# Petition for Writ of Certiorari — Goad v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 906

## Text

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1987

ROLAND LEE GOAD,
Petitioner
v.

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 \

i

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).

ii

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

iv
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

Appendix

Appr ndix

Appendix

App* ndix

i?)

H

h4

Vv

'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)

vi

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.

2

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:

3

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

(C) in the case of a division of property,
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.

5
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):

(c) No court of the United States or any
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

6

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

8

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).

(c) An enlisted member of the Army or Air
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

9

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

10
(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

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11
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

12
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).

13
order" must specify that the payment is to

be made from the member's disposable retired

"2

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).

14
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,

:
-
é
y

gt Mey

15
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-

16

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

17

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

18
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 :

19
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

20
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

21

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).

22

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

iv
»)

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-

2k

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

25
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."

26
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

27
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.

28
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<> <>

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

Wu

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.

| 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.
IV
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
7

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
V
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.

Vi

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

or

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

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

}
{
CIVIL ACTION
'
4
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

I
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:
II
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.
IV
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

App. © (Cont'd) 45a
counterclaims have never come to trial or hearing.
V
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.
VI
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

a

of the above-described pending State actions.

That petition is now before this Court.

UQ

_
<=,

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
Vs
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.

I

A memorandum supporting this motion is

being filed this date.
II

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.

Vs

‘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.

VS
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.

ee

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.

I
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.
II
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.

‘
}
"
!
}
"
"
!
"
d
’
!
?
}

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
VS

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1267%3A1. Public record. Not legal advice.