Amicus Curiae Brief — Harper v. Virginia Dept. of Taxation

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No. 91-794

| vl. tT 22

IN THE

SUPREME COURT OF THE UNIT eh siieg

OCTOBER TERM, 1992

HENRY HARPER, ET AL.,

Petitioners,

VS.

VIRGINIA DEPARTMENT OF TAXATION,

Respondent.

On Writ of Certiorari to the

Supreme Court of Virginia

BRIEF AMICI] CURIAE FOR DESIGNATED

FEDERAL RETIREES IN KANSAS, ARKANSAS,

NORTH CAROLINA, MONTANA, SOUTH CAROLINA,

NEW YORK, UTAH, ALABAMA AND ARIZONA

— IN SUPPORT OF PETITIONERS

Of Counsel: John C. Frieden

Kevin M. Fowler*

Kenton C. Granger FRIEDEN, HAYNES & FORBES

Raymond L. Dahlbert 400 S.W. 8th, Suite 409

NIEWALD, WALDECK Topeka, KS 66603

& BROWN, P.C. (913) 232-7266

9401 Indian Creek Parkway

Corporate Woods, Bidg. 40

Suite 550 * Counsel of Record for

Overland, Park KS 66225 Amici Curiae

(913) 451-1717

[Additional Counsel Listed on Inside Cover]

PAREGON PRINTING & STATIONERY COMPANY, IWC.

- .

Roger M. Theis

9411 Shannon Way Court

Wichita, KS 67206

(316) 634-0418

Carrold E. Ray

HILBURN, CALHOON,

HARPER, PRUNISKI

& CALHOUN, LTD.

8th Fir., Twin City Bank Bidg.

P.O. Box 5551

North Little Rock, AR 72119

(501) 372-0110

G. Eugene Boyce

Donald L. Smith

WOMBLE, CARLYLE,

SANDRIDGE & RICE

P.O. Box 831

Raleigh. NC 27602

(919) 755-2100

Edmund F. Sheehy, Jr.

CANNON & SHEEHY

2031 Eleventh Avenue

P.O. Box 5717

Helena, MT 59604

(406) 442-9930

Brian A. Luscher

Robert A. Jensen

BONN, LUSCHER, PADDEN

& WILKINS, CHTD.

804 North Second Street

Phoenix. AZ 85004

(602) 254-555;

Gene M. Connell, Jr.

Edward T. Kelaher

ELAHER, BASS &

CONNELL, P.A.

P.O. Box 14547

Surfside Beach, SC 29587

(803) 238-5648

Rudolph W. Guiliani

Robert Velez

ANDERSON, KILL, OLICK

& OSHINSKI, P.C.

666 Third Avenue

New York, NY 10017

(212) 840-0700

Michael F. Fitzgerald

PHELAN & COSTELLO P.C.

One Penn Plaza, Suite 4310

New York, NY 10119

(212) 868-3000

Richard W. Jones

Jack C. Helgesen

LYON, HELGESEN,

WATERFALL & JONES

4768 Harrison Boulevard

Ogden, UT 84403

(801) 479-4777

E. Mark Ezell

John W. Sharbrough III

EZELL & SHARBROUGH

150 Government Street

Mobile, AL 36602

(205) 432-1413

J. Doyle Fuller

P.O. Box 23458

Montgomery, AL 36123

(205) 270-0020

QUESTION PRESENTED

Whether this Court's decision in Davis v. Michigan

Department of Treasury, 489 U.S. 803 (1989), may under any

circumstance be “applied” nonretroactively so as to defeat federal

retirees’ entitlement to refunds of unconstitutional state taxes

imposed upon their federal annuities.

TABLE OF CONTENTS RT oA, AT Bcc p a sabe Behe! 30

QUESTION PRESENTED. oo fae ; RT ET eas Pathe aah ee, SRM ee Ae la

TABLE OF AUTHORITIES. «as nd ac ata(e eae eee iv Appendix A: List of Individuals

Appearing as Amici Curiae........ la

INTEREST OF THE AMICI CURIAE ............... l

Appendix B: The Supremacy Clause )

CONSTITUTIONAL AND STATUTORY of the United States

PROVISIONS INVOLVED | Pe ee 2 I l6a

SUMMARY OF THE ARGUMENT eee 3 Appendix C: Pertinent Parts of

oR 2 See ae 17a

Eg oe 0 0% 4h EL ee ee 5

1 THE OPINION BELOW’ IRRECONCILABLY

CONFLICTS WITH THE DECISION IN JAMES B.

BEAM DISTILLING CO. V. GEORGIA, 111 S.CT. 2439

6 & evra wa bes

Il THE OPINION BELOW ERRED BY RELYING ON

CHEVRON ANALYSIS TO SUSPEND THE

NONDISCRIMINATION CLAUSE OF 4 U.S.C. § 111

FOR A PERIOD OF FIFTY YEARS ........... 1]

A The Application of 4 U.S.C. § 111 in

Davis Did Not Establish a New Principle

GO ok ved iae eneeebenasetanesi 12

B. Retroactive Application of Davis is

Necessary to Enforce Federal Supremacy

and Limitations on the Judicial

PED . s oescscweeee eee een wae bs 24

od Any Alleged Hardship or Inequity Which

May Result From Enforcing the

Nondiscrimination Clause of 4 U.S.C. §

111 Cannot Justify Nonretroactive

Ree GT 6 oc ccc cctwowecers 28

. “2 P

TABLE OF AUTHORITIES

CASES:

Allen v. State Board of Elections,

I ewes oe twee ceunes 15

Aloha Airlines, Inc. v. Director of Taxation,

ie aay 18, 29

American Tobacco Co. v. United States,

I MI bce ye cae oly 2b de 14

American Trucking Ass'ns., Inc. v. Smith,

Sot ee eee 10-12, 24, 26, 28

American Trucking Ass'ns., Inc. v. Scheiner,

I gi aia era 7, 26

Arizona Governing Committee v. Norris,

i a ee es a lla 15

Armco, Inc. v. Hardesty,

I he tas ee, nay = ae 13

Ashland Oil, Inc. v. Caryl,

EO ns oc a ctaduscere 4, 12, 13, 26

Atkin v. Kansas, 191 U.S. 207 (1903) ............... 29

Bacchus Imports, Ltd. v. Dias,

POD o's bcc ewe cccccccuseseus passim

Barker v. Kansas, 112 §.Ct. 1619 (1992) .... 2... passim

Bass v. South Carolina, 414 $.E.2d 110

(S.C. 1991), pet. for cert. pending,

Eg ree 2 Ee ee l

Bate Refrigerating Co. v. Sulzberger,

Te a ak en 17

Bohn v. Waddell, 790 P.2d 772

(Ariz. T.C. 1990), aff'd on

reconsideration, 807 P.2d |

(Ariz. T.C. 1991), appeal

pending No. | CA-TX 90-029

(Ariz. App., argued Feb. 12, 1991) ................ 2

Brumley v. Utah State Tax Commission,

No. 91-0242 (Utah, argued Apr. 7, 1992)............. 2

Chevron Oil, Inc. v. Huson,

Ee ane eee ee an passim

Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc.,

Se ee now eee cdncunee 17

Chung Fook v. White, 264 U.S. 443 (1924)............ 17

Commr. of Immigration of Port

of New York v. Gottlieb,

a os a cn bs eee eheace vale 28

Corona Co. v. United States, ;

er ED ow wicccvcscicccncccecectin 29

Davis v. Department of Treasury,

446 N.W.2d 531 (Mich. App. 1991) ................ 9

Davis v. Michigan Dept. of Treasury,

I ro Passim

Del Monte Mining and Milling

Co. v. Last Chance Mining

and Milling Co., 171 U.S. 55 (1898). .............. 20

Demarest v. Manspeaker, 111 S.Ct. 599 (1991)... 0.0... 18

Duffy v. Wetzler, 555 N.Y.S.2d 543

(N.Y. Sup. Ct. 1990), aff'd as

modified, 579 N.Y.S.2d (N.Y.

App. Div. 1992), appeal dism'd,

(N.Y., Order, July 7, 1992) ..............--e. oe

Estate of Sanford v. Comm'r

of Internal Revenue, 308 U.S. 39 (1939) ............ 10

Evans v. Abney, 396 U.S. 435 (1970) ..............., 21

Fleming v. Fleming, 264 U.S. 29 (1924) .......... 21, 22

Freytag’ CLR., 111 S.Ct. 2631 (1991) ............. 29

Graves v. New York ex rel. O'Keefe,

I te ts at 22

Griffin v. Oceanic Contractors, Inc..

aaa 5 os tow be bu ee be apiu 18

Hallstrom v. Tillamook County,

110 S.Ct. 304 (1989) . LENO sede ereeeeeeeseeeeee 29

Hanover Shoe, Inc. v. United States,

I oe ee mia rial ee 4, 13, 14

Heiner v. Donnan, 285 U.S. 312 (1932).............., 21

Helvering v. New York Trust Co.,

IY sa Sa a oats il ee 28

lowa-Des Moines Bank v. Bennett,

i I le es See 9,10

Vil

James B. Beam Distilling Co. y. Georgia,

A es ices .. passim

Lake County v. Rollins,

ee Se ras © 20

Lampf, Pleva, Lipkind, Prupis

& Petigrow v. Gilbertson,

RS EA Un MG Mes Or 7

Leffingwell v. Warren, 67 U.S. 599 (1862) ............ 29

License Tax Cases, 72 U.S. (5 Wall.) 462 (1866) ..... 20, 21

Los Angeles Dept. of Water

& Power v. Manhart,

gE Aeros LeU aN Mada 15

Louisville and Nashville

Railroad Co. v. Mottley,

RG SS RR acy a ee MMe | 29

Low Wah Suey v. Backus, 225 U.S. 460 a 28

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ... 25,27

Maryland v. Louisiana, 451 U.S. 725 (1981)........... 23

McCray v. United States, 195 U.S. 60 eee 26

McCullough v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ........ 18, 19, 22, 24, 27

McKesson Corp. v. Div. of

Alcoholic Beverages & Tobacco,

110 S.Ct. 2238 (1990) .... 0... 2, 25, 27, 30

Vili

Memphis Bank & Trust Co. v. Garner,

ee en UD bs 416K Glee 6 Oe os BOs ee ee 16,

Mobil Oil Corp. v. Higginbotham,

CR A eee ee ee ee ee ee ee

Montana National Bank of

Billings v. Yellowstone County,

RIN eM Tahoe a ky uae 5 oe gece

Moses Lake Homes, Inc. v. Grant County,

RE A A See

Mullaney v. Anderson, 342 U.S. 415 (1952) ...........

National Broiler Marketing

Ass'n v. United States,

concn g's a5 6 he Os a aw OOP

New York Nat. Bank v. Massey,

og eer gad ee Oe 0S SL

Norfolk & Western v.

American Train Dispatchers,

ee rire eae oe et

Northern Securities Co. v. United States,

SS oe Pl ee oe at tie

Patterson v. Shumate,

60 U.S.L.W. 4550 (U.S., June 15, 1992)

Et A LE NEI PS ak Ee eon ee ee |

Phillips Chemical Co. v. Dumas

Independent School Dist. ,

IE a o's b' 5-6-0 ka a hi nae ae 16, 23,

Pledger v. Bosnick,

811 S.W.2d 286 (1991),

ee rere |

Pollard's Lessee v. Hagan,

oe eR 20, 26

Prima Paint Corp. v. Flood

& Conklin Mfg. Co.,

DT rk Ss a sf cara og a 20

Rose v. Arkansas State Police, 479 U.S. 1 (1986)... ...... 19

Sheehy v. Montana, 820 P.2d 1257

(Mont. 1991), pert. for cert. pending,

I ie rea are ern aes ak aioe ee |

Simpson v. Union Oil Co., 377 U.S. 13 (1964) ....... 7,14

Sizemore v. Rinehart, No. 2900290

(Ala. App. 1992), pet. for cert.

Es HE OEE boc ce wend vedsedvenas 2

South Carolina v. Baker, 485 U.S. 505 (1988)... .... 22, 24

St. Louis & Iron Mountain

Railway Co. v. Taylor,

SN or hs a eres 17, 28, 29

State Tonnage Tax Cases,

er ee Ge CUTE 6c cc 0 ace es oceewenes 22

Stewart Organization, Inc. v. Ricoh Corp.,

Ck Pe ee ere rer rr re oT 20

Swanson v. State, 407 S.E.2d 791 (N.C.),

adhered to on reh'g, 410 S.E.2d 490

(N.C. 1991), pert. for cert. pending,

8 ee PE ee eR OT ER TE Ce

Swift & Co. v. Hocking Valley Ry. Co.,

eee oe eee ee

Texas Cement Co. v. McCord, 233 U.S. 157 (1914) ....

The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870)

Thornley v. United States, 113 U.S. 310 (1885) .......

Trinityfarm Co. v. Grosjean, 291 U.S. 466 (1934) .....

eee es Pe es OED oc cso ce bee ek doe:

United States v. Aluminum Co. of America,

SG ae SO Gee Ges GERD gw cc sec c ces ecenes

United States v. City of Detroit,

FTES EE TET ee ee ee

United States v. City of Spokane,

918 F.2d 84, 89 (9th Cir. 1990),

cert. denied, 111 §.Ct. 2888 (1991) .............

