eligible to contribute an additional $ 5,507.00 toward restoration of the pension benefits lost during the period of discrimination.
The speciousness of this argument is demonstrated by defendants' attorney's postulation, at oral argument and in opposition to plaintiff's supplemental exhibits, that under this "implementation procedure," plaintiff will be able to restore her lost benefits in a maximum of twenty-four years, rather than thirty-six years as previously stated (unless, of course, plaintiff leaves government service or dies). Clearly, requiring future contributions, whether over the next one year or twenty years, in order to restore pension benefits lost due to the defendants' blatant discriminatory conduct since 1985, will not make the plaintiff whole. See Saulpaugh, 4 F.3d at 145 (purpose of Title VII award is to make plaintiff whole); Rios, 860 F.2d at 1175 (same); 5 C.F.R. § 1605.9(a)(1996) (purpose is to make employee whole with regard to Thrift Savings Plan). To even make the argument that future contributions, whether over the next thirty-six or twenty-four years, will make the plaintiff whole is unquestionably ludicrous and borders on insolent.
In this case, for example, plaintiff would lose over $ 30,000 in pension benefits, representing her contributions and the INS contributions currently due, should she decide to leave federal government service. The same loss would occur should plaintiff meet an untimely death. It is utter nonsense that plaintiff, facing a loss of approximately $ 30,000, has nonetheless been made whole.
The admonishment of the regulations, § 1605(d), that the agency must ensure that contributions do not exceed the annual maximum under the Internal Revenue Code must intend that the agency calculate the contributions for each and every year which the back pay award covers and ensure that the contribution for each year does not exceed the maximum.
This interpretation is further supported by other sections of the regulations, which provide that the employing agency calculate contributions to the TSP relating to retroactive pay adjustments, such as back pay awards, and forward payment records for each and every pay period for which a TSP contribution should have been made, so that the appropriate contributions and lost earnings may be deposited in the TSP participant's account. See, e.g., 5 C.F.R. §§ 1606.5(a)(1)-(4), 1606.6 (§ 1606.5(a)(1)-(4) apply where agency delays paying employee), 1606.8(a)(lost earnings record must include paydate on which contributions should have been made), 1606.11 (agency required to submit separate lost earnings report for each pay period affected by retroactive pay adjustment and attendant contributions, including agency basic, employee, and agency matching), 550.805(a)(1)(employee deemed to have performed the work during the period covered by the corrective action).
Additionally, a necessary premise to defendants' argument is that plaintiff's back pay award be considered as having been earned in the single year in which it was paid. Considering the back pay award as earned in that single year yields even further detriment to the plaintiff, who has already spent twelve years attempting to remedy the defendants' discriminatory conduct. For example, plaintiff's old age benefits under the Social Security system may be significantly reduced. See 42 U.S.C.A. §§ 402, 415 (Supp. 1997). Plaintiff may also lose eligibility for Social Security Disability benefits or may be eligible only for reduced benefits. See id. §§ 413, 415, 423. Conversely, considering the back pay award as earned in a single year may result in a windfall for plaintiff when her FERS retirement annuity is calculated. See 5 U.S.C.A. §§ 8401(3), 8415(a)(1996).
Accordingly, in order to comply with the May 1996 order defendants must calculate the amount of contributions plaintiff would have made from 1987 to 1989 and from 1991 to 1996, absent discrimination. Defendants must immediately deposit these contributions in plaintiff's TSP account. See 5 C.F.R. § 841.505(c). Further, defendants must calculate the amount of matching contributions the INS would have made from 1987 to 1989 and from 1991 to 1996, and immediately deposit these contributions. Upon receipt of a record showing the amount of plaintiff's contributions, plaintiff must forward that amount, less the amount withheld by payroll deduction in 1996 (approximately $ 7,900.00), to the INS. This amount is deemed to have been withheld from her back pay award.
Third, defendants have not deposited the earnings on the contributions to the TSP account which plaintiff has lost due to the fact that the discrimination prevented her from making those contributions in the past. Defendants do not argue that lost earnings are not due. (See Defs.' Opp'n.) Indeed, the INS, through Ms. Christie, indicated to plaintiff that the appropriate calculations and deposits, including lost earnings, would be made as set forth in the May 1996 order. (See Kahmann Aff. filed Jan. 2, 1997, Ex. 3.) Accordingly, defendants must deposit in plaintiff's TSP account the lost earnings attributable to the retroactive TSP contributions in order to comply with the May 1996 order.
Plaintiff submitted as supplemental exhibits 1-3 calculations of lost earnings for 1987 through 1996 based upon varying fund allocations. Defendants argue, however, that the right to elect TSP fund allocations was not conferred by the original judgment. (See Defs.' Opp'n.) Further, in responding to supplemental exhibits 1-3, they state that the time periods of contributions were incorrect and that the regulations, 5 C.F.R. § 1606.11, limit interest lost to the rate of return made by the G fund, while plaintiff's exhibits showed a transfer of contributions among the C, G, and F funds throughout the applicable time periods.
Ordinarily in the event of a separation from service due to unwarranted personnel action, lost earnings would be calculated based upon the latest TSP-1 on file prior to the separation, unless the employee subsequently authorized an interfund transfer, which would then control. 5 C.F.R. §§ 1605.4, 1606.11(c), 1606.13(g). In this case, however, the plaintiff did not have an effective TSP-1 at the time of her unwarranted separation from service.
Shortly after the May 1996 order was issued, Ms. Christie provided to plaintiff a "TSP-1" form upon which to make her initial designation of investment funds, an historical TSP activity report for the appropriate time periods showing each fund's rate of return, and a worksheet upon which she could designate fund selection changes. (See Kahmann Aff. filed Jan. 2, 1997, Ex. 3.) This worksheet included a space for quarterly designations for the years 1987 through June of 1995, and for six designations per year beginning July 1995 (the instructions indicated that after July 1995 monthly changes of designation could be made).
