Petition for Writ of Certiorari — Goad v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

ROLAND LEE GOAD,

Petitioner

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS .

FOR THE FEDERAL CIRCUIT

ROLAND LEE GOAD, Petitioner

310 Sara Lane

Huntsville, Texas 77340-6764

(409) 291-2430

(pro se)

February 1, 1988

meee .

aN \

QUESTIONS PRESENTED

1. Onee jurisdiction had properly attac-

hed on the "little Tucker Act" claims, did the

district court subsequently lose jurisdiction

solely because the Air Force chose to continue

making the challenged payments? (App. 36a).

2. Does the phrase "if it is in the int-

erest of justice" contained in section 1631

of the Judicial Code furnish a valid basis

for the district court to sua sponte enter a

declaratory judgement reaching the merits of

a case within the exclusive jurisdiction of

another tribunal? (App. 4a).

3. Was the district court's refusal to

transfer this case to the Claims Court to

cure a want of jurisdiction, an abuse of its

judicial discretion requiring reversal so as

to avoid manifest injustice? (App. 27a).

4. Does a divorce decree apportioning

“Air Force Retirement benefits" meet the sp-

ecificity needed for a "court order” under

Spouses’ Protection Act? (App. 15a).

5. Does Petitioner have standing to

claim monetary relief against the United

States for the alleged unconstitutional

taking of his pay? (App. 13a).

6. Are the direct payments made without

an opportunity for a prior hearing, an uncon-

stitutional taking of Petitioner's pay in

violation of the Fifth Amendment? (App. 20a).

7. May Congress, by a declaratory statute,

retroactively set aside the construction of

a statute as already applied by the Supreme

Court in an actual case, or direct the courts

for the future to adopt a particular constr-

uction of a 196 year-old statute that Cong-

ress permits to remain in full force®

(App. 20a).

8. Is military retired pay “current” or

"deferred" compensation? (App. 16a-18a).

9. Do the garnishment restrictions in

the Consumer Credit Protection Act apply to

the collection of future earnings apportioned

as property at divorce? (App. 18a).

iii

10. Does the USFSPA preempt the long-

standing rule under Texas practice which

does not permit garnishment of an unliquid-

ated demand?

11. Did Congress impermissibly delegate

legislative power to State judges by permit-

ting them to determine future entitlement to

military pay during dissolution proceedings?

(App. 25a-27a).

12. Did the district court act beyond

its jurisdiction by the imposition of Rule

ll sanctions predicated on its conclusions

of law concerning a matter in the exclusive

jurisdiction of another tribunal? (Ap». 28a).

13. As a basis for its imposition of

sanctions, did the district court impermiss-

ibly consider matters dehors the record?

14, Does the district court's order

that Petitioner shall not file with that

court any further causes of action until all

monetary sanctions imposed have been paid

in full impermissibly deprive Petitioner

of his First Amendment right to petition the

Government for redress of grievances? (App. 33a)

Opinions below 2

Jurisdiction 2

Constitutional Provisions and Statutes 2

that the Case Involves

Statement of the Case 9

Basis For Federal Jurisdiction in the 14

District Court

Reasons for Allowance of the Writ 15

Conclusion 34

Appendix A Opinion, U.S. Court of la

Appeals for the Federal

Circuit, 87-1488, Dec.

9, 1987

Appendix B Final Judgement, District 6a

Court, June 5, 1987

Appendix C Memorandum Opinion and Order 7a

District Court, June 5, 1987

Appendix D Plaintiff'’s Original 34a

Petition

Appendix E Plaintiff's Motion to Con- 43a

solidate Actions

Appendix F Excerpt from Government's 42a

pleading, December 1, 1986

Apvendix

Appendix

Appr ndix

Appendix

App* ndix

i?)

'xcerpt of Petitioner's 4B

pleading, Dec. 9, 1986

Plaintiff's Motion to Tran- 504

sfer Case to the United

States Claims Court to Cure

Want of Jurisdiction

Petitioner's Motion For 5la

Summary Judgement in a

companion case removed from

State court and dismissed

Petitioner's stipulation Sha

filed in a companion cas*

removed from State court

and dismissed

Memorandum and Order of 56a

Dismissal in the companion

case removed from State

court and dismissed

Petitioner's answer in res- 59a

ponse to the Government’s

request for sanctions

TABLE OF CASES

Blanchette v. Connecticut General Ins. 18

Corps., 419 U.S. 102 (1974)

Burkitt v. Glenny, 371 S.W.2d 412 (Tex. 25

Civ.App. - 1963)

Casas v. Thompson, 720 P.2d 921 (Cal. 24

1986)

, cert. denied 107 S.Ct. 659 (1987)

onner v. City of New York, 1 Seld. 31

5 N.Y.) 285 (1851

Davidson v. Logeman Chair Co., 41 S.W. 29

824 (Tex.Civ.App. - 1897)

Zichelberger v. Lichelberger, 582 S.W. 22

2d 395 (Tex. 1979

vans v, vans, 429 F.Supp. 580 32

Cw. D. Okla. 1976)

First Nat'l k of Cleburne v.

S.W. 1101 (Tex.Ct.App. - 1889

Graham, 28

Fitzgerald v. Staats, 429 FP, Supp. 933 16

D.D.C. 1977), "d 578 F.2d 435 (D.C.

Cir), cert. denied 439 U.S. 1004 (1978)

Goad v. United States, 661 F.Supp. passim

3 (S.D. Tex. 19

orier Vv. grier. 731 S.W.2d 931 24

Tex. 1987

SESE Vv. ae pyates. 719 F.2d 17

A Fed. 19

pe sanseras v. Hisquierdo, 439 U.S. 23

1979

Kelly v. United States, 826 F.2d 1049 18

(CA Fed. 1987)

McCarty v. McCarty, 453 U.S. 210 passim

(1981)

Miller v. White, 264 S.W. 176 28

(Tex.Civ.App. - 1924)

Ridgway v. Ridgway, 454 U.S. 46 (1981) 23

Rose v. Rose, 107 S.Ct. 2029 (1987) 23, 24

Ss Co. v. Miller, 34 N.W. 27

235 cos TBE

——

vii

Savings k of Danbu v. Loewe 25

sip U.s. 359 (1917)

Simononok v. Simononok, 20, 21, 24

787 F.2d 1517 (CA 1l 1986)

Sloan v. Douglass, 713 S.#.2d 436 29

(Tex.App. - f08S)

Taylor v. Beckham, 178 U.S. 548 (1900) 31

United States v. Morton, 467 U.S. 19, 21

B22 (1984)

United States v. wW

s.W.2da

efield, 572 25

9 (Tex.Civ.App. - 1978)

Wilhelm v. De ment of the Air Force, 25

CIS F.Supp. Te paca Tex. 1976)

Wissner v. Wissner, 338 U.S. 655 (1950) 22

STATUTES

U.S. Const., Amnd. 1 15, 33

U.S. Const., Amnd. 5 20

10 U.S.C. 1408(a)(2)(C) 13

10 U.S.C. 1408(c) (2) 30

10 U.S.C. 1408(g) 19

10 U.S.C. 1463(a) (1) 15, 19

15 U.S.C. 1673(b)(1)(A) 21

15 U.S.C. 1673(c) 32

28 U.S.C. 1254(1) 2

viii

28 U.S.C. 1346(a) (2) passim

28 U.S.C. 1631 ; 9

28 U.S.C. 2201(a) 9, 10

28 U.S.C.; Fed.R.Civ.P. 1l 10, 33

37 U.S.C. 701(c) 26

32 C.F.R. Part 63.3(e) 13

MISCzLLANEOUS

1 Stat. 280 (May 8, 1792) 25

15 Op.Atty.Gen. 271 (1877) 26

Senate Report No. 502, 97th Congress, 20,30

2nd Session, reprinted in 1982 VJ.S.

Code, Cong. & Ad. News

14 Wright & Miller, Federal Practice 16

& Procedure, sec. 3657 (2nd Ed. 1985)

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

ROLAND LEE Goap 2

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CFRTIORARI

TO THE -UNITED STATES COURT OF APPI ALS

FOR THE FEDERAL CIRCUIT

The Petitioner, Roland Lee Goad, resp-

ectfully prays that a writ of certiorari

issue to review the decision and opinion of

the United States Court of Appeals for the

Federal Circuit entered in this proceeding

on December 9, 1987.

1./ This caption contains the names of all

parties.

OPINIONS BELOW

The decision and opinion of the Court of

Appeals, which will not be reported, appears

in the Appendix. (App. la). The final judge-

ment and the memorandum opinion and order

rendered by the United States District Court

for the Southern District of Texas, Houston

Division, on June 5, 1987 has been reported

in 661 Federal Supplement at 1073, and is

reproduced in the Appendix (App. 6a-33a).

JURISDICTION

The érctuies and opinion of the Court of

Appeals for the Federal Circuit was entered

on December 9, 1987 and this petition for

writ of certiorari was filed within 90 days

of that date. This Court's jurisdiction is

invoked under Title 28, United States Code,

Section 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

THAT THE CASE INVOLVES

The following constitutional and stat-

utory provisions are involved in this case:

U.5. Const., Amnd. No. i:

Congress shall make no law respecting an

establishment of religeon, or prohibit-

ing the free exercise thereof; or abrid-

ging the freedom of speech, or of the

press; or the right of the people peac-

ably to assemble, and to petition the

Government for a redress of grievances.

Us Const.» Amnd. No. 5:

No person shall be held to answer for a

capital, or otherwise infamous crime, un-

less on a presentment or indictment of a

Grand jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private prop-

erty be taken for public use, without

just compensation.

10 U.S.C. g 1408(a)(2)(C):

(a) In this section ...

(2) “Court order" means a final decree

of divorce, dissolution, annulment, or

legal separation issued by a court, or a

court ordered, ratified, or approved pro-

perty settlement incident to such a dec-

ree (including a final decree modifying

the terms of a previously issued decree

of divorce, dissolution, annulment, or

legal separation, or a court ordered,

ratified, or approved property settlement

incident to such previously issued decree).

which ... te

specifically provides for the payment of an

amount, expressed in dollars or as a perc-

entage of disposable retired or retainer

pay, from the disposable retired or ret-

ainer pay of a member to the spouse or

former spouse of that member.

10 U.S.C. Z 1408(c)(2):

(2) Notwithstanding any other provision of

law, this section does not create any

right, title, or- interest which can be sold,

assigned, transferred, or otherwise disposed

of (including by inheritance) by a spouse

or former spouse.

10 U.S.C. % 1408(g):

(g) A person receiving effective service of

a court order under this section shall, as

soon aS possible, but not later than 30

days after the date on which effective

service is made, send a written notice of

such court order (together with a copy of

such order) to the member affected by the

court order at his last known address.

10 U.S.C. 2 1463(a)(1):

(a) There shall be paid from the Fund -

(1) retired pay payable to persons on

the retired lists of the Army, Navy, Air

Force, and Marine Corps.

15 U.S.C. Z~ 1673(b)(1)(A):

(b)(1) The restrictions of subsection (a) of

this section do not apply in the case of

(A) any order for the support of any per-

son issued by a court of competent jurisd-

iction or in accordance with an administr-

ative procedure, which is established by

State law, which affords substantial due

process, and which is subject to judicial

review.

15 J.S.C. Z£ 1673(c):

State, and no State (or officer or agency

thereof) may make, execute, or enforce any

order or process in violation of this

section.

28 U.S.C. § 1254(1):

Cases in the courts of appeal may be rev-

iewed by the Supreme Court by the follow-

ing methods:

(1) By writ of certiorari granted upon

the petition of a party to any civil or

criminal case, before or after rendition

of judgement or decree.

