walters, 60 V.I. 768 (V.I. 2014), the Virgin Islands Supreme Court held that 
in order to recover for unjust enrichment, a plaintiff must prove "(1) that the defendant was 
enriched, (2) that such enrichment was at the plaintiff's expense, (3) that the defendant had 
appreciation or knowledge of the benefit, and (4) that the circumstances were such that in equity 
or good conscience the defendant should return the money or property to the plaintiff."112 
~61 
Here, the parties have satisfied the elements of unjust enrichment. GERS was enriched 
by the overpayments in the amount of $9,590.48 and by the interest that GERS gained on the 
overpayments in the amount of$I,290.08 (from $517.25 in interest gained in 2016 and $772.84 
in interest gained in 2017).113 Furthermore, GERS' enrichment was at Gallivan's expense. 
GERS knew about the overpayments and corresponding gains in interest; and in equity or good 
conscience, GERS should have returned the overpayments with gains in interest to Gallivan. 
Thus, although the parties focused narrowly on the pension statutes in the underlying record and 
in their briefs before this Court, and failed to discuss the equitable remedy of restitution, the 
record shows that the facts in support of restitution have already been established by the parties. 
Therefore, the Court will order the return of Gallivan's overpayments in contributions on a 
theory of restitution, and not based upon the pension statutes. 
~62 
On a theory of restitution, Gallivan is entitled to a refund for contribution overpayments 
and GERS' interest gains- but not losses - on those overpayments. The Board refunded only 
$10,809.60, because it included GERS' loss of $70.96 in interest on Gallivan's overpayments in 
2015. Because the Board should have refunded $10,880.56 to Gallivan, and not $10,809.60, the 
Court will order the Board to pay an additional sum of $70.96 to Gallivan. 
10' See United States ex rei. Taylor v. Gabelli, 2005 U.S. Disl. LEXIS 26821, at *20 (S.D.N.Y. Nov. 3, 2005) 
("Damages differs from restitution in that damages is measured by the plaintiffs loss; restitution is measured by 
the defendant's unjust gain" (quoting Dan B. Dobbs, Law of Remedies: Damages, Equity, Restitution § 3.1, 208 (2d 
ed. 1993)). 
110 Citronelle.Mobile Gathering, Inc. v. Edwards, 669 F.2d 717, 722 (Temp. Emer. Ct. App. 1982); see generally id. 
at 722·723 ("Restitution is generally awarded only in order to deprive the defendant of enrichment obtained at 
the plaintiffs expense . .. the general requirement does not mean that the gain to the defendant need be equated to 
the loss of the plaintiff, nor indeed that there need be any loss to the plaintiff except in the sense that a legally 
protected interest has been invaded") (citing Restatement of Restitution, Sec. I, Comment e (1937». 
Ili/d. 
112 Walters v. Walters, 60 V.1. 768, 776 (V. I. 2014). 
III A negative rate of return on interest is not a gain, and thus, the Court does not include the loss in interest of 
$70.96 based upon Gallivan's overpayments in 2015 in its calculation of any interest that GERS gained on 
Gallivan's overpayments. 
2019 VI Super 62 
c 
In the Matter 0/ Magistrate Judge Je,ssica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 190f22 
VI. 
Magistrate Judge Gallivan failed to make an argument in support of her 
assertion that GERS' adjustments to contribution and annuity rates are 
unconstitutional. 
"J63 
The Court observes that in her closing brief before the Board, Gallivan asserted that "the 
decision of GERS to make adjustments to contribution rates on a wholesale basis for the 
members of the judiciary based on Title 3 V.I.C. 7701, as well as applicable annuity rates, is 
unconstitutional under the Revised Organic Act, as amended."114 But in that brief and in her 
briefs submitted to this Court, Gallivan failed to cite any case law in support of her assertion and 
failed to cite to any potentially relevant provisions in the Revised Organic Act, and thus, has not 
challenged the constitutionality of a specific provision(s) in 3 V.LC. 7701 (Tier II) with respect to 
a specific provision(s) in the Revised Organic Act. "[I]n general, the Court will not make a 
[party]'s arguments for him [or her] when he [or she] has failed to do SO,,,115 and the Court 
declines to make any constitutional arguments on Gallivan's behalf. 