United States v. County of Fresno,

4 erate ane ery ar

United States v. Estate of Donnelly,

397 U.S. 286 (1970) ....., ee ee ree ee eres

United States v. First National Bank of Detroit,

oe es ree eee

United States v. Fisher,

Sa Ge GU PD voc we eevee cceeses 17, 28

United States v. Johnson,

RR NE Ae OO Ree TS REE Reade cs 13

United States v. Missouri

Pacific Railroad Co., 278 U.S. 269 (1929) ........... 28

United States v. Nixon, 418 U.S. 683 (1974) ........... 21

United States v. Rogers, 45 U.S. (4 How.) 567 (1846)... .. 17

United States v. Ron Pair

Enterprises, Inc.,

RT Rene ate ucrartaem PR aR a Mew ARMs ia 2 17

United States v. Rutherford, 442 U.S. 544 (1979)... 2.2... 20

United States v. Sisson, 399 U.S. 267 (1970) .......... 22

Washington v. United States,

Se es PED ob wa eecccescucess 16, 22, 23, 27

Youngstown Sheet and Tube Co. v. Sawyer,

cs oe bee dee ee 19, 29

CONSTITUTIONAL PROVISIONS AND STATUTES:

La oe bee os eke ees oe eee passim

11 U.S.C. § 541(c)(2) . 2... sie re nehen aie rae he eee 18

PD vo os ab euaeewueeeh uuu 15

Pr EE ni oo hk 6 nS ake s one hae Oe oleh 16

xii

Public Salary Tax Act of 1939,

ch. 59, § 4, 53 Stat. 575

cet ee cece ee eeee bese 16

re Ce ce cieudek deus seeders 19

oF SPP PURE PRET. «cee eeETES CO 2!

fe ee | OY 6 ee ee ee 2, 18

OTHER AUTHORITIES:

H.R. Rep. 26, 76th Cong.,

a a no ee a ey 25

S.Rep. 112, 76th Cong.,

a SE Oe Se tO eo Oe ee ae ee 25

The Federalist No. 15, at 143 (A. Hamilton)

i ea ee a at 27

The Federalist No. 33, at 255 (A. Hamilton)

ES eg Sg 19

The Federalist No. 44, at 356 (J. Madison)

tg sot ee

The Federalist No. 47, at 376 (J. Madison)

a 20

The Federalist No. 78, at 576, 579 (A. Hamilton)

ee oe 20

No. 91-794

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

HENRY HARPER, ET AL.,

Petitioners,

vs.

VIRGINIA DEPARTMENT OF TAXATION,

Respondent.

On Writ of Certiorari to the

Supreme Court of Virginia

BRIEF AMICT CURIAE FOR DESIGNATED

FEDERAL RETIREES IN KANSAS, ARKANSAS,

NORTH CAROLINA, MONTANA, SOUTH CAROLINA,

NEW YORK, UTAH, ALABAMA AND ARIZONA

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMIC] CURIAE

Amici are the petitioners in Barker v. Kansas, 112 S.Ct. 1619

(1992); the respondents in Pledger v. Bosnick, 811 S.W.2d 286

(Ark. 1991), pet. for cert. pending, No. 91-375; the petitioners in

Swanson v. State, 407 $.E.2d 791 (N.C.), adhered to on reh'g, 410

S.E.2d 490 (N.C. 1991), pet. for cert. pending, No. 91-1436; the

petitioners in Sheehy v. Montana, 820 P.2d 1257 (Mont. 1991), pet.

for cert. pending, No. 91-1473; the petitioners in Bass v. South

Carolina, 414 §.E.2d 110 (S.C. 1991), pet. for cert. pending, No.

91-1697; the appellants in Duffy v. Wertzler, 555 N.Y.S.2d 543

(N.Y. Sup. Ct. 1990), aff'd as modified, 579 N.Y.S.2d (N.Y. App.

Div. 1992), appeal dism'd, (N.Y., Order, July 7, 1992); the cross-

appellants in Brumley v. Utah State Tax Commission, No. 91-0242

(Utah, argued Apr. 7, 1992); the cross-appellees in Sizemore v.

Rinehart, No. 2900290 (Ala. App. 1992), pet. for cert. pending,

(Ala., No. 1911015); and the appellants in Bohn v. Waddell, 790

P.2d 772 (Ariz. T.C. 1990), aff'd on reconsideration, 807 P.2d |

(Ariz. T.C. 1991), appeal pending No. 1 CA-TX 90-029 (Ariz.

App., argued Feb. 12, 1991).’

Amici are retired federal employees (civilian and military)

involved in litigation which squarely addresses the question

presented here: whether this Court's decision in Davis v. Michigan

Dept. of Treasury, 489 U.S. 803 (1989), may under any

circumstances be given nonretroactive effect to defeat the

entitlement of federal retirees to a refund of unconstitutional State

taxes imposed on their federal retirement benefits. The ultimate

disposition of this issue will have a decided impact on the

constitutional rights of amici and literally hundreds of thousands of

retired federal employees in those States which have refused to

enforce the clear mandates of 4 U.S.C. § 111, James B. Beam

Distilling Co. v. Georgia, 111 S.Ct. 2439 (1991), and McKesson

Corp. v. Div. of Alcoholic Beverages & Tobacco, 110 S.Ct. 2238

(1990). Therefore, amici have a salient and compelling interest in

proper resolution of the question presented in this case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The text of the Supremacy Clause, U.S. Const., art.

VI, cl. 2, is set forth in Appendix B, infra.

2. The pertinent text of 4 U.S.C. § 111 is set forth in

Appendix C, infra ?

B *

"Set forth in Appendix A us a complete list of all amici. The written consents

of the parties to the filing of this bnef amici curiae have been filed with the Clerk

of the Coun

SUMMARY OF THE ARGUMENT

The refusal of the Virginia Supreme Court to enforce the plain

meaning and effect of 4 U.S.C. § 111, despite its application by

this Court to the parties in Davis v. Michigan Dept. of Treasury,

489 U.S. 803 (1989), directly conflicts with James B. Beam

Distilling Co. v. Georgia, 111 §. Ct. 2439 (1991). Furthermore, by

suspending the operation of Section 111's prohibition against

discrimination until the announcement of Davis, its decision offends

rudimentary principles of federal supremacy and disregards the

solemn judicial obligation to effectuate the clear intent of Congress

expressed in an unambiguous statute. The judgment below must be

reversed.

In Davis, this Court applied 4 U.S.C. § 111 to invalidate a

Michigan income tax scheme which favored retired state and local

government employees over retired federal employees. 489 U.S. at

817. Enroute to its decision, the Court significantly observed that

the “plain” and “unambiguous” terms of 4 U.S.C. § 111 “leave no

room for doubt" that the statute protects federal retirees from

discriminatory state taxation. 489 U.S. at 808-810 and n.3. In

disposing of Davis, this Court did not reserve the question of

retroactivity; rather, it independently determined that Paul Davis

was entitled to a refund of taxes paid in prior years pursuant to

Michigan's discriminatory tax scheme. /d. at 817.

In Beam, every Member of the Court agreed that where the

issue of retroactivity is not specifically reserved for subsequent

disposition, the rule of law announced in the decision applies to the

parties before the Court. See 111 S. Ct. at 2451 (O'Connor, J.,

dissenting opinion, joined by Rehnquist, C.J., and Kennedy, J.). A

clear majority of the Court also agreed that when a decision has

been retroactively applied to the parties in suit, the decision must be

applied retroactively to all other similarly situated litigants. Since

Davis did not reserve the retroactivity question and clearly applied

its decision retroactively to the parties¢ Beam compels that Davis

must be retroactively applied to all other litigants not barred by

procedural limitations or res judicata. See Beam, 111 S.Ct. at 2448.

Michigan's remedial concession in Davis does not affect this

conclusion; thus, the opinion below misinterpreted the effect of

Davis in concluding otherwise.

Although Beam alone compels reversal, the Virginia Supreme

Court also erroneously applied the analysis described in Chevron

Oil, Inc. v. Huson, 404 U.S. 97 (1971), to erect a false veneer for

its holding that Davis was not retroactive. When a judicial decision

"dloes] not overrule clear past precedent nor decide a wholly new

issue of impression,” it does not satisfy Chevron's threshold

requirement for nonretroactivity and applies retroactively. Ashland

Oil, Inc. v. Caryl, 110 S. Ct. 3202, 3205 (1990) (per curiam).

Moreover, when a decision like Davis has applied settled precedents

to construe an unambiguous federal statute in the manner intended

by Congress, the rule applies retroactively because it has not altered

the law in any material way. See Hanover Shoe, Inc. v. United

States, 392 U.S. 481, 496-499 (1968). Indeed, Davis did not create

a new principle of law. To the contrary, Davis merely enforced as

written the “plain” and “unambiguous” terms of 4 U.S.C. § 111

which “unmistakabl[y]" prohibits discriminatory state taxation of

federal retirees. 489 U.S. at 808-810 and n.10. As a decision which

straightforwardly applied an unambiguous federal statute, Davis

merely held that Section 111's express requirements must be

enforced as directed by Congress.

The failure to apply Davis retroactively would eviscerate the

core principles of federal supremacy and separation of powers upon

which our constitutional framework is based. Where the language

of a congressional enactment is plain, courts have no power to

revise a federal statute in accordance with their own notions of

considered public policy: instead, courts are required to enforce

federal statutes as written. Section 111's unambiguous prohibition

against discriminatory state taxation has been the supreme “Law of

the Land” since its enactment in 1939 and, by its own force through

the Supremacy Clause. has withdrawn all power from the States to

enact conflicting legislation. Since an unambiguous Act of Congress

must be applied uniformly from its effective date, the Virginia

Supreme Court was not at liberty to defy a clear congressional

directive by suspending the national will for over 50 years.

Nonretroactive application of Davis would suspend Section 1 11's

nondiscrimination clause and would turn federal supremacy on its

head, allowing invalid state laws to reign supreme in defiance of the

“supreme Law of the Land.” The second prong of Chevron

mandates the retroactivity of Davis in order to preserve federal

supremacy and to effectuate congressional intent.

Finally, any alleged hardship or inequity which may result

from enforcing the unambiguous commands of Congress cannot

justify nonretroactive application of Davis. The responsibility for

the justice and wisdom of legislation rests solely with Congress,

while the province of the courts is to enforce, and not make, the

laws. In this case, the federal choice of law is, and always has been,

the unambiguous terms of 4 U.S.C. § 111. Having exerted judicial

power that does not exist to override an unambiguous Act of

Congress, the judgment of the Supreme Court of Virginia must be

reversed.

ARGUMENT

I. THE OPINION BELOW IRRECONCILABLY CONFLICTS

WITH THE DECISION IN JAMES B. BEAM DISTILLING

CO. V. GEORGIA, 111 S.CT. 2439 (1991)

The controlling rule of decision articulated in Beam is that a

court commits reversible error whenever it “refuse{s] to apply a

rule of federal law retroactively after the case announcing the rule

has already done so.” 111 S.Ct. at 2446 (Souter, J., plurality

opinion announcing the judgment, joined by Stevens, J.). Despite

differences in jurisprudential reasoning between Members of the

Beam majority, this Court reversed a Georgia Supreme Court

judgment which utilized a Chevron analysis to conclude that

Bacchus Imports, Lid. v. Dias, 468 U.S. 263 (1984), did not apply

to tax refund claims arising before the date of that decision.’

Accordingly, “when the Court has applied a rule of law to the

litigants in one case it must do so with respect to all others not

barred by procedural requirements or res judicata.” Beam, 111

S.Ct. at 2448 (Souter, J., plurality opinion announcing the

judgment, joined by Stevens, J.).

In this case, the Virginia Supreme Court concluded on remand

that Beam does not mandate retroactive application of the decision

in Davis. Stating that Davis did not consider the issue nor rule that

its holding applied retroactively to the parties, the opinion below

perceived no precedential impediment to the use of Chevron analysis

in determining whether Davis is retroactive. (Pet. 4a). The Virginia

court reiterated adherence to its view of the analysis described in

Chevron and reaffirmed its original decision. (Pet. 4a-Sa). Because

the lower court's analysis significantly misapprehends the central

importance of Beam in resolving the proper application of Davis and

similar decisions of this Court, the judgment below must be

reversed.

Without doubt, the majority opinion in Davis neither

mentioned “retroactivity” nor expressly addressed it as a separate

issue for decision. See 489 U.S. at 803-817. Judicial silence of this

ilk, however, does not support the Virginia court's naked assertion

that retroactive application of Davis is an unsettled question which

may be decided afresh in pending state court litigation. To the

contrary, since “retroactivity * * * goes without the saying” in most

2Three members of the Court reached this conclusion as a federal choice of

law matter (see Beam, 111 S.Ct. at 2446-2448 (Souter, J., plurality opinion

announcing the judgment, joined by Stevens, J.), and id at 2448-2449 (White, J,

concurring in judgment)), while three members of the Court concurred in the

reversal on broader grounds involving basic norms of constitutional adjudication

and limitations on the judicial power (see id at 2449-2450 (Blackmun, J.,

concurring in judgment, joined by Marshall and Scalia, J.J.), and id. at 2450-2451

(Scalia, J., concurring in judgmefit, joined by Marshal! and Blackmun, JJ _)). While

the decision in Beam wes delivered without a majority opinion, it is beyond

peradventure that the holding expressed in Justice Souter's plurality opimon

artuculates the minimally acceptable rule of law which must be apphed by on

courts

decisions of this Court, silence on the issue signifies that the rule

announced in a decision has been retroactively applied to the parties

before the Court. Beam, 111 S.Ct. at 2445 (Souter, J., plurality

Opinion announcing the judgment, joined by Stevens, J.). As Justice

O'Connor cogently ex iained:

Given that the usual course in cases before this Court is

to apply the rule announced to the parties in the case, the

most reasonable reading of silence is that the Court

followed its customary practice.