28 U.S.C. J 1346(a)(2):

(a) The district courts shall have original

jurisdiction, concurrent with the United

States Claims Court of:

(2) Any other civil action or claim agai-

nst the United States, not exceeding $10,

000 in amount, founded either upon the

Constitution, or any Act of Congress, or

any regulation of an executive department,

or upon any express or implied contract

with the United States, or for liquidated

or unliquidated damages in cases not sound-

ing in tort, except that the district cou-

rts shall not have jurisdiction of any

civil action or claim against the United

States founded upon any express or implied

contract with the United States or for

liquidated or unliquidated damages in cases

not sounding in tort which are subject to

sections 8(g)(1) and 10(a)(1) of the Cont-

ract Disputes Act of 1978. For the purpose

of this paragraph, an express or implied

contract with the Army and Air Force Exch-

ange Service, Navy Exchanges, Marine Corps

Fxchanges, Coast Guard Exchanges, or Exch-

ange Councils of the National Aeronautics

and Space Administration shall be consid-

ered an express or implied contract with

the United States.

28 U.S.C. Z# 1631:

Whenever a civil action is filed in a court

as defined in section 610 of this title or

an appeal, including a petition for review

of administrative action, is noticed for or

filed with such court and that court finds

that there is a want of jurisdiction, the

court shall, if it is in the interest of

justice, transfer such action or appeal to

any such other court in which the action or

appeal could have been brought at the time

it was filed or noticed, and the action or

appeal shall proceed as if it had been filed

in or noticed for the court to which it is

transferred on the date upon which it was

actually filed in or noticed for the court

from which it is transferred.

28 U.S.C. 2 220i fa):

(a) In a case of actual controversy within

its jurisdiction, except with respect to

Federal taxes other than actions brought

under section 7428 of the Internal Revenue

Code of 1954 or a proceeding under section

505 or 1146 of title 11, any court of the

United States, upon the filing of an appr-

opriate pleading, may declare the rights

and other legal relations of any interested

party seeking such declaration, whether or

not further relief is or could be sought.

Any such declaration shall have the force

and effect of a final judgement or decree

and shall be reviewable as such.

Fed. Rules Civ. Proc., Rule ll, 28 U.S.C.:

Every pleading, motion, and other paper of

a party represented by an attorney shall be

Signed by at least one attorney of record

in the attorney's individual name, whose

address shall be stated. A party who is not

represented by an attorney shall sig the

party's pleading, motion, or other paper and

state the party's address. Except when oth-

erwise specifically provided by rule or st-

atute, pleadings need not be verified or

accompanied by affidavit. The rule in equity

that the averments of an answer under oath

must be overcome by the testimony of two

witnesses or of one witness sustained by

corroborating circumstances is abolished. _

The signature of an attorney or party con-

stitutes a certificate by the signer that

the signer has read the pleading, motion, or

other paper, that to the best of the sign-

er‘'s knowledge, information, and belief

formed after reasonable inquiry it is well

grounded in fact and is warranted by exist-

ing law or a good faith argument for the

extension, modification, or reversal of ex-

isting law, and that it is not interposed

for any improper purpose, such as to harass

or to cause unnecessary delay or needless

increase in the cost of litigation. If a

pleading, motion, or other paper is not

Signed, it shall be stricken unless it is

signed promptly after the omission is called

to the attention of the pleader or movant.

If a pleading, motion, or other paper is

signed in violation of this rule, the court,

upon motion or upon its own initiative,

Shall impose upon the person who signed it,

a represented party, or both, an appropri-

ate sanction, which may include an order to

pay to the party or parties the amount of

the reasonable expenses incurred because of

the filing of the pleading, motion, or other

paper, including a reasonable attorney's fee.

37? U.S.C. 2 9Gita).

Force may not assign his pay, and if he

does so, the assignment is void.

32 C.F.R. Part 63.3(e):

Court Order. As defined under 10 U.S.C. 1408

(a)(2), a final decree of divorce, dissolu-

tion, annulment, or legal separation issued

by a court, or a court ordered, ratified, or

approved property settlement incident to

such decree. It includ*s a final decree mod-

ifying the terms of a previously issued de-

cree of divorce, dissolution, annulment, or

legal separation, or a court ordered, rati-

fied, or approved property settlement inci-

dent to such previously issued decree. The

court order must provide for the payment to

the member's former spouse of alimony,

child support, or a division of property. In

sat 2 aed

the case of a division of property, the co-

urt order must specify that the payment is

to be made from the member's disposable

retired pay.

STATEMENT OF THE CASE

Petitioner's action brought pursuant to

the Tucker Act (28 U.S.C. 1346(a)(2)) claimed

amounts of his pay that had been diverted by

the Air Force under the Uniformed Services

Former Spouses’ Protection Act (USFSPA). The

Petitioner claimed $9,058.14 (App. 36a) and

expressly did not ask for declaratory relief

against the United States. He only claimed

his back pay. During a pre-trial conference

on April 13, 1987, the district court stated

that Petitioner's claims had, by that time,

aggregated to an amount above the $10,000

ceiling for its “little Tucker Act" jurisdi-

ction, but, nevertheless, refused to transfer

the case to the Claims Court stating that to

do so “would not be in the interest of just-

ice" (App. l4a). The district court then sua

sponte entered a declaratory judgement that

disposed of Petitioner's Tucker Act claims

(App. l4a-27a), granted the Government's

motion for summary judgement, and dismissed

Petitioner's Tucker Act claims and imposed

a lump-sum Rule 11 sanction of $4,748.40

against the Petitioner based on its findings

of fact and conclusions of law devolving

from the declaratory judgement (App. 33a).

The district court further imposed a non-

monetary sanction ordering that Petitioner

shall not file with the district court any

further causes of action until all monetary

sanctions imposed have been paid in full

(Apo. 33a). On appeal, the Federal Circuit

vacated the district court's grant of summary

judgcment (App. 3a) and remanded to the dist-

rict court with instructions to dismiss the

Tucker Act claims for lack of jurisdiction

(App. 3a). Relying on the district court's

“thorough analysis” as a basis for its action,

(App. 4a) the Court of Appeals affirmed the

imposition of sanctions (App. 5a). The

‘

“

mandate issued by the Clerk of the Federal

Circuit on December 21, 1987 (App. 5.la) dis-

closes that the district court judgement is

AFFIRMED. Petitioner seeks review in this

Court by this petition for certiorari.

Petitioner is a member of the Regular

Air Force on the retired list entitled to

earn pay for his continuing military status

and his availability for recall to active duty

if deemed in the interests of national defense

by the Secretary of the Air Force.

Petitioner was divorced pursuant to a

decree signed by a visiting judge in the 272nd

District Court of Brazos County, Texas, on

September 19, 1980. In an apportionment of

community property, his former spouse was

awarded a fraction of Petitioner's “Air Force

Retirement benefits." (App. 18a). No appeal

was taken.

On June 26, 1981, this Court held that

retired pay was not a species of property

subject to apportionment in dissolution pro-

ceedings.

On October 19, 1981, Petitioner's former

spouse initiated an independent suit in State

court seeking to vacate the property division

aspects of the divorce decree and relitigate

such apportionment so as to obtain an offset-

ting award of other property for the expected

value of her interest in Petitioner's future

pay. She was concurrently granted injunctive

relief which encumbered all of Petitioner's

tangible property. Petitioner's repeated eff-

orts to have the action dismissed failed. It

eventually terminated in Federal Court on

April 16, 1987 (App. 56a).

The USFSPA was enacted, effective Febru-

ary 1, 1983, purporting to retroactively annul

this Court's McCarty decision. The statute

provides in relevant part that in the case of

ee ee ee

a division of community property, the “court

2 / McCarty v. McCarty, 453 U.S. 210 (1981).

order" must specify that the payment is to

be made from the member's disposable retired

pay.

On June 24, 1985, Petitioner's former

Spouse requested the Air Force to honor the

1980 divorce decree apportioning “Air Force

Retirement benefits” as a “court order” and

to make payments to her of a portion of Peti-

tioner's disposable retired pay. Her request

was approved and payments began on September

3, 1985 and have continued each month to the

present time. Petitioner's objections filed

with the Air Force have all been rejected

(App. 10a).

On Jan. 29, 1986, Petitioner brought a

counterclaim in the pending State court action

that had been on the docket since October 19,

1981 and joined the Air Force as a third party

seeking an order quashing, dissolving and re-

3./10 U.S.C. 1408(a)(2)(C);32 CFR Part 63.3(e).

calling the writ of garnishment. The Air Force

was joined in its capacity as garnishee, an

indispensable party under Texas practice. The

State action was then removed to Federal Court

where the Government was severed as a defend-

ant and the remaining actions between Pet-

itioner and his former spouse were dismissed

without prejudice. (App. 56a).

On September 8, 1986, Petitioner brought

his Tucker Act claims in district court seek-

ing recovery of the amounts of his pay that

had been withheld up to that time, such sum

being $9,058.14, an amount within the dist-

rict court's jurisdiction (App. 34a).

BASIS FOR FEDERAL JURISDICTION

IN THE DISTRICT COURT

Jurisdiction in the district court was

based on Title 28, United States Code, Section

1346(a)(2) (The Tucker Act). The statute gives

district courts concurrent original jurisdi-

ction with the United States Claims Court

over any action or claim to recover fees,

gt Mey

salary or compensation for official services

of officers or employees of the United States

not exceeding $10,000 in amount. Petitioner's

Claim for back pay is based on 10 U.S.C.

1463(a)(1) which provides that there shall be

paid from the Department of Defense Retirement

Fund “retired pay payable to persons on the

retired lists of the Army, Navy, Air Force,

and Marine Corps." Petitioner is a person on

the retired list of the Air Force. At the

time of filing, his claims aggregated to

$9,058.14, an amount within the $10,000 cei-

ling for claims filed in district courts.

REASONS FOR ALLOWANCr: OF THE WRIT

The decisions below have effectively

sealed the doors of all courts in this Nation

to the Petitioner and all similarly situated

members of the armed forces, denying to them

their First Amendment right to petition the

Government -for a redress of grievances. The

decisions below also conflict with the dec-

isions of other Courts of Appeal, Stat« courts

of last resort and valid decisions of this

Court; and also have so far departed from the

ace’ pted and usual course of judicial proce-

edings as to call for an exercise of this

Court's power of supervision so as to avoid

manifest injustice and to correct the funda-

mental errors made in the disposition of this

case by the courts below.

Tucker Act Jurisdiction

The controlling issue is the size of each

individual claim, not the number of claimants.

The rule was stated in this fashion: The fact

that a party has two or more claims for $10,

000 or less, does not deprive the district

courts of jurisdiction. Fitzgerald v. Staats,

429 F.Supp. 933, 934-35 (D.D.C. 1977), aff'd

578 F.2d 435 (D.C. Cir.), cert. denied 439

U.S. 1004 (1978). Cf. 14 Wright & Miller,

Federal Practice & Procedure, Sec. 3657 at

p. 287, n.33 (2nd Ed. 1985). In this case,

fo re OR te eye te eae eet Les

ae ee nes

ip a ee: F

Petitioner's claims (even if aggregated) at

the time of filing, were within the jurisdi-

ction of the district court. The court only

lost jurisdiction (if, indeed it did lose its

jurisdiction) because the Air Force chose to

continue making the challenged deductions from

Petitioner's pay after the original complaint

had been filed in the district court. There

seems to be a sufficient amount of confusion

on this issue to justify this Court's plenary

review,

Standing

The district court held that Petitioner

had no standing to claim monetary relief from

the United States because the USFSPA does not

Waive sovereign immunity for such claims

(App. 13a). However, claims for military pay

and allowances are actionable under the Tucker

Act. Heisig v. United States, 719 F.2d 1153,

1155 (CA Fed. 1983). Under the Tucker Act one

must only ask if the constitutional clause or

legislation which the claimant cites can fai-

rly be int-rpreted as mandating compensation

from the Federal Government for the damage or

deprivation sustained. Kelly v. United states,

826 F.2d 1049, 1052 (CA Fed. 1987). Petition-

er‘s claims are similar to the Kelly case.

In that case the Government contended that Ms.