Id. Presumably, lost earnings would then be calculated based upon the earnings of each fund during the time periods plaintiff had designated contributions allocated to each fund. Thereafter, however, the INS has ignored the lost earnings portion of the restoration of plaintiff's TSP pension benefits.
Although plaintiff was led by the INS to believe that she would be permitted to review the fund activities for the years covered by the back pay awards, and then designate the fund(s) which would yield her the best lost earnings award, the regulations precluding such retroactive fund selections are persuasive. See 5 C.F.R. § 1606.11(c). Thus, lost earnings must be calculated based upon the interest rates earned by the G fund over the appropriate time periods, and the lost earnings records provided by INS must so indicate. INS must deposit those lost earnings in plaintiff's TSP account.
In proper cases a party failing to comply with a court's judgment may be held in contempt. Fed. R. Civ. P. 70; Shillitani v. United States, 384 U.S. 364, 370, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966)(inherent power of court to enforce its lawful orders with civil contempt). Where the order is clear and unambiguous, clear and convincing proof of noncompliance is provided, and the non-complying party has failed to diligently attempt compliance in a reasonable manner, the non-complying party may be held in civil contempt. SEC v. Oxford Capital Sec., Inc., 794 F. Supp. 104, 106 (S.D.N.Y. 1992).
In this case, the May 1996 order was clear and unambiguous, with the possible exception that lost earnings on restored pension benefits were not specifically mentioned. With respect to lost earnings, however, a short review of the applicable regulations makes clear that lost earnings must be paid in order to restore plaintiff's pension benefits, which she lost as a result of discrimination by the INS. Next, there is no question but that there is clear and convincing proof that the defendants have not fully complied with the May 1996 order.
There is no way it could be said that defendants were diligent in attempting to comply with the portions of the May 1996 order at issue here. While defendants did timely provide plaintiff's performance appraisals and officer corps ratings, they have failed to comply with restoration of pension benefits in many respects, as discussed above.
Not only did defendants clearly fail to comply with the May 1996 order, they come now in opposition to plaintiff's petition for mandamus with arguments which are nothing short of frivolous and unwarranted by law. For example, defendants argued that the petition should be stricken on the grounds that it should have been filed pursuant to Federal Rule of Appellate Procedure 21. Their other grounds for striking the petition are baseless as well, resting on the underlying fallacious supposition that the court has no power to enforce its orders. Another example is defendants' absurd argument that contributing to plaintiff's pension plan over the next twenty-four years to make up the loss resulting from the discrimination will make her whole.
Additionally, defendants and the plaintiff have failed to adequately point out applicable regulations which were necessary to the resolution of the petition. In the defendants' case this failure may be explained by the fact that, at least to some extent, the regulations were contrary to defendants' position. For example, the regulation specifying how to calculate lost earnings on pension benefits could be seen as contrary to defendants' failure to calculate and deposit lost earnings. It is also of some concern that defendants' brief devoted only two pages to pension benefits, even though this issue constituted the major portion of the non-compliance of which plaintiff complained.
The court is cognizant of plaintiff's pro se status. While some latitude must necessarily be given to pro se litigants, failure to point out relevant authority cannot be excused, and may result in failure to obtain a remedy rightly due. Litigants', in this case both defendants' and plaintiff's, failure to properly brief issues, provide relevant authority, and refrain from making frivolous arguments severely taxes the already overburdened court system. This is so because despite the litigants' failures, blatant though they may be, a decision must be made which provides plaintiff her appropriate remedy, to be made whole, without bestowing upon her an undeserved windfall.
While the elements of civil contempt are satisfied as to the defendants, in the court's discretion sanctions will not be imposed due to the overall circumstances in the case. Both sides have provided little or no guidance in interpreting and applying the somewhat complicated regulations and procedures required to implement the May 1996 order. In essence, the court has been left to perform tasks more properly left to INS personnel and the plaintiff. The intricate details of making the plaintiff whole should not be the responsibility of the court. However, because the parties have failed so miserably, the court will again set forth, in painstaking step by step detail, what the INS must do in order to bring this matter to closure.
Let there be no mistake, however, that should defendants fail to comply with this order, even in the most minor detail, they will be held in contempt and severe sanctions will be imposed. In a like vein, any future petitions by the plaintiff which are found to be frivolous will also be subject to appropriate civil penalties.
Plaintiff's petition for a writ of mandamus is properly before the court. An award of night differential and overtime pay would constitute an alteration of the judgment and therefore would be improper. Defendants are in compliance with the May 1996 order with regard to plaintiff's employment documents. Defendants are not in compliance with the May 1996 order with regard to full restoration of plaintiff's FERS and TSP pension benefits. Although defendants qualify as civil contemnors, no sanctions will be imposed at this time.
Accordingly, it is
1. plaintiff's petition for a writ of mandamus is DENIED as to night differential pay, overtime pay, and employment documents; and it is GRANTED in all other respects as set forth below;
2. defendants prepare a payroll report setting forth a basic pay amount for each and every pay period beginning with the pay period ending May 26, 1985, through September 1989;
and beginning with December 13, 1991, through June 30, 1996;
3a. defendants record on each payroll report for January 1, 1987, through September 1989, and December 13, 1991, through June 30, 1996, the following contributions to plaintiff's FERS basic annuity:
i. the amount of the INS agency contribution calculated pursuant to 5 C.F.R. § 841.413;
ii. the amount of plaintiff's employee contribution calculated pursuant to § 841.503;