VII. 
Magistrate Judge Gallivan was not denied procedural due process. 
64 
Finally, Gallivan argues that the hearings before the hearing examiner appointed by the 
Board were procedurally flawed, depriving her of due process.116 She does not cite any case law 
or statutes to support her argument that she was deprived of due process. But, she asserts that 
Administrator Nibbs provided her with the rules and regulations governing appeals before the 
Board, and that those rules and regulations appeared to have not been signed by anyone. 117 
Gallivan contends that accordingly, the Board has not "properly promulgated rules and 
regulations to govern the appeals before it".118 Further, Gallivan argues that over the course of 
the hearings, the Board and the hearing officer violated Rules Nos. "715-I(e)", 715-6", "715-
8(a)," and "715-13" of the rules and regulations governing appeals before the Board. 1 19 
114 See Cert. Record, Document 63: Appellant's April 3, 2017, Closing Brief, page 13. 
115 Joseph v. Joseph, 201S V.1. LEXIS 43, *S (V. I. Super. Ct. Apr. 23, 201S) (citing People o/the Virgin Islands v. 
Penn, S3 V.1. 31S, 318 (V. I. Super. Ct. 2010» (denying a defendant's motion to dismiss when he did not present any 
argument or case law supporting his claim of discrimination) and Schneider's Dairy v. Servo Pers. & Emples .. 
Teamsters Local Union No. 205,2013 U.S. Dist. LEXIS 1743S0, *S-6 n.1 (W.O. Pa. Dec. 10,2013) ("It is not the 
Court's job to research and construct legal arguments open to parties ... In order to develop a legal argument 
effectively, the facts at issue must be bolstered by relevant legal authority; a perfunctory and undeveloped assertion 
is inadequate") (internal citation omitted»; see also In re Catalyst Litig., 2015 V.1. LEXIS 14S, *3-6 n. 12 (V.I. 
Super. Ct. 2015) ("The Supreme Court of the Virgin Islands has established that in order for a motion to be properly 
before the court, parties must support their arguments by citing the proper legal authority, statute or rule") 
(citing Bernhardt v. Bernhardt, SI V.1. 341, 34S·346 (V.1. 2009); Davis V. Varlack Ventures. Inc., 59 V.I. 229, 238-
239 (V.I. 2013»; Simpson v. Golden, S6 V.1. 272, 280 (V. I. 2012) ("The rules that require a litigant to brief and 
support his arguments .. . before the Superior Court, are not mere formalistic requirements. They exist to give the 
Superior Court the opportunity to consider, review, and address an argument."). 
116 See Petitioner's Memo of Law at 12-16. 
' " Seeid at 12. 
"'ld 
" ' ld 
2019 VI Super 62 
In the Maller of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 20 of22 
'1165 
The Court's research reveals that Rules Nos. "7l5-1(e)", 715-6", "715-8(a)", and "715-
13" do not exist in the Virgin Islands Code or the Virgin Islands Rules and Regulations, nor do 
any rules or regulations governing appeals before the Board, confirming Gallivan's assertion that 
the Board has not officially promulgated such rules. But while the Board had no promulgated 
rules for administrative hearings in effect over the course of Gallivan's hearings, and still lacks 
such rules, the Court is not aware of any authority requiring procedural rules governing a hearing 
before a Virgin Islands agency to be officially promulgated to allow an agency to comply with 
procedural due process requirements. 
'1166 
In order to be effective, agency regulations must be filed and published in accordance 
with 3 V.I.C. § 933.120 Further, the Virgin Islands Codel21 defines the term, "regulation" as 
"every rule regulation or order, amendments thereto or revocations thereof, made by any agency, 
except a rule, regulation or order which - (I) relates only to the organization or internal 
management of the agency; or ... (3) is directed to a specifically named person or group of 
persons and does not apply generally throughout the Virgin Islands." 