Kelly could not obtain a monetary award be-

cause the statute establishing the Survivor's

Benefit Program did not provide money damages

for its violation. Furthermore, there is no-

thing in the USFSPA that would support a con-

clusion that it withdrew the Tucker Act rem-

edy, because:

A new statute will not be read as wholly or

even partially amending a prior one unless

there exists a “positive repugnancy” bet-

ween the provisions of the new and those of

the old that cannot be reconciled.

Blanchette v. Connecticut General Ims. Corps.

419 U.S. 102, 134 (1974). Also, (and most

significantly) the USFSPA is not the statute

under which Petitioner bases his claim for

er Gee ae ee eee ee ee ee Sky - ae Te

+" 3 :

back pay. His pay claim is based on 10 U.S.C.

1463(a)(1) which provides authority for the

Air Force to disburse from the Department of

Defense Military Retirement Fund “retired pay

payable to persons on the retired list of the

Army, Navy, Air Force, and Marine Corps."

Morton

The district court held that sovereign

immunity shields the Government from liability

so long as a “court order” is “regular on its

face" and that the Tucker Act provides no

basis for Petitioner's claims because the di-

vorce decree is a “court order" and “regular

on its face." This position is premised on

this Court's holding in United States v.

Morton, 467 U.S. 822, 836 (1984).

Section 1408(g) of title 10 only requires

the Government to notify the Petitioner at

his last known address, but there is no req-

uirement that P titioner actually receive any

notice, and if he does get it, there is no

forum for asserting grounds for non-recognitio

of the "court order.” The_Senate Report exp-

lains the statute:

This subsection is designed to provide a

measure of protection to the member whoss

pay is affected by a court order, so that

the member may take whatever action, legal

or otherwise, which the member may believe

to be appropriate in response to the serv-

ice of the court order. However, there is

no requirement under subsection (z) that

the member actually receive notice of the

service of the court order; the only reqg-

uirement is that such notice be sent.

Senate Report No. 502, 97th Cong., 2nd Sess.23

reprinted in 1982 U.S. Code, Cong. & Ad. News

1618,

These Air Force* procedures have already

been found constitutionaly infirm in Simononok

v._Simononok, 787 F.2d 1517, 1521 (CA 11 1986)

where the court stated that: “It is beyond

peradventure that Government cannot take a

portion of an individual's pay, pay to which

he is statutorily entitled, and give it to

another without at least complying with the

requirements of due process." The court went

Gon to hold that Morton provided no bar to iiajor

Simononok's claims. 787 F.2d at 1523. while

q Major Simononok sought damages in tort, Petit-

joner seeks a non-tort remedy under the Tucker

Act. In contrast to 3imononok, the district

4 court expressly held that Morton precluded

any recovery by Petitioner in circumstances

‘ virtually the same as the claims in 3imononok.

(App. 13a).

\This Court has jurisdiction to review

4 this case by certiorari to resolve this conf-

lict between the Federal and Eleventh Circuits.

Garnishment for support

The district court asserted that the with-

holding of Petitioner's pay was not a garnish-

ment and further that such withholding was in

compliance with an “order for support" as def-

ined in 15 U.S.C. 1673(b) (App. 18a-19a). For

a withholding to fall within the support order

exception, the order must be one “which is sub-

ject to judicial review."15U.5.C.1673(b)(1) (A).

Furthermore, post-divorce spousal maintenance

is contrary to public policy in Texas. The

Texas Supreme Court expressly declined an in-

vitation to characterize an award of railroad

retirement benefits as spousal support in orde

to circumvent federal law. Cf. Eiche lberger v.

Eichelberger, 582 S.W.2d 395, 402-403 (Tex.

1979). As the court obscrved: “This is a leg-

islative, not a judicial function, and may req

uire constitutional amendments which are the

responsibility of the Legislature." 582 S.wW.2d

at 403. In Wissner v. Wissner, 338 U.S. 655,

659-660 (1950), this Court stated that a com-

munity property division of government insur-

ance procreds would constitute a seizure in

violation of a provision against “attachment,

levy, or s‘izure," and this Court was careful

to identify a vossible exception for alimony oa

child support cases. The basis for this €xcep-

tion was that family support obligations are

deeply rooted moral responsibilities, while th

»)

community property conerpt is more akin to an

amoral business relationship. Later in Hisoui-

erdo v. Hisquierdo, 439 U.S. 572, 587 (1979),

this Court construed the amendment to author-

ize the garnishment of federal Salaries for

+ alimony and child support obligations to ex-

pressly override the anti-attachment provisions

for support claims but not for community pro-

~ perty claims, which are not based on need.

. This same proposition was affirmed in later

cases: McCarty v. McCarty, 453 U.S. 210, 230

(1981); Ridgway v. Ridgway, 454 U.S. 46, 56-

> 57 (1981); Rose v. Rose, 107 3.Ct. 2929, 2037

(1987). we note that Wissner was authored by

Justice Tom Clark, a Texan with some knowledge

of community property principles.

The district court's refusal to character-

ize the withholding as a garnishment flies in

the face of a contemporaneous determination by

the Texas Supreme Court that "The USFSPA prov-

isions are intended only as a limit on the am-

ount of disposable retired pay which can be

garnished and paid out by the service secret-

aries pursuant to court orders.“Grier v. Grier,

73i 3.ad.2d 931, 933 (Tex. 1987). Also the Cal-

ifornia Supreme Court has determined that:

"The Uniformed Services Former Spouses' Prot-

ection Act is primarily concerned with the

garnishment of military retired pay.” Casas v.

Thompson, 720 P.2d 921, 931-2 (Cal. 1986),

cert. denied 107 S.Ct. 659 (1987). The Eleventh

Circuit has found that the direct payment pro-

cedures established pursuant to the USFSPA fits

the definition of garnishment. Simononok v.

Simononok, 787 F.2d 1517, 1521 n.12 (CA 11

1986). Justice White of this Court had occasion

to refer to "direct garnishment” when discus-

sing the procedures established pursuant to

the USFSPA. Rose v. Rose, 107 S.Ct. 2029, 2045

(1987) (White, J., dissenting).

Garnishment of unliguidated demands

No authority «xists under Texas practice

for a court to order a garnishee to pay monirs

@ that will come due at a future date. In United

i States v. Wakefield, 572 3..7.2d 569 (Tex.Civ.

q App. - 1978), the court refused to allow the

? garnishment of future accruing pay. in rcver-

: sing the trial court that had ordered the gar-

@ nishment, the appeals court cited Burkitt v.

clenny, 371 S.W.2d 412 (Tex.Civ.App. - 1963)

B ror the proposition that garnishment is allowed

+ only for a debt absolutely owed at the time

” the garnishee files his answer. Cf. Savings

7 Bank of Danbury v. Loewe, 242 U.S. 357, 358

(1917); Wilhelm v. Department of the Air Force,

718 F.supp. 162, 164 (S.D. Tex. 1976).

The Anti-Assignment Statute

: Provision was made by the Act of May 8,

7 1792, Chapter 37, Section 4 (1 Stat. 280):

7 "Sec. 4 And be it further enacted that no ass-

4 ignment of pay made after the first day of June

‘ next, by a non-commissioned officer or private

B shall be valid."

ith only slight modification, this stat-

ute was codified in Title XIV, Section 1291 of .

the Revised Statutes of 1878. Attorney General

Charles Devens explained its purpose. 15 Op.

Atty.Gsn. 271, 273 (1877). The statute is now

codified in 37 U.2.C,70l1(c), and in simple

shirtsleeve English commands that Petitioner's

pay not be assigned. In construing this prov-

Retired pay cannot be attached to satisfy a

property settlement incident to the dis~ol-

ution of marriage. In addition, an Army ¢n-

listed man may not assign his pay. 37 U.S.C.

~ 701(c)...This limitation would appear to

serve the same purpose as the prohibition

against “anticipation” discussed in Hisgui-

erdo, 439 U.S. at 588-589.

MeCarty v. McCarty,453 U.S. 210, 228n.22(1981).

ision, this Court said: |

The district court states that to the extent

that 37 U.S.C. 701(c) might be construed as

reflecting a policy against permitting the

division of military retirement pay as comnm-

unity property, such a construction was viti-

ated by the pas age of the FSPA, through wh-

pe ey eee Le ee ey Oe ee ees ~~

ich Congress has established a contrary

intention (App. 20a). The district court also

asserted that the “direct payments” did not

entail an assignment by the Petitioner. Id.

This presents a fundamental constitutional

question that may not lightly be ignored.

(See question no. 7 at pags ii supra.) The

direct payments, by whatever name, involves

an assignment of Petitioner's pay:

The proceeding by garnishment is for the

purpose of effecting a compulsory assign-

ment of a claim by process of law. It is

entirely obvious that if a claim be of

such nature that th claimant cannot make

a voluntary assignment of it, the law will

not enforce a compulsory assignment.

St. Joseph Mfg. Co. v. Miller, 34 N.w. 235,

236 (Wise. 1887).

Is retired pay “current” or

"deferred" compensation ?

In McCarty * this Court reiterated the

Government's century-old position that mili-

tary retired pay is current compensation for

continuing limited services, even though the

decision was not based on this categorization.

Permitting the pay to be treat-d as property

a. 7 453 U.S. at 221-22.

rarned by past military service in th: context

of state divorce law and current comp*nsation

for limit d current service in the context of

federal law, pres‘nts a situation difficult

to reconcile. Tt would seem that military ret-

ired pay must be either deferred or current

compensation, but not both. By definition, ™

the terms are mutually exclusive. It is dif-

ficult to see how these two theories can co-

exist. Does the reversal of McCarty by Cong-

ress, then, also reverse the century-old

doctrine reaffirmed by McCarty? In Texas,

there has been considerable litigation to

define “current wages." The term has been

defined as compensation to be paid periodic-

ally or from time to time for personal s<rv-

ices, as the servic‘s are rendered or the

work performed. Miller v. White, 264 s.W.

176 (Tex.Civ.App. - 1924); First Nat'l Bank of

Cleburne v. Graham, 22 S.wW. 1101 (Tex.Ct.

App. - 1889). The term has been construed

;

as necessarily implying the relationship of

master and servant, or employer and employee.

Past due wages left with the employer because

they cannot be collected are exempt. Davidson

v. F.H. Logeman Chair Co., 41 3.0. 824 (Tex.

Civ.App. - 1897). A professional athlete,

after completing his employment contract, was

paid $80,000 per year in deferred compensation

which was found to be exempt as current wages.

Sloan v. Douglass, 713 5.4.2d 436, 438 (Tex.

App. - 1986). Professional soldiers should be

entitled to claim the same exemptions as pro-

fessional athletes.

Does Petitioner's former spouse own all

right, title and interest in, and to, a

portion of Petitioner's future pay?

The district court asserted that Petit-

ioner’s former spouse now owns as her sole and

separate property, a portion of Petitioner's

future pay. (App. 17a). In McCarty, this Court

expressed disapproval of a similar as:ertion

stating that “the law of the State is not

competent to do this.” - This position is

5 / 453 U.S. at 233.

also at odds with the provisions of 10 U.S.C.

1408(¢c)(2) providing that the USFSPA does not

create any right, title, or interest which can

be sold, assigned, transferred, or otherwise

disposed of (including by inheritance) by a

spouse or former spouse. The Senate Report

«xplains:

A member has no right to transfer his ret-

ired pay on death. Nor can the member sell,

assign, transfer, or otherwise dispose of

the member's right to receive pay. It is

for this reason that paragraph (2) of sub-

section (c) provides that a spouse or for-

mer spouse does not have any transferable

right, title, or interest in the member's

retired or retainer pay.

Senate Report No. 502, 97th Cong., 2nd Sess.

16, reprinted in 1982 U.S. Code, Cong. & Ad.

News 1611.

Property law in general, and community

property law specifically, treats spouses who

receive a division of community property as

the sole owner of that property. The attrib-

utes of sole ownership automatically attach,

including the unfettered right to transfer or

dispose of the property without limitation.