Id. at 2451 (dissenting opinion, joined by Rehnquist, C.J., and

Kennedy, J.) (emphasis added). Therefore, when a decision of this

Court does not “reserve the question whether its holding should be

applied to the parties before it, (the decision] is properly understood

to have followed the normal rule of retroactive application in civil

cases." Id. at 2445 (Souter, J., plurality opinion announcing the

judgment, joined by Stevens, J.) (citation omitted).?

Because "(t]he Bacchus opinion is silent on the retroactivity

question,” there was no disagreement among Members of this Court

that “Bacchus applied its rule retroactively to the parties before it.”

>For example, in Lampf. Pleva, Lipkind, Prupis & Petigrow v. Gilbertson.

111 S.Ct. 2773 (1991), this Court established a uniform period of limitations for

all 10b-5S actions under the Securities and Exchange Act of 1934. Although Lampf

announced a new rule and overturned established circuit court precedent, that

decision was retroactively applied to the parties in suit without any discussion of

the retroactivity question. See Id. at 2787-2788 (O'Connor, J., dissenting opinion,

joined by Kennedy, J.).

On the other hand, when this Court chuoses to reserve judgment on the

retroactive or prospective application of a rule-changing decision, it has had no

difficulty expressing that determination un the rule changing-decision itself. See,

¢.g., American Trucking Ass'ns., Inc. ¢ “Scheiner, 483 U.S. 266, 297-298 (1987)

(after deciding the constitutional question presented, the Court remanded the case

to Pennsylvania state court “to consider whether our ruling should be applied

retroactively”); Simpson v. Union Oil Co., 377 U.S. 13, 24-25 (1964)("We reserve

the question whether, when all the facts are known, there may be any equities that

would warrant only prospective application in damage suits of the rule governing

price fixing by the ‘consignment’ device which we announce today *).

Beam, 111 S.Ct. at 2451 (O'Connor, J., dissenting opinion, joined

by Rehnquist, C.J., and Kennedy, J.). While the Virginia Supreme

Court acknowledged that "Bacchus applied its rule retroactively to

the litigants in that case,” the opinion below attempts to avoid the

effect of Beam on the basis that “the Court made no such ruling in

Davis.” (Pet. 4a). Since Bacchus and Davis are both silent on the

retroactivity question, the Virginia Supreme Court improperly

equated the absence of an express ruling on this issue in Davis with

parochial freedom to independently determine whether the decision

should be given retroactive effect.

In Bacchus, this Court did not expressly state that its holding

would apply retroactively to the taxpayers or the State of Hawaii,

and it did not reserve judgment on the issue. See Bacchus, 468 U.S.

at 276-277. Instead, the case was reversed and remanded to state

court solely for consideration of Hawaii's asserted "pass-through

defense” to the taxpayers’ refund claims. Beam, 111 S.Ct. at 2445

(Souter, J., plurality opinion announcing the judgment, joined by

Stevens, J.); see also Bacchus, 468 U.S. at 276-277. By logical and

necessary implication, such judicial action retroactively applied the

holding in Bacchus to the parties before the Court without any

express consideration or determination of the retroactivity question.

Beam, 111 S.Ct. at 2445-2446 (Souter, J., plurality opinion

announcing the judgment, joined by Stevens, J.); id. at 2448

(White, J., concurring in judgment); id. at 2451 (O'Connor, J.,

dissenting opinion, joined by Rehnquist, CJ., and Kennedy, J.).

Therefore, unless the issue has been specifically reserved by this

Court for subsequent disposition, the absence of an express ruling

on the retroactivity question does not mean that the application of a

civil decision is unsettled; instead, it means that the decision will be

retroactively applied to the parties in accordance with customary

practice.

“For example, in Barker v. Kansas, 112 S.Ct. 1619 (1992), this Court applied

the plain language of 4 U.S.C. § 111 to invalidate a discriminatory Kansas income

tax which favored state and local government retirees over federal military retirees.

Id at 1621-1622, 1626. Although the Barker decision was announced with a keen

awareness of the retroactivity issue (see Tr. Oral Argument at 8-10, 38-41, Barker

Like the taxpayers in Bacchus, Paul Davis challenged the

val idity of a discriminatory state tax on constitutional grounds, and

Simultaneously requested retroactive and prospective relief from

unlawful taxation. Davis, 489 U.S. at 806-807, 817. Mr. Davis

also prevailed on the merits of his challenge. Jd. at 817. However,

this Court expressly decided in Davis that "to the extent appellant

has paid taxes pursuant to this invalid scheme, he is entitled to a

refund. See lowa-Des Moines Bank v. Bennett, 284 U.S. 239, 247

(1931).” 489 U.S. at 817. Since Davis unequivocally approved the

taxpayer's entitlement to a refund of state taxes paid in prior years,

its ruling was retroactively applied to the parties before it with even

greater clarity than the Bacchus decision, which by contrast, "did

not grant outright” the taxpayers’ request for a refund. 2am, 111

S.Ct. at 2445 (Souter, J., plurality opinion announcing the

judgment, joined by Stevens, J)?

The opinion below erroneously concluded that “the issue of

retroactivity was not considered * * * in Davis because Michigan

previously had agreed to the payment of a refund * * * if its taxing

scheme were invalidated.” (Pet. 4a). The Virginia Supreme Court

ignored the fact that Michigan agreed to pay a refund as the

appropriate choice of remedy, but only upon the express condition

that this Court invalidated the Michigan tax.° The Court in Davis

(No. 91-611), and nine States urged the Court to specifically reserve this question

to avoid its retroactive effect (Brief of Arizona, Arkansas, Georgia, lowa, Montana,

Oklahoma, Utah, Virginia and Wisconsin as Amicus Curiae in Support of

Respondents at 1-4, Barker (No. 91-611)), like Bacchus and Davis, the Barker

opinion is silent regarding the scope of its application. Therefore, the Barker

decision is properly understood to follow the general rule and it has been

retroactively applied to the parties before the Court.

| 5On remand from this Court, the Michigan Court of Appeals properly

interpreted the Davis opinion as “directing that plaintiff receive refund for

overpayment of taxes resulting from this disparate treatment.” Davis v. Department

of Treasury, 446 N.W.2d 531 (Mich. App. 1991).

In Davis, Michigan relied upon lowa-Des Moines National Bank v. Bennett,

284 US. 239 (1931), to argue that if the Court invalidated Michigan's

discriminatory tax scheme, the inequality could be remedied by either striking the

reached and approved Michigan's concession that Mr. Davis should

receive a tax refund (489 U.S. at 817), but only after concluding

that Michigan's tax scheme was invalid and only after applying its

ruling retroactively to the parties. Under federal law, if the effect

of Davis was not retroactive, the. question of remedy would never

have been reached and Mr. Davis could not have been awarded a

tax refund. See American Trucking Ass'ns., Inc. v. Smith, 110 S.Ct.

2323, 2330 (1990) (O'Connor, J., plurality opinion); United States

v. City of Spokane, 918 F.2d 84, 89 (9th Cir. 1990), cert. denied,

111 S.Ct. 2888 (1991). In light of Beam, and retroactive application

of Bacchus without any discussion of the issue, the Virginia court's

assertion that the retroactive effect of Davis has no precedential

value or effect is patently unsupportable. ”

While judicial silence alone means that a decision has been

retroactively applied, Justice Souter also observed that any qualified

or unqualified approval of a taxpayer's entitlement to a refund

"necessarily implies that the precedential question has been settled

exemption which favored state retirees or by extending the exemption to federal

retirees. Appellees’ Brief at 62-63, Davis (No. 87-1020). With respect to

prospective remedies, Michigan argued that the Court should remand the case and

allow the state courts or legislature an opportunity to make this choice between

“remedial alternatives.” Jd. at 63. With respect to retroactive remedies, Michigan

argued that providing Mr. Davis a tax refund would satisfy the mandate of equal

treatment; therefore, the Court should not retroactively strike the exemptions

favoring state retirees, which would have imposed a tax on them. /d. at 61-63 and

82-83. Michigan's arguments clearly focused only on the choice between "remedial

alternatives” and did not even remotely suggest that Michigan's refund concession

had any effect upon the Court's independent decision to retroactively apply its

holding to the parties before it.

?Michigan’s concession that a refund was appropriate does not dilute or

undermine the binding effect of this Court's determination that Mr. Davis is

“entitled to a refund” under Jowa-Des Moines Bank. Davis, 489 U.S. at 817.

“[S]ince the court cannot be controlled by agreement of counsel on a subsidiary

question of law,” Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289

(1917) (Brandeis, J., majority opinion), the Davis decision independently

determined the taxpayer's entitlement to a refund by approving the validity of

Michigan's position. Cf Estate of Sanford v. Comm'r of Internal Revenue, 308

U.S. 39, 51 (1939) (“We are not bound to accept, as controlling, stipulations as

to questions of law.”).

to the effect that the rule of law will apply to the parties before the

Court. " Beam, 111 S.Ct. at 2445 (plurality opinion announcing the

judgment, joined by Stevens, J.). Because the refund issue was

resolved by this Court in Davis, that case was remanded to state

court solely for payment of the taxpayer's refund and consideration

of appropriate prospective relief "to comply with the mandate of

equal treatment.” Davis, 489 U.S. at 816-817. These circumstances

convincingly demonstrate that the decision “should be read as

having retroactively applied the rule there decided." Beam, 111

S.Ct. at 2445-2446 (Souter, J., plurality opinion announcing the

judgment, joined by Stevens, J.)(citing Davis as comparative

Support for this proposition in the retroactive application of

Bacchus).

Since the taxpayer clearly received the benefit of this Court's

decision in Davis, the opinion below is nothing less than a

transparent attempt to exhume and resuscitate the corpse of selective

prospectivity despite its burial in Beam and its binding effect on

state courts.? However, it is now settled that "[o]nce retroactive

application is chosen for any assertedly new rule, it is chosen for

all others who might seek its prospective application." Beam, 111

S.Ct. at 2447-2448 (Souter, J., plurality opinion announcing the

judgment, joined by Stevens, J.). Because the Commonwealth of

Virginia is no exception, the judgment below must be reversed.

fl. THE OPINION BELOW ERRED BY RELYING ON

CHEVRON ANALYSIS TO SUSPEND THE

NONDISCRIMINATION CLAUSE OF 4 U.S.C. § 111 FOR

A PERIOD OF FIFTY YEARS

In Davis, this Court applied the nondiscrimination clause of

4 U.S.C. § 111 to invalidate a Michigan income tax scheme which

in the interest of national uniformity and “to prevent States from denying or

curtailing federally protected nghts, we have consistently required that state courts

adhere to our retroactivity decisions.” American Trucking Ass'ns., Inc. v. Smith

«+9 S.Ct. at 2330 (O'Connor, J., plurality opinion announcing the judgment, joined

by Rehnquist, C.J., and White and Kennedy, J.J.).

favored "retired state and local government employees over retired

federal employees." 489 U.S. at 817. See also Barker, 112 S.Ct.

at 1622 ("Davis * * * * invalidated under § 111 the Michigan

income tax on federal civil service retirees"). That decision also

approved Mr. Davis’ entitlement to a refund of taxes paid in prior

years. See Davis 489 U.S. at 817-818. This Court reversed and

remanded the case for payment of Mr. Davis' tax refund and

prospective compliance "with the mandate of equal treatment.” /d.

Despite the rejection of selective prospectivity in Beam, the

Virginia Supreme Court reaffirmed its adherence to a three-step

Chevron analysis in determining that "the Davis decision is not to

be applied retroactively.” (Pet. 17a). While straightforward

application of Beam alone warrants reversal of the judgment below,

the Virginia Supreme Court’ further erred by utilizing Chevron

analysis to effectively suspend the nondiscrimination clause of 4

U.S.C. § 111 from its enactment in 1939 until the announcement of

Davis fifty years later. Because Section 111 is an “unambiguous

statute” which clearly expresses the intent of Congress in “plain

language” with “unmistakable” meaning (see Davis, 489 U.S. at

808-810 and n.3), the opinion below improperly refused to enforce

its prohibition against discrimination any time before March 28,

1989.

A. The Application of 4 U.S.C. § 111 in Davis Did Not

Establish a New Principle of Law

Before any judicial decision may be even considered for

nonretroactive application, it "'must establish a new principle of law

by overruling clear past precedent * * * * or by deciding an issue

of first impression whose resolution was not clearly

foreshadowed.'” American Trucking Ass'ns., Inc. v. Smith, 110

§.Ct. at 2331 (O'Connor, J., plurality opinion) (quoting Chevron,

404 U.S. at 106). However, when a decision "d[oes] not overrule

clear past precedent nor decide a wholly new issue of first

impression,” it does not satisfy this threshold requirement and “thus

applies retroactively.” Ashland Oil, 110 S.Ct. at 3205.

The Davis decision did not overrule any clear past precedent

in invalidating Michigan's income tax on federal retirees. See 489

U.S. at 803-818. To the contrary, Davis struck down the

discriminatory tax by merely enforcing the plain terms of 4 U.S.C.

§ 111. Jd. at 812-814, 817; see also Barker, 112 S.Ct. at 1622.

