Petition for Writ of Certiorari — Nordstrom v. Washington

39g = L 84 Supreme Court, U.Se

NO: _FILED

MAY 17 1990

F. SPANIOL, JR.

IN THE SUPREME COURT | JOSEPH CLL

OF THE

UNITED STATES

October Term, 1989

DAVID A. NORDSTROM, et al

Petitioners

WH

THE STATE OF WASHINGTON, et al

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GARY H. BENJAMIN

Attorney at Law

BENJAMIN & PERREY, P.S.

N. 2702 Argonne, Suite E

Spokane, Wa 99212

(509) 922-5345

NO:

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1989

DAVID A. NORDSTROM, et al

Petitioners

VS.

THE STATE OF WASHINGTON, et al

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GARY H. BENJAMIN

Attorney at Law

RENJAMIN & PERREY, P.S.

N. 2702 Argonne, Suite E

Spokane, Wa 99212

(509) 922-5345

(a)

QUESTION PRESENTED FOR REVIEW

Did the United States Court of

Appeals for the Ninth Circuit commit

error by ruling that the Petitioners'

complaint raised federal issues’ that

were only defenses to a= state court

judgment, and therefore the federal

courts lacked subject matter

jurisdiction?

(b)

PARTIES TO THE PROCEEDINGS

Plaintiffs named in this case were:

David A. Nordstrom, Theodore H. Dahn,

Robert L. Brown, Richard Wiedenhoft,

James P. Kittleson, Joseph J. Ray, Harry

Brookman, Malcom D. Rixon, Gaspar V.

Policani (upon his demise, substituted

with William A. Smith), and George

Hibbs.

Defendants named in this case were:

The State of Washington and , the

Honorable Vernon R. Pearson in his

capacity as Chief Justice of the Supreme

Court of Washington; U. S. Department of

Defense, the Honorable Frank C.

Carlucci, Secretary; U.S. Department of

the Air Force, the Honorable Richard C.

Aldridge Jr., Secretary; U.S. Department

of the Army, the Honorable John 0. Marsh

Jr., Secretary, and the U. S. Department

of the Navy, the Honorable William L.

Bell, Secretary.

///

77

(c)

TABLE OF CONTENTS

Question Presented for review ....

Parties to the Proceedings . ...: «

Table of Contents/Authorities ... ii

Opinions Delivered Below .......

Grounds Upon which Jurisdiction

ae Beene 4s 6 6a awe eee es

Constitutional Provisions and

Peetweese ERPesvee « « «© «+ © © se

SUBGGmeRE. OF the Case . «+ «2 © 8 © 8

a ae ee ee ee ee ee ee ee ee ee a ee

CORE Ameeer « & bs ae a! $8 Se ea

Appendix

A. District Court Order of

Dismissal and Notice of Hearing

B. Transcript of Proceedings

C. Ninth Circuit Memorandum

Decision

D. Order Affirming Dismissal

E. 10U0.S.C. 1408

F. 10U.8.C. 101(27)

29 U.S.C. 1002(32)

29 U.S.C. 1003

36

G. Wash.Rev.Code Ann. 6.15.020

Wash.Rev.Code Ann. 6.16.030

Wash.Rev.Code Ann. 26.16.140

H. Constitutional Provisions

TABLE OF AUTHORITIES

CASES

UNITED STATES SUPREME COURT

Bell v. United States, 366 U.S.393

(1961) o ° @ ® ° e @ © e e o o °

Cary v. Curtis, 44 U.S.236 (1845). .

Caterpillar v. Williams, 482 U.S.

386 (1987). 7 . & se es e ° o -_ @ o

Conley v. Gibson, 355 U.S. 41

(1957) oe oe o es o e o @ oe o os es @

Costello v. United States, 442

U.S. 929 (1979) . . « - %14,17,31,

Florida Lime & Avocado Growers, Inc.

v. Paul, 373 U.S. 132 (1963) ..

Free v. Bland, 369 U.S. 663 (1962) .

Kahn v. Anderson, 255 U.S. 1 (1920).