Retired pay, being an emolument of public

office, has none of the essential attributes

of community property - or even personal pro-

perty. "The prospective salary or other emol-

uments of a public office are not the property

of the officer nor the property of the State.

They are not property at all. They are like

q daily wages unearned, and which may never be

earned." Conner v. City of New York, 1 sSeld.

(5 N.Y.) 285, 296 (1851). “Such an officer

has no property in the prospective compensa-

tion attached to his office, whethsr it be in

the shape of salary or fees." Id. at 301.

Cf. Taylor v. Beckham, 178 U.S. 548, 577

(1900).

Do the garnishment restrictions in the

Consumer Credit Protection Act apply to

enforcement of community property div-

isions of disposable retired pay?

Federal statutes are to be construed so

as to achieve a uniform application through-

out the United States, therefore, it is ¢nt-

ete Nee es, a a

irely repugnant to our system of federalism

that the statutory exemptions from garnish-

ment provided in the CCPA are applicable to

disposable retired pay received in Oklahoma

but not in Texas. Cf. Evans v. Evans, 429

F.Supp. 580, 582 (#.D. Okla. 1976). This is

esprcially true in light of the Congression

command that no court may make, execute, or

enforce any order or process in violation o

the CCPA. 15 U.S.C. 1673(c).

Did the district court impermissibly

transgress its authority and jurisd-

iction by imposing monetary sanctions

based on consideration of matters de-

hors the record? (App. 3la-32a).

In its findings of fact respecting the

imposition of sanctions (App. 3la) the dist

ict court considered Petitioner's separate

civil rights suit pending before a differ-

ent federal judge, and a removed case that

already been dismissed without prejudice by

yet another federal judge (App. 56a) as the

basis for its determination that Petitioner

had

Tucker Act claims were vexatious pursuant to

Rule 11. However, the notes of the advisory

committee following Rule 11 explain:

To assure that the efficiencies achieved

through more effective operation of the

pleading regimen will not be offset by the

cost of satellite litigation over the imp-

osition of sanctions, the court must to the

extent possible limit scope of sanctions to

the record.

Did the district court's action in this

respect, show a clear abuse of discretion re-

quiring this Court to exercise its supervis-

ory authority to review the district court's

action by way of certiorari so as to avoid

manifest injustice?

Does the district court's order that Pet-

itioner shall not file with that court any

further causes of action until all monet-

ary sanctions imposed have been paid in

full impermissibly deprive the Petitioner

of his First Amendment right to petition

the Government for redress of grievances?

This is the birthright of every American,

and the accepted heritage of all civilized

people. This right is regarded as equally

sacred and guarded in the high precincts of

34.

prominence and power as well as the remote

and obscure dwelling place of the dispossessed |

and disfranchised citizen abiding at 310 Sara

Lane in Huntsville - the Goad abode.

CONCLUS ION

ror all the foregoing reasons, a writ of

certiorari should issue to review the decis-

ion and opinion of the Court of Appeals for

the Federal Circuit entered on December 9,

1987 and the memorandum opinion and order of

the District Court for the Southern District

of Texas entered on June 5, 1987. ;

Respectfully submitted.

pe oe , ‘ 4? f,

_t Late Sy iene q

ROLAND LEE GOAD, Petitioner (pro sé

310 Sara Lane ~

Huntsville, Texas 77340-6764

(409) 291-2430

February 1, 1988

App. A la

Unpublished opinion of the United States

Court of Appeals for the Federal Circuit

decided December 9, 1987.

Note: This opinion has not been prepared

for publication in a printed volume be-

cause it does not add significantly to the

body of law and is not of widespread legal

interest. It is a public record. It is not

citable as precedent. The decision will

appear in tables published periodically.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

87-1488

ROLAND LEE GOAD,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Defendant-Appellee.

DECIDED: December 9, 1987

Before MARKEY, Chief Judge, NEWMAN and

ARCHER, Circuit Judges. PER CURIAM

App. A (Cont*d) 2a

DECISION

Roland Lee Goad (Goad) appeals from

a judgement of the United States District

Court for the Southern District of Texas,

661 F.Supp. 1073 (S.D. Tex. 1987): (1)

dismissing for lack of jurisdiction Goad's

monetary claim under the Tucker Act, 28

U.S.C. 2 1346(a)(2), because it exceeded

$10,000; (2) declining to transfer the

action to the United States Claims Court

pursuant to 28 U.S.C. % 1631 because tran-

sfer would not be in the interest of just-

ice; (3) imposing sanctions on Goad under

Fed.R.Civ.P. 11; and (4) granting summary

judgement to the United States on Goad'‘s

claim for declaratory relief. We affirm

the dismissal for lack of jurisdiction,

the refusal to transfer and the imposit-

ion of sanctions. Because the district

court lacked jurisdiction over Goad'‘'s

Claims for declaratory relief, we vacate

App. A (Cont'd) 3a

the grant of summary judgement, and remand

to the district court with instructions to

dismiss the complaint for lack of jurisdi-

ction. Thus we affirm-in-part and vacate-

in-part.

OPINION

We agree with the parties’ assertions

that the district court lacked jurisdiction.

Goad's monetary claims exceed $10,000, and

the declaratory relief Goad seeks is sub-

ordinate to a monetary award. McKeel v.

Islamic Republic of Iran, 722 F.2d 582,

590-91 (9th Cir. 1983) (district court

lacked jurisdiction to declare that gover-

nment actions constituted a 5th amendment

taking, when plaintiff's real aim was to

obtain damages of over $10,000), cert.

denied, 469 U.S. 880 (1984); Gentry v.

United States, 546 F.2d 343, 355 (Ct.Cl.

1976); see Bragg v. Keohane, 820 F.2d.

402, 403 (Fed. Cir. 1987) (district court

App. A (Cont'd) 4a

lacked jurisdiction over suit for injunc-

tive nnd daabatoe relief tied to damages

exceeding $10,000).

The district court's lack of juris-

diction did not preclude its acting on Goad'‘s

transfer request. 28 U.S.C. $ 1631. The

court's thorough analysis, 1077-80, supp-

orts its conclusion that Goad's claims

lacked substantive merit, and that transfer

would not have been in the interest of jus-

tice. The court did not abuse its discret-

ion in refusing to transfer the action to

the Claims Court. See generally Galloway

Farms, Inc. v. United States, No. 87-1458,

slip op. at 6-9 (Fed.Cir. Dec. 2, 1987)

(construing the “interest of justice" pro-

vision of 28 U.S.C. $ 1631).

That the district court lacked juris-

diction over the action did not prevent it

from imposing sanctions under Fed.R.Civ.P.

11. See Hewitt v. City of Stanton, 798 F.2d

App. A (Cont'd) 5a

1230 (9th Cir. 1986) (affirming imposition

of sanctions on party whose attempt to rem

ove case to federal court was frivolous);

Itel Containers Int'l Corp. v. Puerto Rico

Marine Management, Inc., 108 F.R.D. 96

(D.N.J. 1985) (imposing sanctions on party

who concealed court's lack of diversity

jurisdiction). Goad has shown neither

clear error in the district court's find-

ings of fact nor error in its legal con-

clusions underlying its imposition of

sanctions. The district court did not

abuse its discretion in imposing sanctions.

Thomas v. Capital.Sec. Serv., Inc., 812

F.2d 984, 989 (5th Cir.) reh'g en banc

granted, 822 F.2d 511 (5th Cir. 1987).

ApD. Axs 5. la

YNITZD STATS: COURT. OF APP ALU

FOR THE F2DERAL CIRCUIT

87-1488

ROLAND LE? GOAv,

Plaintiff-Appellant,

Vv.

UNITED STATES OF aMERICA,

tt}

Defendant-Appellee.

JUDG: MENT

ON _APP™AL from the UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF TEXAS

in CASE NO(S). H-86-3432

This CAUSE having been heard and considered,

ORDERED and ADJUDGED:

AFF IR#iIcD

ENTERZD BY ORDER OF THE COURT

DATED DEC. 9, 1987.

(signed)

Francis X. Gindhart, Clerk

ISSUED AS A MANDATE: DEC. 21, 1987

App. B 6a

“Final Judgement” entered in the district

court on June 5, 1987, from which Petitio-

ner appealed to the United States Court of

Appeals for the Federal Circuit.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF T=XAS

HOUSTON DIVISION

ROLAND LEE GOAD, )

Plaintiff,

V. § CIVIL ACTION

><> <>

UNITED STATES OF senate No. H-86-3432

Defendant. )

FINAL JUDGEMENT

For the reasons set forth in this

Court's accompanying Order, this action

is hereby DISMISSED.

This is a FINAL JUDGEMENT.

SIGNED at Houston, Texas on this

_ 5 day of June, 1987.

(signed)

DAVID HITTNER

United States District Judge

App. C 7a

“Memorandum Opinion and Order" entered by

the District Court on June 5, 1987 from

which Petitioner appealed to the United

States Court of Appeals for the Federal

Circuit. This case has been published and

is found in 661 F.Supp. 1073.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD,

Plaintiff,

CIVIL ACTION

No. H-86-3432

UNITED STATES OF mores

Defendant. '

MEMORANDUM OPINION AND ORDER

Pending before this Court is defend-

ant United States of America's Motion to

Dismiss or, in the Alternative for Summ-

ary Judgement. This Court heard oral arg-

ument on that motion on April 13, 1987.

1 Where dismissal is based on cons-

ideration of matters outside the plead-

ings, this motion has been considered as

one for summary judgement.

App. C (Cont'd) 8a

Having considered the motion, the subdmis-

sions of the parties, the argument of

Plaintiff and of counsel tor Defendant,

and the applicable law, the Court is of the

opinion that Defendant's motion should be

granted and this action should be dism-

issed.

FACTUAL BACKGROUND

In 1980, after thirty years of marr-

iage, Plaintiff Roland Lee Goad and his

wife, Mary Beth, were divorced. Pursuant

to the divorce decree, Mrs Goad was granted

twelve twenty-sevenths of Mr. Goad's Air

Force retirement pay. Mr Goad refused to

pay Mrs. Goad the required fraction of his

retirement pay, was jailed for contempt,

and was ordered to pay Mrs. Goad $30,099.42

in past-due amounts.

In 1982, Congress passed the Uniformed

Services Former Spouses* Protection Act

(FSPA), 10 U.S.C. $ 1408 (Supp. 1985).

App. C (Con'd) 9a

This act was passed primarily to remedy

the inequitable result of the United States

Supreme Court's decision in McCarty v. lhic-

Carty, 453 U.S. 210 (1981). The Court in

McCarty had held that military retirement

pay was not divisible community property

because to allow division and partial grant

to a spouse contravened Congress's intent-

ion that military retired pay “actually

reach the beneficiary." Id. at 229-30. The

FSPA overrides such an interpretation by

permitting the government to honor state

court orders granting a portion of military

retirement benefits to former spouses of

military men. The FSPA also permits, under

certain circumstances, the withholding of the

court-ordered amount and the direct trans-

mittal to the former spouse. 10 U.S.C. J

1408(d) (Supp. 1985).

In June, 1985, Mrs. Goad applied for

withholding of funds pursuant to the FSPA.

App. C (Cont'd) 10a

The Air Force Accounting and Finance Center

(AFAFC) notified Plaintiff of Mrs. Goad's

application. Plaintiff directed two let-

ters of objection to the AFAFC. Finding no

merit to Plaintiff's objections, the AFAFC

began withholding twelve twenty-sevenths of

Plaintiff's retirement pay for Mrs. Goad's

benefit in September, 1985.

In December, 1985, Plaintiff requested

the AFAFC to reconsider its decision. After

considering Plaintiff's argument, the AFAFC

denied Plaintiff's request. Following that

rejection, Plaintiff brought this pro se

lawsuit.

Defendant United States of America has

filed the motion which is the subject of

this Order, urging dismissal for lack of

subject matter jurisdiction and because

Plaintiff has failed to state a claim upon

which relief can be had.