Without even passing reference to Section 111, however, the

opinion below concluded that Davis "established a new rule of law

by deciding an issue of first impression whose resolution was not

clearly foreshadowed.” (Pet. 12a). Since Davis was decided by

applying the “plain” and “unambiguous” language of Section | 11

(see 489 U.S. at 808-810; Barker, 112 S.Ct. at 1622), the Virginia

Supreme Court clearly misapprehended the statutory basis for that

decision and the necessity of retroactive application.

Generally speaking, "when a decision of this Court merely

has applied settled precedents to new and different factual

situations,” the rule applies retroactively because it has not altered

the law “in any material way.” United States v. Johnson, 457 U.S.

537, 549 (1982). In such cases, "retroactivity * * * goes without the

saying.” Beam, 111 S.Ct. at 2445 (Souter, J., plurality opinion

announcing the judgment, joined by Stevens, J.). Similarly, a

constitutional decision which merely extends a legal doctrine

without overturning established precedent or announcing a

“revolutionary” rule "does not meet the first prong of the Chevron

Oil test." Ashland Oil, 110 S.Ct. at 3205.° The same is true with

respect to decisions which interpret and apply federal statutes. As

Justice White explained for the majority in Hanover Shoe, Inc. v.

United Shoe Machinery Corp., 392 U.S. 481 (1968), a decision

which applies a federal statute based on “existing authorities”

without “adopting a radically new interpretation” will be given

9in Ashland Oil, a unanimous Court held that Armco, Inc. v. Hardesty, 467

U.S. 638 (1984), applied retroactively in determining the constitutionality of a

West Virginia gross receipts tax for the fiscal years ending September 1975 and

1976. 110 S.Ct. at 3203-3205. While Armco contributed to the development of

dormant Commerce Clause jurisprudence by adopting the internal consistency test,

the decision did not satisfy the threshold requirement for nonretroactive application

because it neither overruled established precedent nor decided a wholly new issue

of first impression. /d. at 3205.

retroactive effect unless it marks “such an abrupt and fundamental

shift in doctrine as to constitute an entirely new rule which in effect

replaced an older one.” /d. at 497-498 ./

Because "Acts of Congress are generally to be applied

uniformly throughout the country from the date of their

effectiveness onward,” only the most exceptional circumstances can

ever “warrant withholding retroactive application of a decision

construing a statute as Congress intended it." United States v. Estate

of Donnelly, 397 U.S. 286, 294-295 (1970). In rare instances, this

Court has reserved judgment on the issue when overruling its own

construction of a statute (see Simpson v. Union Oil Co., 377 U.S.

101, Hanover Shoe, this Court held that American Tobacco Co. v. United

States, 328 U.S. 781 (1946), would be retroactively applied in determiming a

plaintiff's entitlement to damages under the Sherman Act. The Court of Appeals

had concluded that American Tobacco would not be given retroactive effect and that

Hanover could not recover damages prior to its announcement on June 10, 1946

reasoning that American Tobacco “fundamentally altered the law of

monopolization” by eliminating proof of predatory practices in addition to

monopoly power. Hanover Shoe, 392 U.S. at 495. This Court reversed, reasoning

in relevant part:

In the American Tobacco case, this Court noted that the precise

question before it had not been previously decided * * * and gave

no indication that it thought was adopting a radically new

interpretation of the Sherman Act. Like the Court of Appeals [in

United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir.

(1945)}, this Court relied for its conclusion upon existing authorities.

These cases make it clear that there was no accepted interpretation of

the Sherman Act which conditioned a finding of monopolization under

2 upon a showing of predatory practices by the monopolist. In

neither case was there such an abrupt and fundamental shift in

doctrine as to constitute an enurely new rule which in effect replaced

an older one. Whatever development in antitrust law was brought

about was based to a great extent on existing authorities and was an

extension of doctrines which had been growing and developing over

the years. These cases did not constitute a sharp break in the line of

earlier authority or an avulsive change which caused the current of the

law thereafter to flow between new banks.

Hanover Shoe, 392 US. at 496-499 (White, J.. majority opinion) (citation

omitted).

at 24-25), or denied retroactive effect to a decision which resolved

complex questions of first impression involving the application of an

ambiguous statute in light of conflicting legislative history (see Allen

v. State Board of Elections, 393 U.S. 544, 570-571 (1969)).

However, no exceptional circumstances are present here that can

justify suspending application of the plain language of the

nondiscrimination clause of 4 U.S.C. § J 11 until the announcement

of Davis on March 28, 1989.//

"In Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983) and Los

Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978), this Court

held that Title VII prohibited employers from requiring women to make larger

contnbutions in order to obtain the same deferred compensation and pension plan

benefits as men. Neither case was given retroactive effect.

Recognizing that Title VII was not “intended to revolutionize the insurance

and pension industries” and the statute “does not require * * * any retroactive

relief,” the Court in Manhart concluded that changes in the legal rules governing

pension and insurance funds “should not be applied retroactively unless the

legislature has plainly commanded that result.” 435 U.S. at 717-718, 721.

However, the Congress and EEOC have recognized the “importance of making

only gradual and prospective changes in the rules that govern pension plans.” /d.

at 721-722 and n.40. Given the potentially devastating effect of retroactive liability

on the insurance industry and pension plans, where the harm would be largely felt

by innocent third parties, it would be inequitable éo0 impose such relief based on the

“unforeseen” contingency of a Title VII decision “which represents a marked

departure from past practice.” Manhart, 435°U.S. at 721-723.

In Norris, five Members of this Court concluded that its decision should be

given only prospective effect. Relying upon the intent of Congress expressed in the

McCarran-Ferguson Act (15 U.S.C. § 1011 ef seq.) and Title VII's legislative

history, four Members of the Court dissented from the application of Manhart to

voluntary deferred compensation plans and reasoned, based on Manhart itself, that

an award of retroactive relief “would be both unprecedented and manifestly unjust.”

463 U.S. at 1099-1105 (Powell, J., dissenting in part and concurring in part, joined

by Burger, C. J., and Blackmun and Rehnquist, J.J.). Justice O'Connor provided

the pivotal swing vote for nonretroactive application of Norris. Reasoning that

“the answer” on the merits “is far from self-evident” because “the general language

chosen by Congress does not clearly resolve the precise question,” Justice

O'Connor applied Chevron analysis and the Court's equitable powers under Title

VII to fashion an appropriate prospective remedy. 463 U.S. at 1107-1111

(concurring opinion).

In view of the unique circumstances present in Manhart and Norris, both

decisions are inapposite to proper resolution of this case.

When Congress originally enacted 4 U.S.C. § 111 as part of

the Public Salary Tax Act of 1939, ch. 59, § 4, 53 Stat. 575

(effective January 1, 1939), it consented to state taxation of current

and retired federal employees "if the taxation does not discriminate

against the * * * employee because of the source of the pay or

compensation.” See Davis, 489 U.S. at 808-809. Under settled

principles of statutory interpretation, the "plain language” of Section

111 “leaves no room for doubt” that it protects federal retirees from

discriminatory state taxation (Davis, 489 U.S. at 808-810 and n.3),

and “the retention of immunity in § 111 is coextensive with the

prohibition against discriminatory taxes embodied in the modern

constitutional doctrine of intergovernmental tax immunity” (id. at

813). This principle of nondiscrimination precludes any State from

taxing federal retirees if "it treats someone else better than it treats

them.” Washington v. United States, 460 U.S. 536, 545 (1983).

Section 111 accordingiy prohibits the imposition of state taxes which

discriminate against federal retirees in favor of state retirees unless

"the inconsistent tax treatment is directly related to, and justified

by, ‘significant differences between the two classes.'" Davis, 489

U.S. at 816 (quoting Phillips Chemical Co. v. Dumas Independent

School Dist., 361 U.S. 376, 383 (1960)). See also Barker, 112

§.Ct. at 1622./4

‘2Even the lone dissenter in Davis conceded that “[a}rguably, the Court's

holding today is merely a logical extension of our decisions in Phillips Chemical

*** and Memphis Bank & Trust Co. v. Garner, 459 U.S. 392 (1983).” 489 U.S.

at 824 (Stevens, J., dissenting opinion). In light of these and other precedents

which have recognized or applied the nondiscrimination principle, this

acknowledgment by Justice Stevens demonstrates that Davis did not arrive like a

bolt from the blue. See, ¢.g., Memphis Bank, 459 U.S. at 397-399 (applying the

nondiscrimination clause of 31 U.S.C. § 742 “as principally a restatement of the

constitutional] rule” to invalidate a Tennessee bank tax which discriminated "in favor

of securities issued by Tennessee and its politica! subdivisions and against federal

obligations * * * * by including in the tax base income from federal obligations

while excluding income from otherwise comparable state and local obligations." );

Phillips Chemical, 361 U.S. at 383-387 (applying the nondiscrimination principle

to invalidate a Texas lease tax which impermissibly imposed a greater tax burden

on lessees of federal property than lessees of exempt property owned by the State

and its political subdivisions). Thus, the most that can be said about Davis is that

the Court relied upon (and perhaps logically extended) settled judicial precedent in

applying the nondiscrimination clause of 4 U.S.C. § 111

| Al

Because Section 111 is an “unambiguous statute” which

“leaves no room for doubt" regarding the scope of its intended

meaning, application and effect (see Davis, 489 U.S. at 809-810,

812-813 and n.3), the duty of the courts “is simply to enforce the

law as it is written, unless clearly unconstitutional.” Chung Fook

v. White, 264 U.S. 443, 446 (1924). This solemn obligation of the

judiciary to enforce the intent of Congress expressed in

unambiguous legislation is beyond dispute. See United States v. Ron

Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (where, as here,

the statute's language is plain, ‘the sole function of the court is to

enforce it according to its terms.'”) (citation omitted)./?

Writing for the Court in Norfolk & Western v. American Train

Dispatchers, 111 S.Ct. 1156 (1991), Justice Kennedy recently

explained:

As always, we begin with the language of the statute and

ask whether Congress has spoken on the subject before

us. ‘If the intent of Congress is clear, that is the end of

the matter; for the court * * * * must give effect to the

unambiguously expressed intent of Congress.’

Id. at 1163 (quoting Chevron U.S.A. Inc. v. Natural Resources

"3See also Texas Cemen Co. v. McCord, 233 US. 157, 163 (1914)

(unanimous opinion) (“it is only the province of the courts to enforce the statute

in accordance with its terms.”); St. Louis & Iron Mountain Railway Co. v. Taylor,

210 U.S. 281, 295 (1908) (the courts “have * * * no duty except to enforce the

law as it is written"); Bate Refrigerating Co. v. Sulzberger, 1S7 U.S. 1, 37-38

(1895) (“where the meaning of the legislature was plain ‘it must be

obeyed.'"\quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 385 (1805)),

Thorniey v. United States, 113 U.S. 310, 313 (1885) (“Where the meaning of a

statute is plain, it is the duty of the courts to enforce it according to its obvious

terms."); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620 (1870) (where the

language of a federal statute is clear and unambiguous, “[i}t is the duty of the

courts to execute it.”); United States v. Rogers, 45 U.S. (4 How ) 567, 572 (1846)

(“It is our duty to expound and execute the law as we find it~).

Defense Council, Inc., 467 U.S. 837, 842-843 (1984) (emphasis

added)). See also Patterson v. Shumate, 60 U.S.L.W. 4550, 4551

(U.S., June 15, 1992) (No. 91-913) (Blackmun, J., unanimous

opinion) (in applying “the plain language” of 11 U.S.C. § 541(c)(2),

the Court “must enforce the statute according to its terms.”).

Therefore, “when a federal statute unambiguously forbids the States

to impose a particular kind of tax * * *, courts need not look

beyond the plain language of tlie federal statute to determine

whether a state statute that imposes such a tax is pre-empted.”

Aloha Airlines, Inc. v. Director of Taxation, 464 U.S. 7, 12 (1983)

(unanimous opinion) (emphasis added) (invalidating a Hawaii tax on

airline gross receipts which violated “the plain meaning” of 49

U.S.C. § 1513(a))./4

Since the intent of Congress is clearly expressed in the

unambiguous language of 4 U.S.C. § 111, application of this

longstanding statutory mandate in Davis did not create any "new"

principle of federal law; rather, it fulfilled this Court's duty to

enforce valid congressional legislation which is and has been the

“supreme Law of the Land.” See U.S. Const. art. VI, cl. 2. While

the nondiscrimination clause of Section 111 is binding on “the

Judges in every State” (U.S. Const., art. VI, cl. 2), the Virginia

Supreme Court has persistently refused to enforce it. Contra

McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 426 (1819)

(Marshall, C.J., unanimous opinion) ("This great principle is, that

the constitution and the laws made in pursuance thereof are

supreme; that they control the constitution and laws of the

respective States, and cannot be controlled by them."). Both

opinions of the Virginia court have indefensibly ignored federal

supremacy under the rubric of Chevron by suspending enforcement

"*"When we find the terms of a statute unambiguous, judicial inquiry 1s

complete except in rare and exceptional! circumstances © Demarest v Manspeaker

111 S.Ct. 599, 604 (1991) (Rehnquist, C_J., unanimous opinion). These rare and

exceptional cases, however, exist only where “the literal application of a statute will

produce a result demonstrably at odds with the intentions of its drafters.” Griffin

v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982), accord Demarest, 111

S.Ct. at 604. Given the clarity of 4 U.S.C. § 111, however, this exception has no

application here

of the nondiscrimination clause of Section 111 in Virginia any time

before 1989. Contra McCullough, 17 U.S. (4 Wheat.) at 436 ("the

States have no power * * * to retard, impede, burden, or in any

manner control, the operations of the constitutional laws enacted

by Congress * * * * This is, we think, the unavoidable consequence

of that supremacy which the constitution has declared."). Regardless

of the bounds or propriety of “pure” prospectivity, however, this

doctrine cannot ever be applied to any judicial decision which

enforces the plain language and intent of an unambiguous federal

statute unless a court is willing to disregard the Supremacy Clause,

the intent of Congress and the limitations on judicial power

applicable in cases arising under the laws of the United States.