Knickerbocker Ice Co. v. Stewart,

253 U.S. 149 (1920) . . « « 4%, Al,

Leonard v. United States,

ae Soe, Se Cees 6 oie ei ele «

14

28

32

35

33

18

13

16

23

16

Lorillard v. Pons, 434 U.S. 575

(1978) . 28£ @ S528 ,8% 82°24 #8 «

Mansell v. Mansell, 490 U.S.

104 L.Ed.2d 675 (1989)...

McCarty v. McCarty, 453 U.S. 210

CSPeS) oc of 6, ass) eo G33, 16

. 28

- 23

Si, 34

McCune v. Esig, 199 U.S. 382 (1905). 28

Reconstruction Finance Corporation

v. Beaver County, 328 U.S. 204

(1946) e@ ® e a e e es e e e

Rice v. Santa Fe Elevator Corp.

Joe Vale! BAO LAPeTT © 2 ©:

Scheuer v. Rhodes, 416 U.S. 232

(1974) e 3 e e ® o e ® e eo

United States v. Larionoff,

SSE. Deda BOS. CESTT) «2: ©. '2

United States v. Mills, 197 U.S

223 (1904) eo eo oS @ e a aa 6

United States v. Morton,

San Bene &. t4ee) « «6 « 8

United States v. Standard Oil,

oe Uae wee LEeers. «. 6 ¢ »

United States v. Tarble,

GP Usits SEK LEOEES*s. «0 6

United States v. Tyler,

SUS Ute 298 CEGBE) «. © «

Wissner v. Wissner, 338 U.S.

a Cee ak A ee Sd oe tk cee

13,18

OTHER FEDERAL CASES

Andrews v. United States

175 Ct.Cl« 301 CE9GG) « «© « © « « 16

Berkey v. United States, 176 Ct.Cl. l,

361 F.2d 983 (1966) .....e-s 3i1

Calhoun v. United States, 475

F.Supp. 1 (S.D. Cal. 1977). . 24, 36

Chambers v. Russel, 192 F.Supp.

425 €8.D. Cal. 1961) . « ee 26 « VY

Fern v. Turman, 736 F.2d 1367

(9th Git « 1984) es @ e se s e e 7 +. y

Goodley v. United States, 441 F.2d

Li73 (@GcGhe AMF) « © «© 0 o 684,91

Hasbrouk v. Texaco, Inc.,

663 F.2d 930 (9th Cir. 1981)... 25

Hooper v. Hartman, 163 F. Supp. 437

(1958), aff'd 9th Cir. 1958,

274 B26 OOO an 0 & o> 35,37,3)

Hostinsky v. United States,

292 F.2d 508 (Ct.Cl. 1961). . 14,17

Janakes v. United States Postal

Service, 768 F.2d 1091 (9th Cir.

1985) 6 6 e © es @ _ J @ @ a o oe 8 24

Lemly v. United States, 75 F.Supp.

248, 109 Ct.Cl. 760 (1948) ... 18

Lockhart v., Mittlemann, 123 F.2¢4

703 (2nd Cir. 1941) o s s o e se . 16

Puglisi v. United States, 235 Ce.Ci.

86, 564 F.2d 403 (1977) . «. « « « 16

Sherman v. Yakaki, 549 F.2d 1287

(9th Cir. 1977) ° ° ° ° ° . ° 24,36

Watson v. Watson, 424 F, Supp. 866

[mame Baume. 1976) 24 sc ae 17,31

Williams v. State of Washington

894 F.2d 391 (9th Cir. 1987). .. 27

WASHINGTON STATE CASES

Marriage of Parks, 48 Wash. App.