App. C (Cont'd) lla

SUBJECT MATTER JURISDICTION

Mr. Goad*s action for monetary relief

must be dismissed because this Court lacks

subject matter jurisdiction under the Tucker

Act. The Tucker Act grants concurrent juris-

diction to the district courts and the United

States Claims Court over nontort claims ag-

ainst the United States for damages “not

exceeding $10,000 in amount.” 28 U.S.C. $

1346(a)(2) (1982). Claims in excess of $10,000

are within the exclusive jurisdiction of the

Court of Claims. Graham v. Henegar, 640 F.2d

732, 734-35 (5th Cir. 1981). The amount with-

held from Plaintiff's retirement pay, which

Plaintiff seeks to recover, is now in excess

of $10,000. See Plaintiff's proposed First

Amended Complaint.

Plaintiff asserts that this Court ret-

ains jurisdiction because he is making a

separate claim for each month's pay that has

been transferred to his former wife. These

App. C (Cont'd) 12a

claims, Plaintiff contends, cannot be agg-

regated to deprive the district court of

jurisdiction. Plaintiff cites in support of

his position Baker v. United States, 722 F.2d

517, 518 (9th Cir. 1983); March v. United

States, 506 F.2d 1306, 1309 n.1 (D.C. Cir.

1974); A.C. Davenport & Son v. United States,

538 F.Supp. 730, 732 (N.D. Ill. 1982), aff'd,

703 F.2d 266 (7th Cir. 1983); and Fitzger-

ald v. Staats, 429 F.Supp. 933, 934-35 (D.

D.C. 1977), aff'd, 578 F.2d 435 (D.C. Cir.),

cert. denied, 439 U.S. 1004 (1978). None of

these cases is applicable to the facts of

Plaintiff's suit. Baker and March involved

suits of various plaintiffs, none of whose

individual claims exceeded $10,000. In A.C.

Davenport & Son and Fitzgerald, each Plain-

tiff asserted more than one distinct cause

of action, neither of which exceeded $10,000.

In the instant case, Mr. Goad, the sole Pla-

ntiff in this action, asserts only a single

App. C (Cont'd) 13a

claim, one for recovery of the money with-

held from his retirement pay. He admits that

this amount now exceeds $10,000. Plaintiff

cannot avoid the exclusive jurisdiction of

the Claims Court by characterization of each

month's withholding as a separate cause of

action.

Although Plaintiff seeks monetary dam-

ages within the exclusive jurisdiction of

the Court of Claims, this Court declines to

transfer this action pursuant to 28 U.S.C.

% 1631 because to do so would not be in the

interest of justice. The government cannot

be held liable for making payments under the

FSPA pursuant to a court order that is reg-

ular on its face. United States v. Morton,

467 U.S. 822, 836 (1984); Steel v. United

States, No. 421-85C (C1.Ct. September 12,

1986). Plaintiff has neither alleged nor

shown that the court order his former wife

presented to the Air Force was not regular

App. C (Cont'd) l4a

on its face. Thus, even were the Court to

transfer Plaintiff's action, Plaintiff wo-

uld not be entitled to a monetary recovery

from Defendant. It is, therefore not in the

interest of justice to subject the govern-

ment and the Court of Claims to further ex-

pense and labor in defending against and

hearing this case.

To the extent that Plaintiff seeks dec-

laratory relief that the AFAFC's direct pay-

ments to Mrs. Goad violate statutes and the

Texas and United States Constitutions, this

Court has subject matter jurisdiction over

Plaintiff's claims. 28 U.S.C. f 2201 (Supp.

1985). However, the Court has determined

that each of Plaintiff's claims must be

dismissed. —

PLAINTIFF'S CLAIMS

Plaintiff's complaint purports to ass-

ert the following causes of action:

1. The AFAFC's direct payments to Mary Beth

Goad are in violation of the FSsPA.

App. C (Cont'd) 15a

2. The AFAFC's direct payments to Mary Beth

Goad are prohibited by the Texas

Constitution.

3. The AFAFC's direct payments to Mary Beth

Goad are in violation of the Consumer

Protection Act.

4. The AFAFC's direct payments to Mary Beth

Goad are in violation of 37 USC $ 70l(e).

5. The FSPA is unconstitutional because it

deprives Plaintiff of due process and

equal protection.

6. The Goad's divorce decree was invalidated

by the McCarty decision and cannot be

resuscitated by the FSPA.

7. The FSPA is unconstitutional because it

impermissibly delegates legislative power

to the states.

1. Plaintiff asserts that the AFAFC's

direct payments to Mrs. Goad violate the FSPA

Plaintiff bases this assertion on the remar-

kable premise that the Goad's divorce decree

does not qualify as a “court order” that can

be honored pursuant to the FSPA because it

refers to military “benefits” rather than

military “pay.”

Plaintiff's argument is patently frivol-

ous. Plaintiff originally posed this argument

App. C (Cont'd) l6a

to the AFAFC in his initial objection to dir-

ect payments to Wlirs. Goad. The AFAFC advised

Plaintiff at that time, and this Court reit-

erates, that Texas state law and the federal

courts use the terms “benefits" and “pay”

interchangeably. See Brown v. Robertson, 606

F.Supp. 494, 496-97 (W.D. Tex. 1985); Harrell

v. Harrell, 692 S.W.2d 876 (Tex. 1985). The

use of the term "benefits" in no way invalid-

ates the divorce decree or prohibits the honor

of such a decree by the AFAFC.

2. Plaintiff argues that the withholding

of irs. Goad*s share of Plaintiff's retire-

ment pay violates the Texas Constitution's

prohibition against garnishment of wages. The

Court finds that the case law on this issue

gis clear. Although article XVI, # 28 the

; Texas Constitution and Tex.Civ.Pract. & Rem.

~ 63.094 (Vernon 1986) prohibit garnishment

Jor “current wages," the Texas courts have ex-

)pressly held that military retirement pay is

App. C (Cont'd) 17a

not "current wages" and thus is not exempt

from garnishment under the Texas Constitut-

ion. Wager v. United States, 582 S.wW.2d 896,

897 (Tex.Civ.App. - San Antonio 1979, writ

dism'd); United States v. Wakefield, 572

S.wW.2d 569, 572 (Tex.Civ.App. - Fort Worth

1978, writ dism'd); United States v. Fleming,

565 S.wW.2d 87, 88-89 (Tex.Civ.App. - El Paso

1978, no writ).

Moreover, there is no indication that the

withholding pursuant to the FSPA is in fact

a garnishment, as it is applied to Mr. Goad's

retirement pay. The money being withheld from

Plaintiff's retirement pay is not property of

Mr. Goad upon which Mrs. Goad sought to ex-

ecute judgement, but in fact became Mrs.

Goad's separate property with the entry of

the Goad's divorce decree. The language of

the decree specifically states:

Petitioner (Mrs. Goad) is awarded the

following as Petitioner's sole and sep-

arate property and Respondent (Mr. Goad)

is hereby divested of all right, title

App. C (Cont'd) 18a

and interest in and to such property.

5. All right, title and interest in and

to twelve/twenty-sevenths (12/27) of the

United States Air Force Retirement ben-

efits of ROLAND LEE GOAD AF# - 462368682.

The withholding and transfer to Mrs. Goad of

funds which belong to her cannot properly be

characterized as a garnishment. Plaintiff's

claim of violation of the Texas Constitution

must therefore be dismissed.

3. Similarly, Plaintiff cannot prevail

in his contention that the direct payments to

Mrs. Goad violate the federal Consumer Prot-

ection Act, 15 U.S.C. % 1673 (1982) which

sets ceilings beyond which disposable wages

cannot be garnished. The Consumer Protection

Act deals with garnishment, and the with-

holding of Mrs Goad‘s funds for her own

benefit simply is not garnishment.

Moreover, section 1673(b)(2) of the Con-

sumer Protection Act allows the withholding

of 50 percent and, under certain circumstances,

up to 65 percent of disposable pay when such

App. C (Cont'd) 19a

withholding is pursuant to an “order for sup

port." In Kahn v. Trustees of Columbia Univ-

ersity, 109 A.D.2d 395, 492 N.Y.S.2d 33 (1985),

the court construed the phrase “order for sup-

port" to apply to a court order that a husb- |

and return to his wife her share of a joint

bank account. Assuming, arguendo, that the

AFAFC's action could be considered a garnish-

ment, the divorce court's order that Mrs. Goad —

receive twelve twenty-sevenths of Plaintiff's

retirement benefits should be construed, as

was the order in the Kahn case, to be an |

“order for support." Thus the direct payment

to Mrs. Goad would not be in excess of the

amount of garnishment permitted by the Con- |

sumer Protection Act.

4. Plaintiff's argument that the AFAFC's —

direct payments to Mrs. Goad violate 37 USC

~ 701(c) is equally without merit. That sec-

tion provides: “An enlisted member of the

Army, Navy, Air Force or Marine Corps may

App. C (Cont'd) 20a

not assign his pay, and if he does so, the

assignment is void." This Court first notes

that the direct payments to Mrs. Goad do not

entail an assignment by Mr. Goad, but the en-

forcement of a court order to transfer to Mrs.

Goad her sole and separate property. Further,

to the extent that 37 U.S.C. % 701(c) might

be construed as reflecting a policy against

permitting the division of military retirement

pay as community property, such a construct-

ion was vitiated by the passage of the FSPA,

through which Congress has established a

contrary intention.

5. Mr. Goad maintains that the FSPA is

unconstitutional because it deprives him of

property without due process and fails to

afford him the equal protection of the law.

These claims are frivolous.

Regarding Plaintiff's due process claim,

it is fundamental that, in order to be ent-

itled to procedural due process, Plaintiff

App. C (Cont'd) 2la

must poscess a property interest of which he

is deprived.“ Board of Regents v. Roth, 408

U.S. 564, 569-70 (1972); Findeisen v. North

East Indep. School Dist., 749 F.2d 234, 237

(5th Cir. 1984), cert..denied, 471 U.S. 1125

(1985). As previously stated, a twelve twenty

sevenths portion of Mr. Goad's military ret-

irement pay became Mrs. Goad‘s property with

the entry of the Texas divorce decree. Mr.

Goad is not challenging the Texas statute tha

permitted the allocation of a portion of Mr.

Goad's military retirement benefits to Mrs.

Goad, but is challenging the constitutionalit

of the FSPA, which allows the enforcement of

that allocation. The action of the AFAFC pur-

suant to the FSPA does not deprive Mr. Goad

of property because it merely effects the

transmittal to Mrs. Goad of property allocate

Due process is also required where ther

is a deprivation of liberty. Vitek v. Jones,

445 U.S. 480, 389 (1980). Plaintiff alleges

no such deprivation.

App. C (Cont'd) 22a

and apportioned to her pursuant to state law.

Moreover, contrary to Mr. Goad's claim,

extensive due process was afforded to Mr.

Goad in order to insure that the funds tran-

sferred were in fact property to which Mrs.

Goad was entitled. In order that direct pay-

ments can be made pursuant to a court order,

the FSPA requires that the court order must be

final, be regular on its face, be certified by

a court official, and show that the court had

jurisdiction over the member. 10 U.S.C. 2

1408(c)(4) (Supp. 1985); 32 C.F.R. ~ 63.6 (1986).

Yithin thirty days of receiving a court order

which appears to meet the requirements for dir-

ect payments, the Air Force must give the aff-

ected member written notice of the request and

thirty days to respond and present his position

for consideration. 10 U.S.C. $ 1408(g) (Supp.

1985); 32 C.F.R. ~ 63.6(f) (1986). The resp-

onse, if any is made, is considered by the Air

Force, and the court order is not honored if

App. C (Cont'd) 23a

it is shown to be defective or has been mod-

ified, superseded or set aside. 32 C.F.R. #

63.6(f)(3) (1986). After the Air Force has

made a determination as to whether payments

will be made, the member may request the Air

Force to reconsider the decision and will re-

ceive a response explaining the decision reg-

arding payment. 32 C.F.R. Z 63.6(i) (1986).