'1167 
Because the rules governing the appeals before the Board are directed only to petitioners 
before the Board and do not apply generally throughout the Virgin Islands, the Court finds that 
those rules do not constitute "regulations" within the meaning of 3 V.I.C. § 911 (b). Thus, the 
fact that the Board has not promulgated rules for appeals before it in accordance with 3 V.I.C. § 
913 and 3 V.I.e. § 933 does not render those rules ineffective. 
'1168 
The fundamental procedural safeguards that were required to protect Gallivan's interests 
at stake in the hearings were notice and an opportunity to be heard in a meaningful manner. 
"When an agency exercises adjudicatory authority, it has a duty to comply with the rules of due 
process." 122 
Though the procedures may vary according to the interest at stake, "[ t ]he 
fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and 
in a meaningful manner. ",123 "The essential elements of due process of law are notice and 
opportunity to defend," and "[i]n determining whether such rights were denied, we are governed 
by the substance of things and not by mere form."124 
'1169 
Gallivan's position is that she was not afforded due process for the following reasons: (1) 
the Chairman of the Board never appeared at or presided over any of the hearings in violation of 
Rule No. 715-6, and instead, a board member presided over the hearing as the hearing officer, 
over Gallivan's objections; I2S (2) that the court reporter, as opposed to the Chairman of the 
120 Further, 3 V.I.e. § 913, entitled "Approval by the Governor; review by the Legislature; public notice", outlines 
the procedures for the filing and publication of regulations. 
121 3 V.I.e. § 911(b). 
122 Gov't of the V.1. v. Caneel Bay Plantation, 5 V.1. 655, 661 (V. I. Super. Ct. 1966). See also In re Amendments to 
the Virgin Islands Supreme Court Internal Operating Procedures and Style Guide, S. Ct. Prom. No.2014-003, at A-
7 (V. I. Mar. 14,2014). 
123 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 
'24 Estate ofSkepple v. Bank of Nova Scotia, 2018 V.1. Supreme LEXIS 24 (V.1. 2018) (quoting Simon v. Craft, 182 
U.S. 427, 436 (1901) (citations omitted). 
12' See Petitioner's Memo of Law at 12. 
(' 
2019 VI Super 62 
In the Maller oj Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 21 of22 
Board, swore in the witnesses at the hearing, also in violation of Rule No. 715-6, over Gallivan's 
objections; 126 (3) that "most (if not all) of her [the hearing officer's] rulings were inappropriately 
and unlawfully made by Board Counsel" and that the Board Counsel "also inappropriately asked 
many questions of witnesses and presumed an active role in the hearing process" and "pointed to 
'cue cards' to either dictate, persuade or inform the hearing officer how to rule";127 that (4) the 
hearing officer allowed records and testimony that were not part of the record below, "such as 
the written opinion and testimony of Rocky Joyner", in violation of Rule 715-I(e), over 
Gallivan's objections; 128 and that (5) because Rocky Joyner testified at the hearing via telephone, 
Gallivan was disadvantaged by her inability to see or hear him in person. 129 
70 
In response, the Board argues that Gallivan received notice of the hearings, participated 
in all of the hearings, which comprised more than twenty hours, and presented a twenty-two-
page closing brief after the hearings concluded.130 
71 
The record reflects that Gallivan was present at all of the hearings, thus indicating that 
she received notice of the hearings. Further, the record is devoid of facts showing that Gallivan 
was denied a meaningful opportunity for her arguments to be heard at the hearings. Gallivan 
fails to demonstrate how any of the violations of rules governing appeals before the Board are 
within the scope of due process protection. Gallivan does not show how the Chairman's absence 
from the hearings and failure to swear in witnesses violated her due process rights. Notably, the 
Board asserts that the Chairman recused himself from presiding at the hearing, because he is a 
personal friend of Gallivan. 131 
'1172 
Regarding the hearing officer's rulings, Gallivan fails to point to any specific rulings, 
specify under which rules or laws the rulings of the hearing officer were inappropriately or 
unlawfully made, or otherwise indicate how the hearing officer's rulings denied Gallivan a fair 
hearing. 