166, 737 P.2d 1316 [ote se se. 8

Moore v. Moore, 9 Wash.App. 951,

wee Weee Boer ChOre? «+ « te we 22

CONSTITUTIONAL PROVISIONS

Vabe Gpeet.; Art. Ig Sec. 6 . . pasim

Wome COenet.; Art. Ij Secs 9 . «. . « Be

Pome Gemeese;s Art. FIT; oe. 2° 6k ss

waer Genes sc Ares TI « 6 oe «oe ee

U.S. Const., Thirteenth Amend. . 10,28

STATUTES

Peewee FORO e tae GS See ae ee

SE eG a etl dy od. Bt pasim

ee BebeGe BONCT7) © ook Sk 3, 29,30,35

ae W860, Ch. 67 CUENS) 6k se ks 25

10 BsbsGs BOGS 6s 88 es

10. 01B6C.. 277k. 2 « © ¥ O° %

10 U.S.C. 3504(a)

10 U.S.C. JRF «© © © « ¥ ©

10.0.8.C. Sees 6.8 8 es

10 U.S.C. @SiZ « «s ewe 8

26 U.S.C 61(a)11

y ee Se eee a ae

28 U.8.6.. 328) « & Bese s

28 U.S.C. 1943Ce)(3).C4S) « «

28: U.8.G. T3552 «+ e404 058-4

20 Uid.C.. 29Se eae 4 ee

29: G.B.C. IGCBCR4)..6 + < @ 8

29 U.S.C. 2008 2.46 ees 4

37 U.8.C.. SOLCE) «2 4% = %

WASHINGTON STATE STATUTES

Wash.Rev.Code Ann. 6.15.020

Wash.Rev.Code Ann. 6.16.030

Wash.Rev.Code Ann. 26.16.140

OTHER AUTHORITY

37 Comp. Gen. 207 . « © « «

41 Comp. Gen. 715, . « « « «

viii

pasim

7 $8

eS

. wa

‘c/a

owe

oe |

° 1

5,30

(d)

OPINIONS DELIVERED IN THE COURTS BELOW

Notice of Hearing and Order of

Dismissal with Prejudice, filed October

20, 1988 (Appendix A); Transcript of

Proceedings of October 5, 1988 (Appendix

B); Memorandum decision of the United

States Court of ‘Appeals for the Ninth

Circuit, filed February 16, 1990

(Appendix C).

None of the decisions of the courts

below are officially published.

(e)

GROUNDS UPON WHICH JURISDICTION

IS INVOKED

The judgment of the United States

Court of Appeals was entered on February

16, 1990. This Court has jurisdiction

pursuant to 28 U.S.C. 1254(1).

This Petition is docketed within

ninety days of the entry of the order in

the Ninth Circuit Court of Appeals.

(f)

CONSTITUTLONAL PROVISIONS AND

STATUTES INVOLVED

This case involves’ a challenge to

the Constitutionality of the Uniformed

Services Former Spouse Protection Act,

Pub. L. 97-252, codified as 10 U.S.C.

1408, which is set forth in full in

Appendix E. Alternatively, this case

involves the interpretation of that Act,

and in particular, sub-sections (c)(1)

and (c)(2), which are set out below.

Sub-section (c)(1) provides:

Subject to the limitations of

this section, a court may treat

disposable retired or retainer

pay payable to a member... either

as property solely of the member

or as property of the member and

his spouse in accordance with the

law of the jurisdiction of such

court. (Emphasis added).

Sub-section (c)(2) provides:

Notwithstanding any other

provision of law, this’ section

does not create any right, title,

or interest Mhich can be sold,

assigned, transfered, or

otherwise disposed of (including

by inheretance) by a

former spouse.

spouse or

Several other federal statutes are

involved to the extent

peripherally support

contentions. These are

that they

Petitioners'

set forth in

full in the .uppendix. These statutes

are 10 U.S.C. 101( 27),

29 U.S.C.

1002(32), and 29 U.S.C. 1003 (Appendix

a State statutes

conflict are set out in

in apparent

Appendix G.

Constitutional provisions are set ferth

in Appendix H.

///

(g)

STATEMENT OF THE CASE

Petitioners, retired members of the

uniformed military services, brought an

action in the United States District

Court’ for the Eastern District of

Washington alleging that the courts of

the State of Washington under color of a

federal statute but in contravention of

federal statutory and case law, and in

violation of Washington State statutory

law, had discriminatorily and unlawfully

diverted their current and future

income. Petitioners alleged that the

very law utilized by the courts of the

State of Washington, specifically 10

U.S.C. 1408, is an unconstitutional act,

prohibited by the United States

Constitution, Article 1, Section 8,

clauses 12, 13 and 14. Knickerbocker

sialinass

Ice Co. Vv. Stewrat, 253 U.S. 149

(1920). Petitioners also alleged due

process and equal protection arguments,

Petitioners sought no monetary damages.