It is thus evident that the FSPA affords

a military member abundant due vwrocess before

withholding funds. Mr. Goad's own submissions

to this Court, copies of his correspondence

with the AFAFC, evidence the fact that he took

full advantage of that due process. Mr. Goad's

due process claim is thus totally without

merit and must be dismissed.

Plaintiff"*s constitutional challenge to

the FSPA on the ground of denial of equal pro-

tection of the law is equally without merit.

Mr. Goad cannot show that he is a member of

any “suspect class” affected by the FSPA.

|< ss

en ee ee ee ee oe eee ees Eo a Re ee

Cy Pei ARE BA Pet 0 Cie Mt AE apes ttt DAL wae owe

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App. C (Cont'd) 24a

Thus, for the FSPA to withstand constitutional

muster, it need only be shown that Congress

had a rational basis for enacting the FSPA.

Zobel v. Williams, 457 U.S. 55, 61 (1982).

That rational basis is manifest. The Supreme

Court's decision in McCarty resulted in the

denial to military spouses of the opportunity

to obtain and enforce awards of retirement pay,

while former spouses of other federal employees

enjoyed that opportunity. Recognising the

contributions and sacrifices made by military

spouses during military members‘ careers and

the possibility that in some cases there might

be no other community property available to

former spouses, Congress passed the FSPA in

order to allow military spouses to obtain

their just share of community property upon

dissolution of marriage. Because it ration-

ally furthers a legitimate governmental pur-

pose, the FSPA clearly does not deprive Plain-

tiff of equal protection of the law. His

App. C (Cont'd) 25a

equal protection claim must therefore be

dismissed.

6. Plaintiff further arsues that the

Goads‘ divorce decree was invalidated by the

McCarty decision and that the FSPA canrst be

given retroactive effect in order to - “sus-

citate the divorce decree. This argur nt has

been repeatedly rejected by both stat: and

federal courts. Wilson v. Wilson, 667 *.2d

497, 499 (5th Cir.}s-cert. denied, 45°. U.S.

1107 (1982); Brown v. Robertson,’ 604 *.Supp.

494, 496 (W.D. Tex. 1985); Segrest v. Segrest

649 S.W.2d 610, 613 (Tex. 1983), cert. denied

464 U.S. 894 (1983). The courts have declined

to apply McCarty retroactively to invalidate

divorce decrees which were final before the

McCarty decision. Thus, the Goads* divorce

decree remains in effect, and the FSPA does

not resuscitate it, but merely implements it.

7. Finally, Plaintiff asserts that the

FSPA is unconstitutional because it impermis-

sibly delegates legislative power to the state:

App. C (Cont'd) 26a

The Court notes initially that Plaintiff lacks

standing to assert this claim. Through this

claim Plaintiff appears to be challenging the

constitutionality of the FPSPA in its entirety.

Because McCarty is not retroactive, the div-

orce decree dividing Mr. Goad‘’s retirement pay

has always remained valid. Thus, the FSPA,

insofar as it sanctioned such divisions, had

no effect on Mr. Goad. The FSPA only affects

Mr. Goad insofar as it permits the direct with-

holding of Mrs. Goad*s funds. Mr. Goad has

standing only to assert claims relating to

that withholding. He cannot challenge the Act's

constitutionality insofar as it permits states

to consider military retirement benefits as

divisible community property, because the div-

ision of his retirement benefits by his div-

orce decree always remained valid. Implement-

ation of the FSPA in that respect does not

affect or injure him. Heckler v. Matthews,

465 U.S. 728, 738 (1984).

App. C (Cont'd) 27a

Moreover, Plaintiff's claim has no sub-

Stantial merit. The FSPA delegates no auth-

ority to the state courts to make laws or

rules regarding military pay. The Act merely

allows the state courts to consider military

retirement pay when making property divisions

under their own laws. Congress retains the

power to exclude any and all divisions of

military retirement pay.

ORDER OF DISMISSAL

Having concluded that this Court lacks

Subject matter jurisdiction over Plaintiff's

monetary claim, that transfer of that claim

pursuant to 28 U.S.C. $ 1631 is inappropriate

and that Plaintiff's claims for declaratory

relief lack merit, it is

ORDERED that Defendant's Motion to Dismis

or, in the Alternative, for Summary Judgement

be, and is hereby, GRANTED and that this

action be, and is hereby DISMISSED.

App. C (Cont'd) 28a

SANCTIONS

Incorporating the foregoing as findings

of fact and conclusions of law, the Court finds

that sanctions are appropriate in this case.

Fed. R. Civ. P. 11 provides:

The signature of an attorney or party con-

stitutes a certificate by him that he has

read the pleading, motion, or other paper;

that to the best of his knowledge, inform-

ation, and belief formed after reasonable

inquiry it is well grounded in fact and is

warranted by existing law or a good faith

argument for the extension, modification,

or reversal of existing law, and that it

is not interposed for any improper purpose,

such as to harass or to cause unnecessary

delay or needless increase in the cost of

litigation ... If a pleading, motion, or

other paper is signed in violation of this

rule, the Court, upon motion or upon its

own initiative, shall impose upon the

person who signed it, a represented party,

or both, an appropriate sanction, which

may include an order to pay to the other

party or parties the amount of the reason-

able expenses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney's fee.

The violation of only one clause of Rule 11 is

sufficient to justify the imposition of sanct-

ions. Robinson v. National Cash Register Co.,

808 F.2d 1119, 1130 (5th Cir. 1987). The Court

App. C (Cont'd) 29a

finds that Plaintiff has violated not merely

one, but both clauses.

First, as noted above, Mr. Goad’s claim

are not warranted by the existing Laer ora

good faith argument for the extension of the

law, but are patently frivolous. Were Mr. Go

a novice pro se litigant, his conduct might |

tolerated "as the product of lack of legal

sophistication.” State of Texas v. Gulf Wate:

Benefaction Co.,679 F.2d 85, 87 (5th Cir. 198:

Mr. Goad is, however, a seasoned litigant wi

a demonstrated facility at legal research. A:

such, he “cannot be treated as free to advan

frivolous claims merely because (he) appear(:

without counsel.” Gipson v. Rosenberg, 797 F.:

224, 226 (5th Cir. 1986) (quoting Stelley v.

Commissioner, 761 F.2d 1113, 1116 (5th Cir.)

(per curiam), cert. denied,106 S.Ct.149 (1985)

Second, this suit is clearly brought in

violation of the second clause of Rule 11. Th

Court cannot help but note and deplore the

his

mb: es cn eee

App. C (Cont'd) 30a

meanness of spirit with which this action is

brought. Mr. Goad‘s persistent attempts to

strip Mrs. Goad of the property granted to

her by the divorce decree and to punish the

AFAFC for honoring the decree can only be

characterized as harassment.

When the state court granted Mrs. Goad a

divorce, it made a division of community pro-

perty it deemed “just and right." Tex.Fam.

Code Ann. 3 3.63 (Vernor 1987). Mr. Goad ass-

erts that he does not seek to change one “jot

or dot on the divorce judgement." See Plaint-

iff's Reply to Defendant's Motion to Dismissor,

in the Alternative, for Summary Judgement. Yet,

given the history of Plaintiff's actions, it

strains the credulity of this Court to suggest

that Mr. Goad has gone through the considerable

efforts of this suit with the intent, should he

succeed in preventing direct payments to Mrs.

Goad, of handing over to her twelve twenty-

sevenths of the military pay in compliance with

App. C (Cont'd) 3la

the divorce decree. Rather, it is clear that

Mir. Goad seeks by this action to harass Mrs.

Goad and eventually to deprive her of justice

and to establish for himself a windfall.

Further, Plaintiff's conduct in this Cour

has deprived the Court of time desperately

needed for legitimate complaints. This Court

and the attorneys for the Defendants have exp-

ended long hours and a considerable amount of

money on this case. The taxpayers should not.

have to bear the cost incurred as a result of

Plaintiff's frivolous pleadings and motions in

this Court. Plaintiff's pro se status does not

give him a "license to harass others, clog the

judicial machinery with meritless litigation,

and abuse already overloaded court dockets."

Farguson v. MBank Houston, N.aA., 808 F.2d 358,

359 (5th Cir. 1986).

The Court notes that Plaintiff has not

limited his litigation to the instant suit.

Plaintiff has also filed a federal suit, alle-

ging violation of his civil rights and naming

App. C (Cont'd) 32a

as defendants his former wife and some twenty

judicial officers, jail officials, county com-

missioners, and attorneys who were involved :

in the state court divorce and contempt act-

ions. In addition, Plaintiff has brought a

state court action against Mrs. Goad and the

Commander of the AFAFC in which he has made

allegations similar to those in the. instant

case. He has also counterclaimed in a state

court case filed by Mrs. Goad against him and

joined the Commander of the AFAFC as third

party defendant in that action.? The persist-

ence and pervasiveness of Mr. Goad's litigat-

ion campaign is further evidence that his

intent is to harass.

3 The AFAFC removed both state court

actions to federal court where they were con-

solidated in another judge's docket as Civil

Action No. H-86-3548 and have been dismissed.

App. C (Cont'd) 33a

Defendants have submitted statements de-

tailing the hours involved and the costs inc-

urred defending this action. Defendants seek

sanctions in the amount of $4,748.40 to comp-

ensate them for time and money expended. This

Court finds Defendants” request reasonable.

It is therefofe

ORDERED that sanctions in the amount of

$4,748.40 be, and are hereby, imposed upon

Plaintiff. As an additional nonmonetary san-

ction, it is further

ORDFRED that Plaintiff Roland Lee Goad

shall not file with this Court any further

causes of action until all monetary sanctions

imposed have been paid in full and satisfac-

tory proof thereof has bee furnished. See

Farguson v. MBank Houston, N.A., 808 F.2d 358

(5th Cir. 1986).

SIGNED at Houston, Texas on this _5 _

day of June, 1987.

signed

DAVID HITTNER

United States District Judge

App. D 34a

Plaintiff's Original Petition filed in the

District Court on September 8, 1986 which

formed the basis for the District Court's

Opinion and order (661 F.Supp. 1073) (App.

C ’ 7a-33a) .

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LFE GOAD

Plaintiff ; CIVIL ACTION

vs NO. H-86-3432

}

UNITED STATES OF AMERICA

Defendant )

PLAINTIFF'S ORIGINAL PETITION

These are claims for amounts of Plain-

tiff’'s salary that have been unlawfully with-

held from his pay by the Commander, Air Force

Accounting and Finance Center pursuant to the

Uniformed Services Former Spouses’ Protection

Act (10 U.S.C. 1408).

Jurisdiction of this action is conferred

on this Court by Title 28, United States Code,

Section 1346(a)(2)(The Tucker Act). The statute

App. D (Cont'd) 35a

gives district courts concurrent jurisdiction

with the United States Claims Court over act-

ions to recover fees, salary or compensation

for official services of officers or employees

of the United States > Each claim is for less

than the $10,000.00 jurisdictional ceiling for

such claims filed in this Court.

III

These claims arose each month beginning

September 3, 1985 as is hereinafter more fully

set forth.

CLAIMS

Claim No. Amount of Claim Date Claim Arose

1 $704.01 September 3, 1985

2 704.01 October 1, 1985

3 704.01 November 1, 1985

4 704.01 December 2, 1985

5 706.90 January 2, 1986

6 706.90 February 1, 1986

706.90 March 1, 1986

Ee ree eres eS ate Bans mere eer el fee era es

App. D (Cont'd) 36a

8 $686.90 April 1, 1986

9 686.90 May 1, 1986

10 686.90 June 2, 1986

ll 686.90 July 1, 1986

12 686.90 August 1, 1986

13 . 686.90 September 2, 1986

TOTAL $9,058.14

FACTS

1. Plaintiff is an enlisted member of the

Regular Air Force in retired status entitled

to earn non-disability retired pay for his mil-

itary service. Plaintiff was divorced pursuant

to a decree signed by a visiting judge of the

272nd District Court of Brazos County, Texas

on September 19, 1980. No appeal was taken. In

the division of community property, Plaintiff's

former spouse was awarded a fraction of Plain-

tiff's "Air Force retirement benefits".