,/73 
With respect to Gallivan's objection that the Board permitted the expert testimony of 
Joyner, who was not an appellant, appellee, or authority-below, Gallivan cites Rule No. 715-13 
which provides that "[ n]o person may participate in the hearing proceeding who is not an 
appellant, appellee, or authority-below. Any other person, with the permission of the Board may 
address the Board, on any matter before it, but only after the record proceeding has been 
c1osed."132 But Gallivan does not establish how a violation of Rule No. 715-13 is within the 
scope of due process protection. 
Further, the Board's June I, 2017, Decision and Order, 
"6 Id 
127 Id al 12-13. 
"'Id. at 13. Rocky Joyner is a Seagal Advisors Actuary Consultant (see Decision and Order of the Board daled June 
1,2017 at 6). 
029 Id. Gallivan also asserts that U[tJhe Rules and Regulations do not permit anyone to attend by phone" without 
ciling to a panicular rule. 
1)0 See GERS' Memo of Law at 11-13. 
1)0 See id at II. 
Oll See Petitioner's Memo of Law at 13. 
.. 
2019 VI Super 62 
In the Matter of Magistrate Judge Jessica Gallivan v. Government Employees Retirement System 
Case No. SX-17-CV-269 
Memorandum Opinion, April 26, 2019 
Page 22 of22 
indicates that Joyner's testimony regarded the funding of pensions and was not essential to the 
Board's method for calculating Gallivan's annuity, but rather was superfluous to its Decision and 
Order. 133 Similarly, Gallivan asserts that Joyner's testimony was "erroneous and irrelevant" to 
her case. 134 
~74 
In addition, Gallivan critiqued Joyner's opinion and methodology.135 Gallivan's closing 
brief before the Board thus demonstrates that Gallivan had the opportunity to review and respond 
to Joyner's opinion prior to the issuance of the Board's June I, 2017, Decision and Order. 
Gallivan also does not demonstrate how she was disadvantaged, and moreover, denied a fair 
hearing, because the Board permitted Joyner to testify via telephone and did not require Joyner to 
testify in person. 
Accordingly, the Court does not find that Gallivan was denied due process 
before the Board. 
CONCLUSION 
~75 
For the foregoing reasons, the Court finds that Gallivan is a Tier II Member of the GERS 
judicial retirement program, and that she is entitled to an annuity of 30% of her salary for her 
first term and 5% per year of her salary for her second term or 20%. The Board was correct in its 
determination that the contribution rate for Gallivan's pension should have been II % of her 
salary for the first two terms, but this rate is based upon a reading of the applicable statutes, and 
not on promissory estoppel or any contract theories. The Court also concludes that Gallivan's 
refund and interest on that refund should be calculated on a theory of restitution, and not based 
upon the statute that was used by the Board. The Court found that using the correct theory to 
calculate the refund, an additional sum of $70.96 was owed to Gallivan. Gallivan failed to make 
an argument in support of her assertion that GERS' adjustments to contribution and annuity rates 
under 3 V.I.C. 7701 (Tier II) are unconstitutional. Finally, Gallivan was not denied due process 
during the course of the proceedings before the Board. 
~76 
An Order consistent with this Memorandum Opinion shall follow. 
Dated: April~ 2019 
. JAMES S. CARROLL 
ENIOR SITTING JUDGE OF THE 
SUPERIOR COURT 
OF THE VIRGIN ISLANDS 
III See Decision and Order of the Board dated June 1,2017, at 15-16. 
134 See Petitioner's Memo of Law at 13. 
'" See Appellant's Closing Brief at 15-16.