Petitioners also sought, by way of

a declaratory judgment, a judicial

declaration defining the legal character

of military retired/retainer pay and

injunctive relief. Jurisdiction was

asserted pursuant to the Constitution of

the United States, Article III, Sec. 2,

Ciaese 33 and 286°U5S.C. 13313 28 U.8.C.

1355; 28 U.S.C. 1343 (3)(4)3; 28 U.S.C.

1356, and 5 U.S.C. 702.

Petitioners brought before the

District Court a motion to certify their

complaint as a class action pursuant to

Fed.R.Civ.P. 23(b)(2), and for temporary

injunctive relief. Respondents, state

and federal defendants below, responded

by filing motions to dismiss the action.

A hearing was held on the motions to

dismiss on October 5, 1988. The

District Court Judge used a= prior

unpublished opinion in which he _ had

ruled that the Uniform Services

Spouse's Protection Act, 10 U.S.C.,

Section 1408, overruled McCarty v.

McCarty, 453 U.S. 210 (1981), thus

allowing the courts of the State of

Washington to treat military retired

retainer pay as deferred compensation.

Therefore, he séendiiel that the

Petitioners failed to state a claim.

He then decided that the court lacked

subject matter jurisdiction. The

complaint was dismissed pursuant to

Fed.R.Civ.P. 12(b)(6), and Fed.R.Civ.P.

12(b)(1).

A timely appeal was taken to the

United States Court of Appeals for the

Ninth Circuit. The Court, in a

Memorandum Opinion filed February 16,

1990 upholding the District Court's

reasoning, said that the complaint was

properly dismissed for lack of subject

matter jurisdiction under Fed.R.Civ.P.

12(b)(1). It affirmed the dismissal

and did not reach the Fed.R.Civ.P.

12(b)(6) issue. A timely Petition for

Writ of Certiorari was filed in this

Court.

(h)

ARGUMENT

This case arises from the

Petitioners" complaint as to the nature

of the legal definition of

retired/retainer pay as received by

members of the United States Armed

Forces placed on the roll of the

retired reserves. This action is

predicated on the denial of the

Petitioners' due process rights in the

definition of their retired/retainer

pay by the state courts, and _ the

corresponding treatment afforded the

class of persons known as “military

retirees", as opposed to all _ other

classes of persons in the State of

Washington. The complaint alleges,

inter alia, that the courts of the

State of Washington ignore Title 10 and

Title 26 of the U.S.C., their own

statutes, Wash.Rev.Code Ann. 26.16.140,

(Appendix ¢); and Wash.Rev.Code

6.16.030, now recodified as

Wash.Rev.Code Ann. 6.15.020, (Appendix

+ and established and extensively

cited federal case law, by defining

military retired/retainer pay as a

"pension", as "deferred" compensation.

See for example Marriage of Parks, 48

Wash.App. 166, 737 P.2d 1316 (1987).

This erroneous classification then

"permits" the courts of the State of

Washington, albeit in violation of

R.C.W. 6.16.030 (Appendix C) and 29

U.S.C. 1003, and 29 U.S.C. 1002

(32)(Appendix B), to divide this

purported "property" in dissolution of

marriage actions. The complaint seeks

only declaratory and injunctive relief.

Specifically the complaint seeks

(1) declaratory relief as to the legal

character of military retired/retainer

pay, either as "wages" (current

compensation), or a "pension" (deferred

compensation); (2) declaratory relief

that the courts of the State of

Washington are unconstitutionally

applying the state laws to the

Petitioners and the class of persons

they seek to represent; and (3) an

injunction precluding the federal

agencies from honoring such decrees.

The complaint does not allege that

the Washington decrees are invalid.

The complaint does not allege that the

State of Washington does not have the

jurisdiction, right or province to

regulate dissolutions of marriage for

all citizens of that state. The

complaint does allege that the State of

Washington is discriminating against

military retirees by this

classification, and thereby placing

them in involuntary servitude for the

rest of their lifetime, in repugnance

to the Thirteenth Amendment of the

Constitution of the United States.