Under our constitutional system of government, the supreme

lawmaking power is vested in Congress as the national legislature.

See U.S. Const., art. 1, § 1; Youngstown Sheet and Tube Co. v.

Sawyer, 343 U.S. 579, 587-588 (1952). See also The Federalist No.

44, at 356 (J. Madison) (J. Hamilton ed. 1869); The Federalist No.

33, at 255 (A. Hamilton) (J. Hamilton ed. 1869). Because it is

undisputed that 4 U.S.C. § 111 is a valid exercise of legislative

authority, no court can lawfully refuse to apply the “unmistakable”

meaning of its “unambiguous” prohibition against discrimination.

See Rose v. Arkansas State Police, 479 U.S. 1, 3 (1986) (per

curiam) ("the Supremacy Clause invalidates all state laws that

conflict or interfere with an Act of Congress."). From its effective

date in 1939, Section 111 has operated through the Supremacy

Clause to withdraw all power from the States to enact conflicting

legislation.

In the authoritative words of Chief Justice Marshall, “[iJt is

the very essence of supremacy to remove all obstacles to its action

within its own sphere, and so to modify every power vested in

subordinate governments, as to exempt its own operations from

their own influence.” McCullough, 17 U.S. (4 Wheat.) at 427.

Consequently, 4 U.S.C. § 111 has outlawed discriminatory State

taxation by its own force without any need for a judicial declaration

to that effect.

20 -

Every constitutional act of Congress is passed by the will

of the people of the United States, expressed through

their representatives, on the subject-matter of the

enactment; and when so passed it becomes the supreme

law of the land, and operates by its own force on the

subject-matter, in whatever state or territory it may

happen to be.

Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 224-225 (1845).

Since the "plain language” and “unmistakable” meaning of 4 U.S.C.

§ 111 have been the “supreme Law of the Land” for more than 50

years, Davis did not establish a “new” principle of federal law

which in effect replaced an older one; instead, this Court simply

applied the Supremacy Clause to invalidate a state statute which

conflicted with the plain meaning of an unambiguous federal statute.

The Virginia Supreme Court's assertion that Davis established

a “new” principle of law likewise ignores settled limitations on the

judicial power which require enforcement of valid ey

enactments. See Prima Paint Corp. v. Flood & Conklin Mfg. Co

388 U.S. 395, 406 (1967) (" Federal courts are bound to apply rules

enacted by Congress with respect to matters * * * over which it has

legislative power.”); Stewart Organization, Inc. v. Ricoh Corp., 487

U.S. 22, 27 (1988) (same); Lake County v. Rollins, 130 U.S. 662,

672-673 (1889) (the judicial function is limited to enforcing the laws

as enacted). Under our tripartite system of government and the

separation of powers doctrine, "[t}his court * * * * has no

legislative powers.” License Tax Cases, 72 U.S. (5 Wall.) 462, 469

(1866); see also Del Monte Mining and Milling Co. v. Last Chance

Mining and Milling Co. , 171 U.S. 55, 66 (1898) (“beyond the terms

of the statute courts may not go. They have no power of

legislation.”); The Federalist No. 78, at 576, 579 (A. Hamilton) (J.

Hamilton ed. 1869); The Federalist No. 47, at 376 (J. Madison) (J.

Hamilton ed. 1869). It is equally beyond dispute that courts have no

power to revise or veto valid congressional enactments. See United

States v. Rutherford, 442 U.S. 544, 555 (1979) (“Under our

constitutional framework, federal courts do not sit as councils of

revision, empowered to rewrite legislation in accord with their own

conceptions of prudent public policy.”); TVA v. Hill, 437 U.S. 153,

194-195 (1978) ("We do not sit as a committee of review, nor are

we vested with the power of veto."); United States v. Nixon, 418

U.S. 683, 704 (1974) (the President may not share the veto power

with the Judiciary).

In cases or controversies within its jurisdiction (U.S. Const.,

art. III), "[t}he responsibility of this Court * * * is to construe and

enforce the Constitution and laws of the land as they are and not to

legislate social policy on the basis of our own personal

inclinations.” Evans v. Abney, 396 U.S. 435, 447 (1970). Because

the Court has no legislative powers, "[i}t cannot amend or modify

any legislative acts” (License Tax Cases, 72 U.S. (5 Wall.) at 469),

and it has “no authority to substitute [its] views for those expressed

by Congress in a duly enacted statute." Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 626 (1978). See also New York Nat.

Bank v. Massey, 192 U.S. 138, 146 (1904) ("We are to interpret

Statutes, not to make them."). Consequently, “[flor this court to *

* * * disregard the plain language and the plain intent” of an

unambiguous federal statute "would be to enact a new law under the

pretense of construing one and thus pronounce itself guilty of a

flagrant perversion of the judicial power.” Heiner v. Donnan, 285

U.S. 312, 331 (1932).

As a statutory case, the central import of Davis “is not to

make a new law but only to hold that the law always meant what

the court now says it means.” Fleming v. Fleming, 264 U.S. 29,

31-32 (1924) (Taft, C.J., unanimous opinion). Because the

nondiscrimination clause of 4 U.S.C. § 111 has operated in all

States since 1939, the retroactive application of Davis is a

constitutional imperative. Inasmuch as Section 111 is an

“unambiguous statute” whose “overall meaning * * * is

unmistakable” (Davis, 489 U.S. at 809-310 and n.3), settled

iin = the judicial power prohibited this Court in Davis from

nullifying plain intent of Congress through prospective

decisionmaking. Despite the total absence of ro power to

override Section 111, the opinion below has nevertheless suspended

the operation of its nondiscrimination clause in Virginia before

March 28, 1989. While “[t}he court has power to construe a

legislative act, * * * it has no power by change in construction to

date its passage as a law from the time of the later decision.”

Fleming, 264 U.S. at 32; see also State Tonnage Tax Cases, 79

U.S. (12 Wall.) 204, 217 (1871) ("Legislative enactments, where

the language is unambiguous, cannot be changed by

construction")./°

Given these circumstances, it is unthinkable that Davis

established a new principle of law on the asserted basis that Virginia

could not have known “a statutory scheme, exempting state

pensioners from state taxation, would have placed any foreseeable

and direct burden on some federal operation.” (Pet. 12a). Because

valid federal statutes “control the constitution and laws of the

respective States, and cannot be controlled by them” (McCullough,

17 U.S. (4 Wheat.) at 426), the force and effect of 4 U.S.C. § 111

does not turn on the self-serving perceptions of the States. Any such

assertion belies federal supremacy as well as the intent of Congress

expressed in Section 111 to protect the United States and its retired

employees from any discriminatory tax regardless of whether it

actually “interfere[s] with the Federal Government's ability to

perform its governmental functions.” See Davis, 489 U.S. at

812-814; of. Washington v. United States, 460 U.S. 536, 546 n. 12

(1983) (Rehnquist, J., majority opinion) (“when Congress has acted

in this field, it has applied a nondiscrimination rule” to determine

the validity of state taxes). Under Section 111 and the modern tax

immunity doctrine, the critical requirement is “that the government

tax in a nondiscriminatory fashion.” South Carolina v. Baker, 485

U.S. 505, 526 n.15 (1988). See also Graves v. New York ex rel.

O'Keefe, 306 U.S. 466, 485-487 (1939); id. at 488 (Frankfurter,

J., concurring opinion) ("state and federal governments must avoid

'Sindeed, “a statute ‘is not an empty vessel into which this Court is free t

pour a vintage that we think better suits present-day tastes.“ National Broiler

Marketing Ass'n v. United States, 436 U.S. 816, 827 (1978) (quoting United States

v. Sisson, 399 U.S. 267, 297 (1970)).

exactions which discriminate against each other . . .")./°

Nevertheless, as this Court unequivocally observed in Davis,

preferential tax exemptions for retired state and local government

employees “to reduce the State's employment costs at the expense

of the federal treasury are the type of discriminatory legislation that

the doctrine * * * is intended to bar.” 489 U.S. at 815 n.4. Since

State tax discrimination against the United States or those with

whom its deals invariably causes them to suffer unequal economic

burdens (cf. Washington v. United States, 460 U.S. at 544), there

has never been any departure from the principle that "a state tax

may not discriminate against the Government or those with whom

yr — Chemical, 361 U.S. at 387. See also Davis, 489

S. at 812.

Simply stated, Davis did not establish a new principle of law

by overruling past precedent or deciding a wholly new issue of first

impression, rather, Davis applied the plain language and

unmistakable meaning of 4 U.S.C. § 111 to enforce the “supreme

Law of the Land” as it has existed since 1939. By mischaracterizing

the holding in Davis as a new principle of law and refusing to give

it any retroactive effect, the Virginia Supreme Court unlawfully

suspended the nondiscrimination principle of Section 111 for more

than 50 years. The opinion below has accordingly overridden an

express determination of Congress in violation of the Supremacy

Clause by asserting judicial power which does not exist. Because

the holding in Davis cannot be given nonretroactive effect without

offending principles of federalism and federal supremacy through

unprecedented judicial usurpation of legislative power, the judgment

of the Virginia Supreme Court must be reversed.

i the discrimination, not the quality of the burden, that carries

unconstitutional consequences Washington v. United States, 460 U.S. at 555

(Blackmun, J., dissenting opinion, joined by White, Marshall and Stevens, J.J).

of Bacchus , 468 U.S. at 269 ("It is well settled that ‘[wle need not know how

unequal the Tax is before concluding that it unconstitutionally discriminates ‘")

(quoting Maryland v. Louisiana, 451 US. 725, 760 (1981)).

B. Retroactive Application of Davis is Necessary to

Enforce Federal Supremacy and Limitations on the

Judicial Function

Under the plurality's approach in American Trucking Ass'ns.,

Inc. v. Smith, the second factor which must be examined is "'the

prior history of the rule in question, its purpose and effect, and

whether retrospective operation will further or retard its

operation.’” 110 $.Ct. at 2331 (O'Connor, J.) (quoting Chevron,

404 U.S. at 106-107). Despite its failure to discuss the existence,

history, purpose or effect of the nondiscrimination principle applied

in Davis, the opinion below summarily concluded that "the second

prong of the Chevron test is satisfied." (Pet. 12a). Although the

Virginia General Assembly remedied the "detects in its statute on

a prospective basis following the announcement of Davis (id.),

such limited corrective action does not fully enforce the

longstanding prohibition against discrimination, and it does not

legitimize or eradicate Virginia's past practice of unlawful taxation.

For more than 50 years, 4 U.S.C. § 111 has fully codified

“the prohibition against discriminatory taxes embodied in the

modern constitutional doctrine of intergovernmental tax immunity."

Davis, 489 U.S. at 813. This nondiscrimination principle arises

from the Supremacy Clause (South Carolina v. Baker, 485 U.S. at

518 n.11), and “has, from the time of McCullough v. Maryland,

barred taxes that ‘operat{e] so as to discriminate against the

Government or those with whom it deals.'" Davis, 489 U.S. at 812

(quoting United States v. City of Detroit, 355 U.S. 466, 473

(1958)). It is, accordingly, beyond question that a State tax scheme

which favor those who deal with the State over those who deal with

the Federal Government is unlawful except in the most limited

circumstances with no application here. See Barker, 112 S.Ct. at

Tey contrast, certain other States such as Kansas did not voluntarily take any

corrective action in response to the Davis decision. See Barker, 112 S.Ct. at 1622,

1626.

1622; Davis, 489 U.S. at 815-817; Memphis Bank, 459 U.S. at

397-399, /8

While the tax immunity doctrine is based on the need to

protect federal operations from undue interference by the States,

“all precedent" has established a "settled rule” that those who deal

with the United States -- including federal retirees -- are entitled to

protection from discriminatory taxation. See Davis, 489 U.S. at

814-815./% It is equally settled that such "a discriminatory tax is

void and ‘may not be exacted.'" Moses Lake Homes, Inc. v. Grant

County, 365 U.S. 744, 752 (1961) (quoting Phillips Chemical, 361

U.S. at 387). Because the piain language of 4 U.S.C. § 111 has

operated by its own force to prohibit State tax discrimination against

federal retirees, nonretroactive application of Davis would conflict

with congressional intent, federal supremacy, limitations on the

judicial power and due process of law.72

18 see also United States ¥. County of Fresno, 429 U.S. 452, 462 (1977);

Phillips Chemical, 361 U.S. at 383-385; cf, Bacchus, 468 U.S. at 273 (preferential

tax exemptions are discriminatory regardless of motivation); id. at 286 (Stevens,

J., dissenting opinion, joined by Rehnquist and O'Connor, J.J.) (providing a special

benefit in the form of a tax exemption is a kind of discrimination).