2. On June 26, 1981 the United States Sup-

reme Court held that military non-disability

retired pay was not community property subject

App. D (Cont'd) 37a

to division at divorce. iMcCarty v. iicCarty,

453 U.S. 210 (1981).

3. The “Uniformed Services Former Spouses'

Protection Act" was subsequently enacted, eff-

ective February 1, 1983, purporting to retro-

actively annul the McCarty opinion. Title 10,

U.S.C., Section 1408(a)(2)(C), as amended by

Public Law 98-525, effective October 19, 1984

(98 Stat. 2547, 2548) and 32 C.F.R.Part 63.3(e)

(July l, 1985) provide in relevant part:

"In the case of a division of property,

the court order must specify that the

payment is to be made from the member's

disposable retired pay."

= is Coat, tte. Sen bbe. we ee hh ti eee A De +

4, On June 24, 1985 Plaintiff's former

spouse requested the Commander of the Air Force

Accounting and Finance Center to honor the 1980

divorce decree as a “court order" and make pay-

ments to her of a portion of Plaintiff's pay.

Her request was approved on June 28, 1985 and

payments began on September 3, 1985 and have

continued each month.

tal Se ee ee eee ee

App. D (Cont'd) 38a

5. On July 5, 1985 and again on December

23, 1985 the Plaintiff made formal written ob-

jections challenging the Air Force's authority

to honor the decree of divorce as a "court

order". Plaintiff's objections were summarily

dismissed by the Air Force.

BASIS FOR CLAIMS

1. The term "Air Force retirement benefits"

as used inthe decree of divorce renders subject

decree ineffective and insufficient to satisfy

the mandatory requirements of a “court order"

as defined in the controlling law. Pursuant to

the express terms of the "Uniformed Services

Former Spouses’ Protection Act" the Air Force

is without authority to honor the divorce dec-

ree as a “court order". There exists no discr-

etionary power for the Air Force to honor a

divorce decree not in conformance with the Act.

VYhatever meaning or importance is attached to

the term “Air Force retirement benefits", it

Cannot be claimed to invalidate the positive

App. D (Cont'd) 39a

provisions of the Act authorizing the Air Force

to only honor those orders that treat "retired

pay” as community property.

2. Execution agains* Plaintiff's pay oper-

ates as a prohibited garnishment action that

contravenes express provisions of federal law

and deprives the Plaintiff of both Federal and

State exemptions under garnishment statutes

and therefore violates the proscription in 15

U.S.C. 1673(c) that no court may make, execute,

or enforce any order or process in violation of

that section.

3. Fxecution or garnishment of Plaintiff's

pay conflicts with the self-executing provisions

of 37 U.S.C. 70l1(c) that an enlisted member of

the Air Force may not assign his pay, and if

he does so, the assignment is void.

4. The “Uniformed Services Former Spouses'

Protection Act", as implemented by the Depart-

ment of Defense,has unconstitutionally deprived

the Plaintiff of his property without due pro-

cess of law and also deprived Plaintiff of his

App. D (Cont'd) 40a

right to equal protection of the law. The Act

has effectively denied Plaintiff of any forum

for challenging the validity of the Air Force's

action in diverting a portion of Plaintiff's

pay to his former spouse, and is therefore

constitutionally infirm as violative of the

Fifth and Fourteenth Amendments to the Const-

itution of the United States.

5. The “Uniformed Services Former Spouses’

Protection Act” is unconstitutional to the ex-

tent that it delegates legislative power to

state courts for the purpose of determining

entitlement to federal compensation and also

violates the Constitution and laws of the United

by authorizing the Air Force to disburse Plain-

tiff's military pay to an individual not in the

armed forces, thus diverting the federal funds

to an object for which funds were not appropr-

lated.

6. The “Uniformed Services Former Spouses’

Protection Act” may not apply retroactively to

annul a decision of the United States Supreme

App. D (Cont'd) 4la

Court. Congress’ declaration that the act app-

lies to events or court decisions which occur-

red prior to the effective date of the statute

represents a legislative attempt to retroacti-

vely apply new statutory language and to thereby

annul a prior decision of the Supreme Court.

This was an assumption, by Congress, of the

role of a court of last resort in contravention

of the principles of separation of powers.

Congress cannot override a decision of the

Supreme Court by declaring that the new stat-

ute applies retroactively to cases decided be-

fore its effective date. Indeed it is difficult

to see how the Congress could more palpably

invade the exclusive province of the Supreme

Court and effectually usurp its functions,

than to pass this Act which operates to set

aside or annul a judgement of the Supreme

Court, in its nature final, and which would

otherwise be conclusive of the questions now

before this Court. The decision in McCarty v.

NcCarty, 453 U.S. 210 (1981) applied settled

App. D (Cont'd) 42a

precedents that go back to 1881 and beyond and

should, therefore, be given full retroactive

effect to judgements rendered before June 26,1981.

VII

WHEREFORE, Plaintiff prays that judgement

be entered against the Defendant, United States

of America, and in favor of the Plaintiff, in

the amount of $9,058.14, together with interest

thereon as provided by law, and costs and dis-

bursements of this proceeding.

Respectfully submitted.

Signed: September 8, 1986. (signed)

ROLAND LEE GOAD, Plaintiff

310 Sara Lane

Huntsville, Texas

(409) 291-2430

App. E 43a

Petitioner's motion to consolidate actions

removed from state court filed on Oct. 10, 1986.

IN THE UNITED STATES DISTRICT: COURT

FOR TH= SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD

Plaintiff

UNITED STATES OF AMERICA NO. H-86-3432

}

{

CIVIL ACTION

Defendant }

MARY BETH GOAD

Plaintiff/Cross Def.

vs CIVIL ACTION

ROLAND LEE GOAD ~86-354

Defendant/Cross NO. H-86-35%6

Plaintiff

and

COMMANDER, UNITED STATES

AIR FORCE ACCOUNTING AND

FINANCE CENTER

Garnishee & Cross Def.

PLAINTIFF'S MOTION TO CONSOLIDATE ACTIONS

Plaintiff, ROLAND LEE GOAD, respectfully

moves the Court for an order pursuant to Rule

—_

App. E (Cont'd) Kha

42(a) of the Federal Rules of Civil Procedure

directing a joint hearing or trial of all iss-

ues in the separate pending actions that are

identified in the caption of this motion, and

in support thereof shows the Court:

On October 19, 1981, MARY BETH GOAD brought

an action in the 272nd District Court of Brazos

County, Cause 23,296, styled MARY BETH GOAD vs.

ROLAND LEE GOAD, purporting to be a bill of

review. Her action was never brought to trial.

III

On June 24, 1985, MARY BETH GOAD filed

DD Form 2293 “Request for Former Spouse Pay-

ments From Retired Pay" with the Commander, Air

‘Force Accounting and Finance Center garnishing

Plaintiff's pay. Her request was approved.

On January 29, 1986, Plaintiff filed coun-

terclaims in Cause 23,296 (the bill of review)

seeking an order quashing, dissolving and re-

Calling the writ of garnishment. Plaintiff's

counterclaims have never come to trial or hearing.

On June 5, 1986 the Plaintiff brought an

original action in the 272nd District Court of

Brazos County, Texas, Cause 28,082, styled ROL-

AND LEE GOAD, Plaintiff, vs. COMMANDER, AIR FORCE

ACCOUNTING AND FINANCE CENTER, Garnishee and

Defendant, and MARY BETH GOAD, Co-Defendant,

seeking an order dissolving the writ of garn-

ishment. Plaintiff's petition has never come

to trial or hearing in the 272nd District

Court.

On September 15, 1986, the Commander, Air

Force Accounting and Finance Center, by and

through Henry K. Oncken, United States Attorney

for the southern District of Texas, filed with

the Clerk of this Court, a petition for removal

of the above-described pending State actions.

That petition is now before this Court.

<=,

VII

Rule 42(a) of the Federal Rules of Civil

Procedure provides in relevant part that when

actions involving a common question of law or

fact are pending before the court, it may order

a joint hearing or trial of any or all the

matters in issue in the actions.

WHEREFORE, Plaintiff moves the Court for

an order pursuant to Local Rule 14 =. consol-

idating the pending actions described in the

caption to this motion.

Attachment: acl P

Proposed order sidan ia (signed) aris

RULAND whist GUA, rialNn=

Signed: tiff (pro se)

October 10, 1986 310 Sara Lane

Huntsville, Texas 77340

(409) 291-2430

App. F 42a

Excerpt from a pleading filed in the District

Court on December 1, 1986 by the Defendant

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LTE GOAD

Plaintiff CIVIL ACTION

Vv. NO. H-86-3432

)

UNITED STAT™S OF AMERICA )

Defendant

MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF DEFENDANT'S MOTION TO DISMISS OR,

IN THE ALTERNATIVE, FOR SUMMARY JUDG! MENT

*t & & &

page 15

Assuming, arguendo, that the Court does

find jurisdiction exists to consider Plain-

tiff's claims, then he should be required to

join Mary Beth Goad in this action because she

is an indispensable party under Fed.R.Civ.P.

19(a) because she unquestionably has an interest

in the subject matter of this action, i.e. a

portion of community property awarded to her

by a Texas state court. * * * * #

App. G 48a

Excerpt from a pleading filed in the District

Court on December 9, 1986 by the Plaintiff

UNIT=D STATES DISTRICT COURT

SOUTH RN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD )

Vv. ) CIVIL ACTION

UNITED STATES OF AMERICA ) NO. H-86-3432

PLAINTIFF'S REPLY TO DEFENDANT'S MOTION TO

DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY

JUDGENENT

* + & tH

page 5

Lis Defendant seeks to convert Plaintiff's

Tucker Act claims into a domestic relations

dispute and thus either:(a.)deprive this court

of jurisdiction, or (b) inject extraneous and

irrelevant matters and issues into this case.

12. Plaintiff and his former spouse are

already involved in three (3) civil actions

pending in this District Court:(a) Civil Action

H-86-3433 pending before Judge Gabrielle K.

MeDonald. A case brought pursuant to the Civil

Rights Act, seeking damages for deprivation of

App. G (Cont'd) 49a

right under color of law. (42 U.S.C. 1983).

(b) Cause 23,296, filed October 19, 1981 and

counterclaims therein filed on January 29,1986,

removed to this Court on October 16, 1986. (c)

Cause 28,082, filed June 5, 1986, removed to

this court on October 16, 1986. These two

causes are pending under Civil Action H-86-

3548. A motion is pending in this action for

the consolidation of the two removed actions

with this case.

13. Either a consolidation of the actions

or a joint hearing on Plaintiff*s pending

motions for summary judgement in those pending

actions will adequately accomodate Mary Beth

Goad's interests.

14, Plaintiff, in this action, seeks no

relief against his former spouse. His Tucker

Act claims are only related to the other |

actions in a peripheral way.

«tet te &

App. H. 50a

Plaintiff's motion to transfer filed in the

district court on April 15, 1987.

UNITED STATES DISTRICT COURT

JOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD

CIVIL ACTION

UNITZD STATES OF AMSRICA 9

PLAINTIFF'S MOTION TO TRANSFER CASE TO THE

UNITED STATES CLAIMS COURT TO CURE WANT OF

JURISDICTION

TO TH®= HONORABLE JUDGE:

Plaintiff, ROLAND LE® GOAD, respectfully

moves the Court, pursuant to Title 28, United

States Code, Section 1631, for an order tran-

sferring this case to the United states Claims

Court.

A memorandum supporting this motion is

being filed this date.

If approved, request an order be entered

substantially in the form attached hereto.