Petitioners argued at the trial

court that the Uniformed Services

Former Spouse Protection Act, 10 U.S.C.

1408 (hereinafter FSPA or the Act), was

an unconstitutional delegation of

exclusive Congressional authority. (TP)

(Appendix F).

(A) TITLE 10 U.S.C. 1408

INASMUCH AS IT DELEGATES TO THE

VARIOUS STATES MATTERS EFFECTING

THE COMPENSATION OF FEDEPAL MILITARY

MEMBERS, IS UNCONSTITUTIONAL, IN

VIOLATION OF THE UNITED STATES

CONSTITUTION, ARTICLE 1, SECTION 8.

The Former Spouses' Protection Act

is unconstitutional as a delegation of

exclusive Congressional authority.

Clearly, the raising and maintaining of

the military is exclusively a function

reserved by the United States

Constitution to Congress. By virtue of

the Constitutional reservation of

authority to Congress, likewise,

Congress may not delegate its

responsibility. A similar question was

decided in Knickerbocker Ice Company v.

= —

Stewart, 253 U.S. 149 (1920). Congress

is exclusively authorized by the

-ll-

Constitution to fix and address remedies

for seaman injured at sea. Congress

enacted legislation which provided an

election of remedies for the seaman

under the various laws of the various

states. The Court held that the

delegation of power to the states which

would control or affect the

Congressional schema was an

unconstitutional delegation of authority

by Congress.

The perpetuation of the

mischaracterization of retired pay as

"pension" or "deferred compensation" as

is done by the courts of the State of

Washington, is radically inconsistent

with federal law respecting the pay.

Congress alone has the power and

authority to regulate pay for military

service and to determine what

constitutes military service for which

~12-

compensation is required or payable.

United States Constitution, Article Be

section 8, Clauses 12, 13, 14, and 16;

United States v, Standard Oil, 332 U.S.

301 (1947) [holding personnel affairs/

pay subject exclusively to U.S.

regulations]; Free v. Bland 369 U.S. 663

(1962) [holding that federal law and

congressional enactments control the

determination of the character of

retired pay as present earnings];

McCarty v. McCarty, 453 U.S. 210 at 232

(1981).

State courts may not redefine

military retired pay. Wissner v.

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

Appellant's are under contract’ for

services and are, therefore, employees

of the United States Armed Forces,

continuing to serve the United States

Armed Forces as officers and

non-commissioned officers on retired

reserve status. Their right to receive

pay or retired pay is established by

federal statute. Bell v. United States,

366 U.S. 393 (1961) [holding that a

soldier's entitlement to pay is

dependent upon a federal statutory

right]; Goodley v. United States, 441

P.2¢@ 2175: (€e.Cis: 3071); -Goeekeise. 9.

United States, 442 U.S. 929 (1979)

——_—

[stating "the contract seems to mean

that Stevens will receive the pay

authorized by statute from time to time

as he performs his service"], and is a

yearly appropriation by Congress’ in

consideration for his continuing service

and observance of restrictions [United

States ve Larionoff, 431 U.S. 864

(1977)]. [Forfeiture of pay upon

employment subject to "supervision and

control" of foreign gov't; Hostinsky v.

United States, 292 F.2d 508 (Ct.Cl.

1961): [prohibition against dual officer

status/pay; Hooper Vv. Hartman, 163

F.Supp. 437, aff'd (9th Cir., 1958) 274

F.2d 469 (Rear Admiral tried by court

martial, when found guilty, forfeited

right to earn retired pay)].

Other restrictions include: (a)

reductions in pay if certain employment

accepted (10 U.S.C. 5532); (b)

forfeiture of pay for certain crimes (10

U.S.C. 8312); (c) forfeiture if employed

by foreign government (U.S. Const. Art.

I, sec. 9 Cl. 8); (d) forfeiture of pay

for employment with defense work for

private firms within three years of

retirement (37 ¥.$-C. 801)(1); (Ce)

recall involuntarily (10 U.S.C. 3504(a);

(f) forfeiture if foreign citizenship is

acquired (37 Comp.Gen. 207; 41 Comp.Gen.