"9 As this Court observed in Davis, “[t}he danger that a State is engaging in

impermissible discrimination against the Federal Government is greatest when the

State acts to benefit itself and those in privity with it." 489 U.S. at 815.4. To

protect the United States from even the possibility of impermissible discrimination,

consent to taxation under 4 U.S.C. § 111 has been “expressly confined” to state

and local “taxation which does not discriminate against [federal] officers or

employees because of the source of their compensation.” S.Rep. 112, 76th Cong.,

Ist Sess. 12 (1939); H.R. Rep. 26, 76th Cong., Ist Sess. 5 (1939).

20in a related context, this Court has observed that victims of tax discrimination

may not be deprived of their “legal right to recover the amount of the tax

unlawfully exacted” through prospective decisionmaking which “leaves the monies

thus exacted in the public treasury." Montana National Bank of Billings v.

Yellowstone County, 276 U.S. 499, 504-505 (1928). See also McKesson v. Div.

of Alcoholic Beverages & Tobacco, 110 $.Ct. 2238, 2247-2250 (1990). “The very

essence of civil liberty certainly consists in the right of every individual to claim

the protection of the laws whenever he receives an injury. One of the first duties

of government is to afford that protection." Marbury v. Madison, 5 US. (1

Cranch) 137, 162-163 (1803)

It is true that the tax immunity doctrine is not intended to

prevent “legitimate” taxation (Pet. 12a), however, Virginia's

discriminatory tax has never been “legitimate.” The opinion below

misinterpreted and misapplied the analysis of Justice O'Connor in

American Trucking Ass'‘ns., Inc. v. Smith to declare that "Virginia's

taxing statute was legitimate until” the announcement in Davis. /d.

In American Trucking Ass'ns., Inc. v. Smith, the plurality concluded

that an Arkansas tax was “legitimate” before the announcement of

American Truck Ass'ns., Inc. v. Scheiner, 483 U.S. 266 (1987),

because "Scheiner established a ‘new principle of law' by overruling

those aspects of the Aero Mayflower cases on which the State of

Arkansas relied in enacting and assessing the * * * tax.” 110 S.Ct.

at 2332 (emphasis added). By stark contrast, Davis did not overrule

any established precedent and amici are unaware of a single decision

of this Court which furnishes any genuine support for Virginia's

decision to unlawfully favor state and local government retirees over

federal retirees. Indeed, Virginia's discriminatory tax scheme

always conflicted with the plain language of 4 U.S.C. § 111;

therefore, it cannot attain legitimacy through judicial fiat. Where the

State's "power to tax (federal retirees) is not unlimited, validity is

not established by the mere imposition of a tax,” (cf Mullaney v.

Anderson, 342 U.S. 415, 418 (1952) (Frankfurter, J., majority

opinion)), nor is it established by the passage of many years without

legal challenge (Ashland Oil, 110 S.Ct. at 3205 n*). Since Virginia

has never had any power to impose discriminatory taxes against

retired federal employees, its offensive tax scheme in effect before

Davis was void ab initio and cannot be legitimized-after the fact by

a stroke of the judicial pen.

"[A] state enactment, even if passed in the exercise of its

acknowledged powers, must yield, in case of conflict, to the

supremacy of the Constitution of*the United States and the acts of

Congress enacted in pursuance of its provisions.” Northern

Securities Co. v. United States, 193 U.S. 197, 347 (1904). See also

McCray v. United States, 195 U.S. 60 (1904). Because the

nondiscrimination clause of 4 U.S.C. § 111 has been in operation

since 1939 (see Pollard's Lessee, 44 U.S. (3 How.) at 224-225),

this statute imposes an absolute requirement which may not be

abrogated, compromised or suspended by the States. See McKesson,

110 S.Ct. at 2246 ("state courts must interpret and enforce faithfully

the ‘supreme Law of the Land'"). As this Court explained in

Trinityfarm Co. v. Grosjean, 291 U.S. 466 (1934), application of

the tax immunity doctrine "does not depend upon the amount of the

exaction, the weight of the burden or the extent of the resulting

interference with sovereign independence. Where it applies, the

principle is an absolute one wholly unaffected by matters or

distinctions of degree." Jd. at 471. See Washington v. United States,

460 U.S. at 554 (Blackmun, J., dissenting opinion, joined by White,

Marshall and Stevens, J.J.) ("The Supremacy Clause does not

merely guarantee equality; it absolutely immunizes [those who deal

with] the United States from discriminatory state taxation.").

If this Court sanctions Virginia's impermissible judicial

legislation to validate discriminatory taxation against federal retirees

from January 1, 1939 to March 28, 1989, the statutory

nondiscrimination principle will be emasculated and the Supremacy

Clause will become an “empty and unmeaning declamation."

McCullough, 17 U.S. (4 Wheat.) at 433. "It would declare, that if

the legislature shall do what is expressly forbidden, such act,

notwithstanding the express prohibition, is in reality effectual."

Marbury v. Madison, 5 U.S. (1 Cranch) at 178. Retroactive

application of Davis is thus necessary to further established

principles of federalism and federal supremacy, without which “the

world * * * would [see] a monster, in which the head [is] under

the direction of the members." The Federalist No. 44, at 356 (J.

Madison) (J. Hamilton ed. 1869). If States may invoke the

nonretroactivity doctrine to avoid the controlling force of an

unambiguous federal statute, "the resolutions or commands which

pretend to be laws, will in fact amount to nothing more than advice

or recommendation." The Federalist No. 15, at 143 (A. Hamilton)

(J. Hamilton ed. 1869). The judgment below should accordingly be

reversed.

S. Any Alleged Hardship or Inequity Which May Result

From Enforcing the Nondiscrimination Clause of 4

U.S.C. § 111 Cannot Justify Nonretroactive

Application of Davis

Under the plurality's approach in American Trucking Ass'ns.,

Inc. v. Smith, the tinal factor which must be examined is “'the

inequity imposed by retroactive application,’” because in some law-

changing decisions, "'injustice or hardship [may be avoided] by a

holding of nonretroactivity.'" 110 $.Ct. at 2331 (O'Connor, J.)

(quoting Chevron, 404 U.S. at 107). Despite its failure to

acknowledge the existence, operation or effect of 4 U.S.C. § 111,

the opinion below concluded that nonretroactive application of Davis

was required to avoid potentially disruptive financial consequences

for Virginia and its citizens. (Pet. 13a-14a). However, the

nondiscrimination clause of Section 111 must be enforced regardless

of the consequences; equitable considerations are simply irrelevant

to the proper application of an unambiguous federal statute.

Even where the plain meaning of a federal statute, if applied,

may result in “disastrous” or “harsh consequences, it cannot

influence the courts in administering the law. The responsibility for

the justice or wisdom of legislation rests with the Congress and it is

the province of the courts to enforce, not to make, the laws.”

United States v. First National Bank of Detroit, 234 U.S. 245, 260

(1914); accord, St. Louis & Iron Mountain Railway Co. v. Taylor,

210 U.S. at 295 (the “harshness” of unambiguous legislation "is no

concern of the courts").?/ "The Founders of this Nation entrusted

the lawmaking power to the Congress alone in both good and bad

times. It would do no good to recall the historical events, the fears

of power and the hopes for freedom that lay behind their choice."

21 See also Helvering v. New York Trust Co. , 292 U.S. 455, 464 (1934); United

States v. Missouri Pacific Railroad Co., 278 U.S. 269, 277-278 (1929); Commr.

of Immigration of Port of New York v. Gottlieb, 265 U.S. 310, 313 (1924); Low

Wah Suey v. Backus, 225 U.S. 460, 476 (1912); United States v. Fisher, 6 U.S.

(2 Cranch) at 386 (Marshall, C.J.) (if the meaning of a federal statute is plain, “it

must be obeyed” even “where great inconvenience will result.”).

Youngstown Sheet and Tube, 343 U.S. at 589. Consequently, in

cases when the application of an unambiguous federal statute "may

result in disruption of state systems of taxation,” this Court is

“pound by the plain language of the statute.” Aloha Airlines, 464

U.S. at 14.n.10.

Likewise, “[t]he court cannot add an exception based on

equitable grounds when Congress forebore to make such an

exception.” Louisville and Nashville Railroad Co. v. Mottley, 219

U.S. 467, 479 (1911).22 "To do so, would be to usurp the function

of another and a distinct governmental department. It would be

legislation, and not adjudication.” Leffingwell v. Warren, 67 U.S.

599, 605 (1862). As this Court observed in upholding the validity

of a state labor statute:

[I]f it be said that a statute * * * is mischievous in its

tendencies, the answer is that the responsibility therefor

rests upon legislators, not upon the courts. No evils

arising from such legislation could be more far-reaching

than those that might come to our system of government

if the judiciary, abandoning the sphere assigned to it by

the fundamental law, should enter the domain of

legislation, and upon grounds merely of justice or reason

or wisdom annul statutes that had received the sanction

of the people's representatives. ‘

Atkin v. Kansas, 191 U.S. 207, 223 (1903) (emphasis added).

Indeed, "[iJt would be better * * * to look hardship in the face

rather than break down the rules of law.” Sr. Louis & Iron

Mountain Railway Co. v. Taylor, 210 U.S. at 295.

22 accord, Freytag v. C.1.R., 111 S.Ct. 2631, 2636 (1991) ("courts ‘are not at

liberty to create an exception where Congress has declined to do so.'") (quoting

Hallstrom v. Tillamook County, 110 $.Ct. 304, 309 (1989)); Corona Co. v. United

States, 263 U.S. 537, 540 (1924) (where “the words of the statute are plain * * *

* we are not at liberty to add an exception in order to remove apparent hardship in

particular cases.”).

In applying its view of the equities under Chevron to

determine whether Davis should be given retroactive effect, the

Virginia Supreme Court misperceived its judicial responsibility and

usurped the prerogative of Congress by refusing to enforce the plain

terms of Section 111. Under our constitutional system of

government, equitable considerations do not affect the judicial

obligation to apply unambiguous statutes enacted by Congress

pursuant to its constitutional powers. Because no court is

empowered to suspend the plain meaning of 4 U.S.C. § I11 to

avoid perceived hardships or inequitable results, the judgment below

must be reversed.

CONCLUSION

The judgment of the Supreme Court of Virginia should be

reversed and remanded for further proceedings to refund, within the

applicable limitations period, all income taxes paid by Petitioners

pursuant to Virginia's unlawful tax scheme in effect before Davis.

Such action is necessary to enforce the plain terms of 4 U.S.C. §

111 and to ensure full compliance with the mandate of McKesson

to provide meaningful backward-looking relief.

Respectfully submitted,

John C. Frieden

Kevin M. Fowler*

FRIEDEN, HAYNES & FORBES

400 S.W. 8th, Suite 409

Topeka, KS 66603

(913) 232-7266

*Counsel of Record for Amici Curiae

APPENDIX A

The following is a complete list of all individuals appearing as

amici curiae in connection with this brief:

KANSAS AMICI

The petitioners in Barker v. Kansas, 112 $.Ct. 1619 (1992),

include:

KEYTON BARKER; MARJORIE E. LOBER;

PAULINE BARKER; ROGER J. OLSON;

ROBERT W. CLAY; NANCY W. OLSON;

BETTY J. CLAY; ANDREW J. PEELE;

ANTHONY E. COCORAN; WILLIAM RICHARDS, SR;

JOHN G. FOWLER; OLLUN E. RICHARDS;

LELAND W. KEISTER, JR.; LEONARD W. WILLIAMS;

PATRICIA K. KEISTER; LONETA S. WILLIAMS;

EDWARD F. KELLOGG; CLARENCE WOLF; AND

RENATA O. KELLOGG; FLORA B.WOLF,

WILLIAM J. LOBER, JR.;

for themselves individually and as designated class representatives

on behalf of a certified class of approximately 14,000 federal

military retirees (and joint taxpayer spouses, where applicable) who

have been subject to Kansas income taxation.

ARKANSAS AMICI

The petitioners in Pledger v. Bosnick, 811 S.W.2d 286 (Ark.

1991), pet. for cert. pending, No. 91-375, include:

STANLEY BOSNICK; WILLA S. LINDSEY;

WILLIAM D. BARLOW; JOHN SANDFORT; AND

HANK GAJDA; GEORGE E. STEWART,

DON LANE

for themselves individually and as designated class representatives

on behalf of a certified class of approximately 33,000 federal

military and civilian retirees who have been subject to Arkansas

income taxation.

NORTH CAROLINA AMICI

The petitioners in Swanson v. State, 407 S.E.2d 791 (N.C.),

adhered to on reh'g, 410 S.E.2d 490 (N.C. 1991), pet. for cert.

pending, No. 91-1436, include:

NORMAN W. SWANSON

HENRY F. MURRAY

CARL L. WHITNEY

WILLIAM E. NICHOLSON, III

CHARLES A. DANCY

MELVIN F. EYERMAN

IRA N. SCHWARZ

JOHN L. POWELL, JR.

GALINA ELWORTH

DONALD V. WALLACE

WILLIAM E. DENTON

ROBERT A. NISBET,

WALTER J. BARTNIKOWSKI

RALPH P. HUNT,

MARION B. ZOLLICOFFER

WILLIAM H. TALBERT

BILLY CLARK

WALLACE M. DAVIS

GRADY L. STRANGE

HAMILTON M. HOWE

MARY L. PRITCHARD

ROBERT B. CAMPBELL

BROWNING ADAMS

PRITCHARD G. ADAMS

WILLIAM H. ADAMS

EDWARD H. ALLEN

FLOSSIE P. ALLEN

JOSEPH A. ALLEN

RACHEL C. ALLRED

HELEN L. ANETIL

LEO I. ANCTIL

RONALD E. ANDERSON

CLARENCE P. ARMSTRONG

CARROLL W. AUSTIN

F. L. AUSTIN, JR.

DONALD P. BAHR

PAUL BALLUS

CHARLES D. BARKER, SR.

