# Amicus Curiae Brief — Harper v. Virginia Dept. of Taxation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0214%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 509 U.S. 86 ## Text , *. * = a s ‘ ce p/ , ® ‘4 ; U.S. * 4 f 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 i 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 iv 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 Vv 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 vi 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, 22 21 a ix 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 x 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 xi 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 2 (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 ? oe B * nd Qa "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 3 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. 4 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 5 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 6 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 9 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 10 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.”). 11 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.). 12 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. 13 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. 14 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). 15 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. 16 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 19 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 21 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 22 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)). 23 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)). 24 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. 25 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) 26 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), 27 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. 28 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.”). 29 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.”). 30 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 la 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 2a 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. 4a 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 Sa 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. 6a 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 7a 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 8a 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. 9a 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; KENNETH REED; SHIRLEY 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: 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; 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0214%3A11. Public record. Not legal advice.