Signed: April 15, 1987. Respectfully submitted.

+t + HH Ht F

App. | 5la

Motion for summary judgement filed on Dec. l,

1986 in H-86-3548 (the companion case mentioned

at p. 32a and 661 F.Supp. at 1081 n.3).

IN THe UNITED STATES DISTRICT COURT OF

THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARY BeTH GOAD

Plaintiff/Cross Def.

‘a ALOMTON

ROLAND LEE GOAD Tari aa oe

T) fo (* p ‘

Defendant/Cross Plntf. NO. H-86-3548

and

COMMANDER, UNITED STATES

AIR FORCE ACCOUNTING

AND FINANCE CENTER

Garnishee & Cross Def.

Pet et ee ee ee et ee ee et et et ot oe

CROSS-PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT

Cross-Plaintiff, pursuant to Rule 56 of the

Federal Rules of Civil Procedure, moves the

Court to enter summary judgement for the Cross-

Plaintiff on the grounds that there is no gen-

uine issue as to any material fact, and that

the Cross-Plaintiff is entitled to judgement

as a matter of law.

* & & 2 +

PRAYER ’

App. I (Cont'd) 52a

Cross-Plaintiff moves the Court for the

following specific relief:

l. Enter an order granting MARY BETH

GOAD's motion for non-suit filed on January

9, 1985, in Cause 23,296, in the 272nd Dist-

rict Court of Brazos County.

2. Unter an order dissolving the injun-

ction that appears of record in Volume 42,

Pages 364A and 364B of the minutes of the 272nd

District Court of Brazos County, Texas, in

Cause 23,296;—and order that the $500.00 bond

approved in subject injunction be paid to

ROLAND LEE GOAD.

3. Enter an order quashing, dissolving,

and recalling the writ of garnishment (DD Form

2293) served on the Commander, Air Force Accou-

nting and Finance Center by MARY BETH GOAD on

June 24, 1985.

4. In the exercise of the Court's authority

pursuant to Title 28, United States Code, Sec-

tion 2201, and to remove the uncertainty and to

App. I (Cont'd) 53a

declare the rights of the parties, Cross-

Plaintiff moves the Court to enter a declar-

atory judgement to the effect that:

a. The term “Air Force retirement ben-

efits" as used in the Decree of Divorce ren-

ders subject decree ineffective and insuffic-

ient to satisfy the mandatory requirements of

a “court order" as that term is defined in

the relevant statutes.

b. The Cross-Defendant, MARY BLTH GOAD,

having the right to pursue one of several in-

consistent remedies and having chosen a bill

of review and an injunction, is now barred from

pursuing any inconsistent remedy to reach Cross-

Plaintiff's estate.

5. Enter an order granting Cross-Plaintiff

his costs in this Court, and in the 272nd Dist-

rict Court prior to removal, including what

would be reasonable attorney fees and such

other and further relief as, to the Court,

seems fair and ‘ust.

Signed: December 1, 1986

ee ee

App. J : 54a

Stipulation filed by Petitioner on April 15,

1987 in the companion case.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARY BETH GOAD

Plaintiff/Cross Def.

CIVIL ACTION

ROLAND LEE GOAD

Defendant/Cross. Plntf. NO. 86-3548

and

COMMANDER, UNIT=SD STATES

AIR FORCE ACCOUNTING

AND FINANCE CENTER

Garnishee & Cross Def.

CROSS-PLAINTIFF'S STIPULATION PERTAINING

TO FEDERAL DEFENDANT'S LIABILITY

TO THE HONORABLE JUDGE:

Cross-Plaintiff, ROLAND LEE GOAD, stip-

ulates (for the purpose of this action only)

that he voluntarily relinquishes any claim for

costs or other monetary relief against the Com-

mander, Air Force Accounting and Finance Center.

The Commander of the Air Force Accounting

and Finance Center was made a defendant in this

action solely for the purpose of insuring that

App. J (Cont'd) 55a

he would be bound to honor any order dissolving

the writ of garnishment that is the subject of

Cross-Plaintiff's claim.

If the Federal Defendant should agree to

honor an order dissolving the writ of garnish-

ment, Cross-Plaintiff would interpose no objec-

tion to the dismissal of the Federal Defendant

from this action without prejudice.

Respectfully submitted.

Signed: April

15, 1987

RCLAND LEE GOAD, Cross-

Plaintiff (pro se)

310 Sara Lane

Huntsville, Texas 77340

(409) 291-2430

° LORIE

App. K 56a

In its opinion (661 F.Supp. 1081 n.3) the dis-

trict court refers to a companion case removed

from state court and dismissed. This is the

memorandum and order of dismissal in that case.

UNITe£D STATZ5 DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARY BETH GOAD

Plaintiff/Cross Def.

i CIVIL ACTION

ROLAND LEE GOAD

Defendant/Cross Pl. NO. H-86-3548

and

COMMANDER, UNITED STATES

AIR FORCE ACCOUNTING

AND FINANCE CENTER,

Garnishee & Cross Deft.

‘

}

’

}

MEMORANDUM AND ORDER OF DISMISSAL

Pending before the Court is Defendant

Commander, United States Air Force Accounting

and Finance Center's (the Center) motion to

dismiss under Rule 12(b)(1).

Roland Goad's complaint against the Center

and Defendant Mary Beth Goad seeks a declaratory

judgement that the Center was without authority

to dissolve the “writ of garnishment" and dir-

ectly pay to Defendant Mary Beth Goad retire-

ment benefits.

App. X (Cont'd) 57a

It is well established law that the Fed-

eral Government cannot be sued without a wai-

ver of sovereign immunity. See Wright and Miller,

Federal Practice and Procedure at 43655. The

Deckaratory Judgement Act does not act as such

a waiver. Tne statute at issue, 10 U.S.C.

£1408(f)(1), also does not provide a waiver.

Apparently realizing that there was no

waiver of sovereign immunity,Mr. Goad has filed

a Stipulation of dismissal of the federal def-

endant. At the pretrial conference Mr. Goad

Stated that this dismissal was unconditional.

With the Center out of the case, the Court

is left with Roland and Mary Beth Goad. There is

no federal subject matter jurisdiction arising

from the claims and counterclaims of these two

parties. Again, the Declaratory Judgement Act

does not provide an independent basis for fed-

eral question jurisdiction. See 28 U.S.C. £2201(a).

The Court also notes that Mr. Goad has failed to

App. K (Cont'd) 58a

state a claim upon which relief can be granted

against Mary Beth Goad, and all of Mary Beth

Goad's claims appear to be moot. For the

foregoing reasons, the Court

ORD! RS Defendant Commander, United States

Air Force Accounting and Finance Center

DISMISSED with prejudice. The Court further

ORDERS the claims between Roland and Mary

Beth Goad DISMISSED without prejudice under

Federal Rule of Civil Procedure 12(h)(3).

DONE in Houston, Texas, this _l6th day of

April, 1987.

(signed)

James DeAnda

UNITED STATED DISTRICT JUDGE

App. L 59a

Petitioner's memorandum opposing the govern-

ment’s request for costs and fees, filed in

the district court on May 4, 1987.

UNIT? D STATES DISTRICT COURT

SOUTHERN DISTRICT OF T XA

HOUSTON DIVISION

ROLAND Li = GOAD

CIVIL ACTION

NO. H-86-3432

UNITED STATES OF AMERICA }

PLAINTIFF’S RRSPONSE TO DEFENDANT'S MEMORANDUM

IN SUPPORT OF AWARD OF COSTS AND ATTORNEY'S FEES

TO THE HONORABLE JUDGE:

1. The federal defendant is not entitled

to an award of attorney's fees in this civil

action. Title 28, U.S. Code, Section 2412(a)

provides in part:

Except as otherwise specifically provided by

statute, a judgement for costs, as enumerated

in section 1920 of this title, but not incl-

uding the fees and expenses of attorneys, may

be awarded to the prevailing party in any

Civil action brought by or against the United

States or any agency or any official of the

United States acting in his or her official

Capacity in any court having jurisdiction of

such action. (Emphasis supplied)

2. This statute precludes the award of

attorney's fees to a prevailing party in an

action against the United States or any agency

App. L (Cont'd) 60a

or official thereof, even though the prevailing

party may recover his costs as provided in Sec-

tion 1920, of Title 28 U.S. Code. For instance:

",..- it seems basic that if a party is immune

from an award of attorney's fees as such, that

immunity is not altered by taxing fees as part

of costs. If the award is void in one form, it

is void in the other.”

Jordon v. Gilligan, 500 F.2d 701, 705(CA 6 1974)

cert.den. 421 U.S. 991 (1975).

3. It is true that federal courts, in the

exercise of their equitable powers, may award

attorney's fees when the interests of justice so

require. The Supreme Court in Alyeska Pipeline

Co. v. Wilderness Society, 421 U.S. 240, 258-9

(1975),noted!that attorney's fees may be awarded

by a federal court where “the losing party has

‘acted in bad faith, vexatiously, wantonly, or

for oppressive reasons.'” But that exception

does not apply here. Plaintiff has engaged in

absolutely no vexatious behavior. There has been

no need for discovery be either side, there has

been no failure or delay in making timely res-

ponses to the pleadings and motions filed by the

App. L (Cont'd) 6la

defendant. Plaintiff has sought no continuances

or other delay to any proceeding. The only delay

has been occasioned by the desire of defendant's

cocounsel to attend the hearing in April. The

federal defendant has not been subjected to any

kind of harrassment or vexation from this Plain-

“tiff that would justify the imposition of any

sanctions.

4, Costs that merely are incidental to the

trialor are incurred in preparation for it will

not be considered “necessarily” incurred “for

use in the case“for purposes of Section1920 and

will not be allowed under local rule, custom and

usage, or the court’s inherent power. As a res-

ult such items as transportation or a computer

search are not subject to recovery as costs.

Also travel of attormeys are disallowed unless

the attorney is to appear as a witness. See:

City Bank of Honolulu v. Rivera Davila,438 F.2d

1367, 1371 (CA 1 1971); Richerson v, Jones, 506

F.Supp. 1259, 1267 (E.D. Pa. 1981);.10 Wright,

Miller & Kane, Federal Practice & Procedure,

Section 2677 at 370-1 (2nd. Ed. 1983).

App. L (Cont'd) 62a

5. Major Barton seeks costs for:

Computer research $730.00

Travel costs 578.90

Attorney's fees 2,556.95

But none of these items are taxable as costs

pursuant to 28 U.S.C. 1920 or 2412(a).

6. Mister Jenkins wants an imposition of

costs for:

Attorney fees $872.55

Copying 10.00

If the copies were necessary in the case, this

cost is taxable. Such costs are taxable pursuant

to 28 U.S.C. 1920(4) only to the extent that

such copying was necessary for use in the case.

Making an extra copy for cocounsel would likely

not fall within the provisions of the statute.

Mister Jenkins’ attorney fees are not taxable

(28 U.S.C. 2412(a)), and if they were, several

of his entries probably would not belong in the

costs of this case:

App. L (Cont'd) 63a

01/09/87 Conversation with Mr. Rudy Cano

01/07/87 Conversation with Kis. Sinderson

03/11/87 Review of opposition to non-party

motion

04/10/87 Library research of article unrelated

to this case

7. When Plaintiff brought his original com-

plaint in this Court on September 8, 1986, he

sought $9,058.14 for thirteen (13) claims that

had accrued at that time. This was an amount

within this Court's Tucker Act jurisdiction

whether or not the claims were to be aggregated.

Only if the claims that have accrued since the

filing of this action are to be aggregated into

one “claim” has this Court lost jurisdiction of

this case. If these separate claims are not to

be aggregated, this Court should dispose of this

case on the merits. If all the claims are to be

aggregated as the federal defendant as-erts they

should, jurisdiction of this case lies exclusi- |

vely in the United States Claims Court and it

should be transferred. In either instance, the

taxation of costs should abide the determination

on the merits. ...

TOO)

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