WALTER E. BARKHOUSE

EDWARD C. BARRET

JAMES L. BAXTER

RUSSELL W.BEARD

BERNARD L. BEATTY

RICHARD K. BELL

LEO E. BENADE

SHERMAN W. BETTS

JOSEPH H. BETZ

ROBERT L. BLEVINS

FRANKLIN M. BLUNT

TIMOTHY C. BOLICK

MARGARET C. BOONE

HENRY A. BOTKIN

ALEX BOURDAS

OLA MAY (TATE) BOVENDER

EUGENE A. BOWEN

LAVAUNE K. BREDA

MARLOWE G. BREDA

TROND G. BREKKE

LAURA B. BRENDLE

MILLARD BRIDGERS

CLARENCE M. BRIDGES

DORIS K. BRIDGES

CYRUS H. BROOKS, JR.

DANIEL R. BROWN

K.A. BROWN

WILLIAM D. BROWN

BETTY P. BULLOCK

ROBERT S. BULLOCK

FINDLEY BURNS JR.

RAY G. BURRELL

RICHARD E. BUSH

JAMES M. BYRNE

NORMAN L. CARLTON

MATTHEW E. CARMEAN

FRANK CATES

J. CRAWFORD CATON

HARRY E. CHAMBERLAIN

VINCENT H. CHASE

PAUL F. CHAVEZ

WOODROW H. CHILDRESS

JOHN G. CHURCH

HERMAN L. CLANTON

ROBERT L. CLARKE

CHARLES C. CLAUSEN SR.

DENNIS E. CLECKNER

STEVE P. CLEMENIC

LACY W. COATES

RUCIA A. COBB

JAMES A. CODDINGTON

CATHERYN S. COLEY

LAURA K. CONDER

JAMES C. CONINE

MARSHALL G. COOPER

ASBURY COWARD III

NEWTON P. COX

RUTH A. COX

BURNETTE E. CREASMAN

THOMAS J. CULKIN

HAZEL B. CURLEE

MILTON L. DAIL

BEATRICE G. DAVIS

BERNLEY S. DAVIS

DONALD M. DAVIS

ESSIE M. DAVIS

GEORGE E. DAVIS

ROBERT J. DAVIS

CLIFFORD H. DAWSON

CALVIN F. DEAN

ORIEN G. DEAN, JR.

JACK M. DEATON

VIOLET B. DEITMARING

ARLEN J. DEVITO

JOHN E. DEVLYN

SARA E. DEVLYN

JOY E. DICKINSON

MRS. LEROY B. DICKINSON

JAMES E. DIFFEE

DELBERT R. DILLON

MARGARET H. DOPF

RAYMOND E. DOPF

LEROY M. DUFFY

CHARLES F. DUPONT

BOBBY R. EASON

DAVID EDMISTEN

CARL L. EFFLER

JOHN H. ELDER, JR.

JOHN R. ELLIS

MANFORD G. FARR

RITA FESTO

JOHN J. FILAN

ANGELO A. FLORENTINO

ROBERT W. FOLDEN

OSCAR F. FOWLER

MELVIN W. FRITZ

WALTON E. FULCHER

ROBERT C. FULLER

WALTER E. FULLER

FRANK W. FURCHES

NORMAN CARL GADDIS

MARSHALL L. GADDY

THOMAS B. GARDINER

ROBERT F. GEISSLER

WILLIAM E. GENTNER, JR.

THOMAS P. GINN

ROBERT W. GOODMAN

JOHN R. GORDON

BERNICE C. GRANDY, JR.

STEVEN W. GRANDY

ROBERT J. GREEN

MICHAEL R. GREESON

JAMES H. GRIFFIN

THOMAS M. GROOME, JR.

JAMES W. GROSS

ARTHUR S. GUNDERSON

HERT L. HANCOCK, JR.

JAMES M. HARDIN

C. LEE HARRIS

HOWARD W. HARRIS

PAUL H. HARVEY

ROLAND R. HATCHER

HENRY S. HEFFLEY, JR.

CARROLL A. HEFNER

CLARENCE J. HENSLEY, JR.

RICHARD M. HERIOT

DORIS T. HERRING

NOVIS S. HERRING

VIRGINIA R. HILDEBRAND

MOZELLE L. HINSHAW

HERMAN J. HIPPS

RUFUS M. HODGIN

DONALD R. HOFFMAN

CHARLES K. HOFFMEYER

MARY R. HOLLAND

EDGAR P. HOLT

RAY HOMESLEY

NED A. HOOD

ROBERT H. HOOD

STEPHEN W. HOPKINS

CLYDE L. HOWARD, JR.

KEVIN G. HUGHES

HARVEY R. HURST

SAM P. HYATT

JOHN L. IRBY

MATTIE B. IVES

FRANCIS JACOBS

RICHARD L. JARRETT

JACQUELINE M. JENNINGS

WOODROW W. JONES

DONALD L. JORGENSON

KENNETH R. JOSEPH

PATSIE W. JOSEPH

EVERETTE R. KELLER

BERNARD J. KELLEY

WILSON P. KEMP

HOWARD LEE KERR

MARGARET C. KERR

WILLIAM S. KETNER

DAVID L.G. KING

THOMAS M. KING, JR.

EVELYN W. KINNEY

JOHN E. KIRK

PAUL E. KIRKLAND, SR.

RAYMOND B. KLEBER

GEORGE M. KNOBL, JR.

WILLIAM F. KNOPF

MAX V. KREBS

WILLIAM J. KUHN JR.

JAMES M. LANGSTON, JR.

JANE W. LANGSTON

ELMER L. LASHUA

JOHN L. LATHAM

DANIEL M. LAUDERBACK

AUGUST R. LAWRENCE

FREIDA H. LEWIS

NORWOOD P. LEWIS

HENRY G. LILES

DOROTHY J. LILES

WALTER E. LINTHICUM

PHYLLIS V. LIPPARD

GEORGE LOTT

ROBERT P. LUCAS

ALLEN M. MABE

THOMAS S. MACELUCH

WILLIAM F. MARCUSON, JR.

WARNER G. MAUPIN

LYLTON E. MAXWELL

OLIVER A. MAYS

ANDREW G. MAYSE

SAMUEL S. MCCACHREN

ELIZABETH S. MCCASKILL

ELIZABETH G. MCDONALD

CLYDE W. MCKIRK

DONALD D. MCGUIRE

NORMAN H. MCLAUGHLIN

DOY K. MCPHAIL

WILLIAM RAY MEDLIN, JR.

ERNEST E. MILLER

MARGARET H. MILLER

EDGAR N. MILLINGTON

HAROLD J. MITCHENER

EUGENE E. MOODY

DOROTHY C. MOORE

JAMES C. MOORE JR.

LUCIE E. MOORMAN

ROBERT M. MOOSE

JACK B. MORRIS

REGENA E. MORRISON

STANLEY B. MORSE

WOODFORD T. MOSELEY

GEORGE R. MUSE

R.J. NETTLES

THOMAS G. NEWPORT

JOHN E. NITSCHE

ALFRED P. NORWOOD

JOHNNIE M. OCHOA

ELVIN E. OGLESBY

OLIVER G. OJA

RUSSELL E. OLSON

LLOYD A. OSBORNE

PAUL B. OSGOOD

WILLIAM C. PAGE

LEE R. PARAMORE

LEWIS W. PATE

CHARLES R. PATTON

VERNON J. PEEBLES

W.W. PEGUES

MARY E. PENN

JOHN D. PENN

ELLIOTTE T. PERKINS, JR.

WILLIAM H. PERRY JR.

PAUL J. PHILLIPPI

RICHARD L. PHILLIPS

RUBY A. PHILLIPS

FRANK J. PIAZZA, SR.

DALLAS PICKARD, JR.

GEORGE A. PINTER

EDWARD W. PIPER

FREDERICK H. PLESS

R.F. HOKE POLLOCK, JR.

LEWINGTON S. PONDER

ELBERT Y. POOLE

JENNETTE C. POOLE

MARTHA BOYCE POTEAT

EDWIN H. PRICE

CHARLES R. PUGH

DANIEL J. QUESENBERRY

MILTON H. QUINN

LOUISE M. RABBINO

THOMAS M. RAMSEY

JACK G. RAY

MARSHALL G. RAY

HAZEL S. REDMON

GEORGE R. REINHART, Ill

ANNIE E. RENKEL

MADGE O. REYNOLDS

FRANKLIN E.

RICHARDSON, JR.

ALLEN W. RIGSBY

GEORGE M. ROBERTS

JENNINGS B. ROBINSON

JAMES P. ROTH

PHIFER P. ROTHMAN

HAROLD E. RUBLE

HILDA H. RULTENBERG

DONALD E. RUSSELL

GEORGE W. SABO

LYLE E. SAMSON

ROBERT L. SCHEER

FREDERICK L.

SCHUERMAN, SR.

ROBERT J. SCHULLERY

ELWOOD M. SHAULIS

ROBERT T. SHERIDAN

STANLEY T. SHIPLEY

CHARLES B. SHIVELY

CHARLES A. SHUE, JR.

RUTH M. SHUE

ELSIE N. SIMMONS

FREDERICK E. SIMMONS

MARY B. SIMPSON

MANUEL F. SIVERIO

JOSEPH A. SIZOO

EVELYN S. SMITH

GEORGE B. SMITH

JAMES E. SMITH

JAMES P. SMITH

JOE F. SMITH

PERCY H. SMITH

JOSEPH L. SOMMER

RAY H. SPANGLER

JAMES A. SPRANKLE

WILEY L. STANDIFER, JR.

JAMES W. STARBUCK

GERTRUDE D. STARLING

STACY J. STARLING

HENRY C. STEED, JR.

ROY C. STEELEY

ARTHUR L. STEWART

BURLENA J. STEWART

JOHN R. STEWART, JR.

GEORGE W. STILLWAY

RITA M. STILLWAY

HAROLD E. STONE

CLYDE DALTON STOWE

HARRY H. STRUNK

E.C. STUMPF

THOMAS A. SUMMEY, JR.

ELLIS G. SUMNER

LEO B. SUMNER

MILDRED Y. SUMNER

MARGARET K. SWINK

JAMES E. SYKES

OLIVER B. TALBERT

JAMES D. TERRELL

CLYDE E. THOMAS

EMOGENE M. THOMPSON

FRED L. TRACY

ROCCO H. TROMBELLO

JOHN G. TRUITT JR.

WILLIAM H. TURK

JAMES T. VANCE

FRANCES A. VANDEN

GEORGE W. VANDEN

ETHEL D. VANHORN

EDWARD J. VAUGHN

EDWARD VENKLER

ROY L. VICK, SR.

KERMIT J. VINSON

MYRTLE H. VINSON

WILLIAM E. WALLACE

ROLAND J. WEBER

GRACE F. WEINER

LONA C. WEISNER

LAWRENCE O. WELCH

PAUL B. WELCH, JR.

GEORGE L. WESTERLIND

WILLIAM B. WHITE

T. M. WHITTINGTON, JR.

ROBERT S. WILLIAMS, JR.

WILLIAM C. WILLIAMS

WINTON H. WILLIAMS

HAROLD P. WILLIAMSON

EDNA MAE WILSON

ROBERT GRAVES WILSON, JR.

ERNEST G. WINSTEAD

PETER S. WONDOLOWSKI

ROBERT V. WOOD

MAYNARD B. WOODBURY

EVELYN W. WOODBURY

GEORGE W. WILKINS

JACK R. WORLEY

JOHN T. WORRELL

GEORGE T. WORRELL

GEORGE E. YALE, JR.

WILLIAM P. YARBOROUGH

for themselves individually and as designated class representatives

on behalf of a certified class of approximately 100,000 federal

military and civilian retirees who have been subject to North

Carolina income taxation.

MONTANA AMICI

The petitioners in Sheehy v. Montana, 820 P.2d 1257 (Mont.

1991), pet. for cert. pending, No. 91-1473, include:

EDMUND SHEEHY; CHARLES W. VANDIEST

RICHARD G. BRANCH; ARNOLD S. WIRTALA;

MARGARET FLEMING; AND

GEORGE MCGOVERN; DONALD ZACK,

for themselves individually and on behalf of al! other similarly

situated federal military and civilian retirees who have been subject

to Montana income taxation.

SOUTH CAROLINA AMICI

The petitioners in Bass v. South Carolina, 414 S.E.2d 110

(S.C. 1991), pet. for cert. pending, No. 91-1697, include:

FRANCIS EDWIN BASS, JR.: MILDRED B. JENKINS;

JOHN GILREATH; MARVIN L. JONES; AND

WILTON A. HOCKENBERRY: CAiHERINE L. MOYERS,

J. LORING JENKINS:

for themselves individually and as designated class representatives

on behalf of a certified class of approximately 70,000 federal

military and civilian retirees who have been subject to South

Carolina income taxation.

NEW YORK AMICT

The appellants in Duffy v. Wetzler, 555 N.Y.S.2d 543

(N.Y. Sup. Ct. 1990), aff'd as modified, 579 N.Y.S.2d (N.Y. App.

Div. 1992), appeal dism'd, (N.Y., Order, July 7, 1992), include:

EUGENE H. DUFFY DANIEL J. MAHER;

ALICE G. DUFFY; MARGARET A. MAHER;

ETTORE DELZIO; FERNANDO S. MAURA;

VIVIAN DELZIO; THOMAS F. MOLLOY;

ALBERT ENGEL; JOSEPH A. O'SULLIVAN;

JUDITH ENGEL; RITA M. O'SULLIVAN;

STANLEY L. GOLDSTEIN; JAMES SWEEZY;

MILDRED GOLDSTEIN; ALICE SWEEZY;

HARVEY GOTTLIEB; IRVING WAX; AND

PETER M. KALEY; HELEN WAX.

MARY T. KALEY;

UTAH AMICI

The cross-appellants in Brwmley v. Utah State Tax

Commission, No. 91-0242 (Utah, argued Apr. 7, 1992), include:

DRUE ALDOUS; BARBARA BOWMAN;

DERRAL ALLEN; BERM BOWMAN;

RICHARD ANDRUS; MARGARET BUSCHE;

DWIGHT BAERTSCH; MAY BUTTON;

DOUG BALDWIN; BLAKE CHARD;

COLLEEN BALLOW; ARTWELL CHECKETTS;

MARGARET BATCHELOR; BEATRICE CLAYTON;

KENNETH BELWOOD; SYBIL COLTER;

ALLEN BERGESEN; OLIVE COOMBS;

ROBERT BIGSBEE; HAZEL COOPER;

LOUIS BONOMO; MARILYN CORDON;

NORMA BONOMO;- LEONARD COTTAM;

VERL BOSWORTH: JAY CRAGUN;

BUFORD CRAWFORD;

MACK CROFT;

TOM CROSBY;

FERN DAVIS;

GARY DAVIS;

BERT DAYTON;

DON DEBOER;

WALT DEGN;

JOHN DEWEY;

LAMAR DEWEY;

CAROL DONNELLY;

FLORA ECK;

GLEN FERGUS;

ISADORA FETZR;

JETTA FILLIN;

ED FOURNIER;

BARBARA GARVEY;

JOSEPH GRANDUCCI;

LOIS GREEN;

THERON GREEN,

LYNN GROVES;

MARGARET HADLEY;

MARY HASSING;

LEANDER HENRY;

MARY HILLS;

BARBARA HOOPER;

CARLYLE JENSEN;

CHRIS JENSEN;

EVA JENSEN;

HAROLD JOHNSON;

ROBERT JONES;

ULAH JONES;

BYRON JORDAN;

JIM JOST;

RALPH KEITH;

MAX KENNEDY;

DAN KIMOSE;

10a

STEVE KUDLA;

INA LAURITSEN;

MAYE LOEWEN;

JACK LOWERY;

VERNA MARKHAM;

LOLA MCFERSON;

ROY MCFERSON;

NINA MCQUARRIE;

CHARLES MILLER;

GLEN MILLER;

THOMAS MIZE;

EVERETT MOORE;

DONALD MOYER;

LAVONNE NANCE;

THAD NAPPER;

GUY NELSON;

KEITH NICHOLS;

CLYDE OLSON;

LEROY OLSON;

LAVON PALMER;

CARL PEARCE;

AXEL PEDERSEN;

GENE PENHRWOOD,;

LEE PENHRWOOD;

RONALD PERCY;

DIETER POEHLER;

KENNETH REED;

SHIRLEY REED;

DONALD RENSCH;

KIRBY RICE;

PARIS ROBINSON;

AUBREY RUPEL;

RAD SAYMAN;

JACK SEAMONS;

SIDNEY SHARP;

DANIEL SHORT;

JACK SHURTLIFF;

DAWSON SIMPSON;

VIRGINIA SINGLETON;

METTY SLY;

JOHN SNELL;

MYRA SNELL;

FRANK THEALL;

BILL THOMAS;

GRACE THORNTON;

MARY TOLLIVER;

GEORGE WAHLEN;

KIRT WALLING;

VINCENT WEST;

LAURA WICKHAM;

DON WILCOX;

GORDON WILLIAMS;

THOMAS WOOLWORTH;

IRENE C. ALLRED;

ARTELL B. ALLSOP;

DON F. ALLSOP;

ROBERT C. AMUNDSON;

KENNETH A. ANDERSON;

HOWARD D. ANDERSON;

ELLA M. ANDERSON:

ALBERT FRANCIS BAHR;

DURAN C. BAILEY;

RUTH E. BAILEY;

RUSSELL H. BALL;

CECIL G. BARGERON;

ROBERT B. BARKER;

H. ARCHIE BARNES, JR.;

LELAND H. BARTON;

FAUN J. BEESLEY;

FAWN J. BEESLEY;

JOHN E. BELL;

VERNON M. BERGSTROM;

lla

JAMES K. BESSO;

RONALD K. BLIVEN; .

JULIA E. BOBB;

WILLIAM E. BOEHLEN:

ROBERT H. BRACKEN:

DEAN C. BROWN;

WENDELL E. BRUMLEY

ROBERT S. BURTON;

WM. G. BUTLER;

ANNABEL L. BYRD;

LORNA M. CALL;

DEONE C. CANDLAND;

DAVID M. CANDLAND;

JOHN D. CARR;

R. H. CHANNEL;

GEORGE M. CHAPPLE:

CHARLES L. WALKER:

MARTHA J. CHASTAIN:

DON L. CHILD;

KENNETH A.

CHRISTENSEN;

VERNON A. CHRISTENSEN;

LEWIS K. CLARK:

DOYLE R. CLARK:

JACK S. CLARK;

WANDA B. CLAWSON:

WILLIAM C. CLAWSON:

GARTH M. COLTON:

SPENCER C. CONDIE;

OLIVE S. COONS;

HAZEL D. COOPER:

LEWIS R. COOPER:

PAUL M. CROSBY;

JOHN L. DAVIS;

LT.COL. DEAN W. THORPE:

NORBERT V. DEBYLE:

ALBERT M. DEGERING:

SYLVESTER L. DIBELLA:

STANLEY L. DRANEY;

ALVIN D. DURRANT;

RAY M. ECK;

ARNOLD T. ELLSWORTH;

HOLLIS T. FRANCOM

HOLLIS T. FRANCOM;

GEORGE B. FRY;

FRANCES C. FUNK;

ROBERT L. GARVEY;

LT. COL. GERALD E.

DICKSON;

JOHN W. GILMORE;

LUCILE B. GLADE;

NORMAN J. GRIMSHAW,

WILSON C. GUTZMAN;

ARLAN E. HADLEY;

HARLEY M. HANDY;

DALE N. HANSEN;

EARL E. HANSON;

HAROLD J. HARDY;

JAMES C. HARMAN;

IDA G. HARPOLE;

EMERSON R. HARTZELL:

EDWARD D. HAWKINS;

JACK M. HELGESEN;

LORRAINE P. HELGESEN:

LT. COL. HENRY HILLS;

DONALD J. HILDEBRAND;

LESTER G. HINCHCLIFF;

DELBERT L. HIRSCHI;

FRED A. HODAPP;

ELIZABETH H. HOELLEIN;

FRANCIS P. HOLST;

VIOLET B. HOOKER;

PAUL L. HOWARD;

ELNA M. HUILLET;

ALVIN C. HULL;

PHILLIP K. HUMPHREYS;

BOYD A. IVORY;

HOWARD M. IVORY;

CARL L. JENSEN;

DONALD R. JENSEN;

BESS T. JENSEN;

CHRISTINE T. JENSEN;

HARRY E. JOHNSON;

LUCILE S. JOHNSON;

CHARLEY A. JONES;

SAMUEL E. JORGENSEN;

MARTIN A. KASWORM;

A. GEORGE KATO;

JAMES T. KELLY;

CHARLES R. KING;

GLORIA C. KINNE;

E. WILLIAM KLEV;

JERRY G. KRZEMSKI;

DON R. LANGTON;

DONALD E. LAURITSEN;

LOUISE H. LEAKE;

THOMAS S. LEAKE;

JANE M. LEMMONS;

RICHARD C. LESSEY;

SHIRLEY DAN LOCKHART;

ROBERT E. LUDWIG;

JAMES T. LUHN;

JAMES N. LUND;

DALE A. MARTIN;

WILLIAM C. MARTIN;

ALLAN D. MCCOMB;

PATSY N. MCKELL;

ROBERT H. MCKINLAY;

ALBERT R. MCNAMEE;

COL. N.B. MECRARY;

JOHN W. MENEILL;

WILLIAM R. MILLER;

D. L. MONTGOMERY;

DARRELL L. MONTGOMERY;

CHERRIL H. NELSON;

JANE E. NICHOLS;

JAMES L. NIELSEN;

RUTH M. NIELSEN;

LYLE F. NIELSON;

EDWARD L. NOBLE;

WILLIAM P. NYE;

BOYD G. PARKER;

KARL G. PARKER;

IRINTHA S. PARKER;

MICHAEL D. PATRICK;

BOYD W. PAUL;

SYDNEY C. PEACOCK;

ELTON J. PERRY;

RONALD W. PHELPS;

EVAN S. PICKETT;

J. MERLE PRINCE;

CHARLES L. PURVIS:

COL. JAMES R. JENNINGS:

FRANK D. REITER;

LULA CROFT,

representative for J.C.

CROFT, deceased;

MARY TOLLIVER,

representative for: RICHARD

TOLLIVER, deceased;

MAJ. GEN. REX A. HADLEY;

RODNEY C. RHODES;

ESTATE OF RICHARD M.

TOLLIVER;

JOSEPH G. RICHARDSON;

KENNETH J. RIDDELL;

ROBERT G. RIDING;

CHARLES N. ROBERTSON;

COL. JAKE ROGERS;

C. O. ROWE;

EMMA L. RUGGLES;

MAESER M. RUSHTON;

ATHUS DELOSS RUSSELL;

MARGARET F. RUSSELL;

MAJ. JESSE S. WALKER;

MAJ. WM. S. SLEEPER;

JAMES R. SALVAGE;

GERALD D. SANDFORD;

BENJAMIN L. SCHAFER;

FRED L. SEPPI;

WILLIAM H. SEWARD;

WILLAM A. SHEEHAN;

WAYNE E. SHOOP;

DEAN T. SIGMAN;

PAUL A. SIMMONS;

RUTH B. SMITH;

MARY E. SMITH;

RUBY L. SMITH;

T. C. SPRATLEN;

FLEET L. STANTON;

MAXINE E. STEVENS;

NANCY G. STEWART;

HERBERT E. STRAND;

MACK D. SULLIVAN;

JAMES B. SWENSON;

LEIF A. SYVERSEN;

RICHARD P. SYVERSEN;

DONALD D. TAYLOR;

LEWIS D. TAYLOR;

ROBERT G. TAYLOR;

JAMES W. TAYLOR;

LAMAR W. TAYLOR;

T. C. TEASDALE;

l4a

MERLIN E. TEBBS;

LENA D. THEALL;

DON E. THOMAS;

ELVA A. THORNTON;

JOHN R. THUNELL;

CARMEN G. TICE;

DOROTHY T. TICE;

GLEN L. VANLEEUWEN;

VERNON E. VOSS;

GLENNA A. WALE;

RICHARD K. WEST;

KENNETH W. WESTERMAN;

EDWARD E. WIGGINS;

ROY E. WILLIAMSON;

MARVIN H. WOODBURY:

JACK L. WOODS;

M. G. WORKMAN;

R. J. YOUNGER;

EARNEST E. ZIMMERMAN;

MARILYN H. ZIMMERMAN,

for themselves individually and as designated class representatives

on behalf of a certified class of approximately 34,000 federal

military and civilian retirees who have been subject to Utah income

taxation.

ALABAMA AMICI

The cross-appellees in Sizemore v. Rinehart, No. 2900290

(Ala. App. 1992), pet. for cert. pending (Ala., No.1911015),

include:

EDMON L. RINEHART;

FRED MELOF; AND

CHARLES A. OLTS,

1Sa

for themselves individually and as desi

gnated class representatives

on behalf of a certified class of approximately 17,000 federal

military retirees who have been subject to Alabama income taxation.

ARIZONA AMICI

The appellants in Bohn v. Waddell, 790 P.2d 772 (Ariz. T.C.

pn ta a gy ee 807 P.2d 1 (Ariz. T.C. 1991),

pending, No. 1 CA-TX 90-029 (Ariz. App.

12, 1991), include: —

ESTATE OF JOHN L. BOHN;

SHIRLEY BOHN;

DONALD RUTAN;

MARY RUTAN; AND

CARL LINTON,

for themselves individually and, under the doctrine of virtual

representation on behalf of a certified class of approximately 70,000

federal military and civilian retirees who have been subject to

Arizona income taxation.

16a

APPENDIX B

The Supremacy Clause of the United States Constitution, Article VI,

cl.2 provides:

This Constitution, and the laws of the United States

which shall be made in pursuant thereof; and all treaties

made, or which shall be made, under the authority of the

United States, shall be the supreme law of the land; and

the judges in every state shall be bound thereby, anything

in the Constitution or laws of any state to the contrary

notwithstanding.

17a

APPENDIX C

4 U.S.C. § 111 provides in pertinent part:

The United States consents to the taxation of pay or

compensation for personal service as an officer or

employee of the United States...by a duly constituted

taxing authority having jurisdiction, if the taxation does

not discriminate against the officer or employee because

of the source of pay or compensation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.