715); (€g) subject to UCMJ.

Congress has determined that while

the military member is on an indefinite

service contract with this nation, he

will continue in the capacity of his

"retiring" rank unless’ he violates the

terms and conditions of his employment

contract with the United States Armed

Forces. Congress has expressly retained

the inactive duty member and makes

monthly (periodic) payments to him in

consideration for his continuing (but

reduced) service to the United States

Armed Forces. United States v. Morton,

112 U.S. 1 £=(1884); United States v.

maiie. 197 U.3. 223 ¢€iaeert “nee. ve

Anderson, 255 U.S. 1 (1920); Leonard v.

United States, 279 U.S. 40 (1928);

Puglisi v. United States, 215 Ct.Cl. 86,

564 F.2d 403, cert. den. 435 U.S. 968

(1978); Lockhart v. Mittlemann, 123 F.2d

703 (2nd Cir. 1941); Andrews v. United

States, 175 Ct.Cl. 561 (1966); Chambers

v. Russel, 192 F.Supp. 425 (N.D. Cal.

1961); Hooper v. Hartman, supra; United

States v. Tyler, 105 U.S. 244 (1882);

Costello v. United States, supra; Watson

v. Watson, 424 F.Supp. 866 (E.D. N.Car.

1976); Hostinsky Vv. United States,

supra. For over one hundred years, the

federal courts have recognized and held

that in the absence of a retainer paid

to the military member on inactive duty

status, the United States would be

without right to subject the member to

(1) continuing obligations and

restrictions, or (2) recall to active

duty, United States v. Tyler, supra.

Thus, the sustaining of retainer

pay as a "personal entitiement" and the

"current earnings" characterization is

crucial to federal goals and objectives,

United States v. Tyler, supra; Costello

Vv. United States, supra; 10 U.S.C.

section 2771; McCarty ve McCarty,

supra. Consequently, state courts are

preempted from recharacterizing the pay

as deferred compensation, Florida Lime &

Avocado Growers, Inc., v. Paul, 373 U.S.

132 (1963); Rice v. Santa Fe Elevator

Corp., 331] U.S. 218 (1947).

Military retired pay is paid to the

military member as a "personal

entitlement" for personal services

rendered to the United States Armed

Forces. Wissner v. Wissner, supra; 10

U.S.C. 2771; Lemly v. United States, 75

F.Supp. 248, 109 Ct.Cl. 760 (1948);

McCarty v. McCarty, supra.

There is no property right in

military retired/retainer pay not yet

earned. 10 U.S.C. 1408 is an

unconstitutuional delegation of

authority by Congress to the. states.

-18-

Even so, it states:

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

(c)(2).

Indeed, the enabling provision of that

statute is extremely limited in scope.

It states:

Subject to the limitations of

this section, a court may treat

disposable retired or retainer

pay payable to a member ...

either as the property of the

member or as property of the

member and his spouse in

accordance with the law of the

jurisdiction of such court. 10

U.S.C 1408 (c) (1) (Emphasis

Added).

That section only purports to allow the

state courts to consider disposable

income, not the gross income. It

further defines it as pay, and only

allows the state courts to consider that

pay payable. It further only allows the

-19-

state courts to consider that pay

payable as property of the member or his

spouse. It further only allows’ the

state courts to so consider’ such

disposable pay payable to a member

and/or his spouse in accordance with the

laws of the state. Disposable is

defined as the gross income, less taxes

required to be withheld, less FICA, less

union dues, if any, by Washington law,

and is further defined within 10 U.S.C.

Pay is defined as wages, remuneration

for services, Payable is defined as

that which is due and owing, which can

be demanded. Spouse is defined as one's

marital partner, not one's former

marital partner. The laws the State of

Washington prohibit the division of

one's future wages. R.C.W. 26.16.140.

Even though the courts may consider and

divide all "property", whether community

~-20-

or separate, and "while under certain

circumstances [a court may] award part

or all of one spouse's separate property

to the other, the situations which

warrant such action are exceptional".

Moore v. Moore, 9 Wash. App. 951, 515

P.2d 1309 (1973). Unearned future

income is not, however, property. 10

U.S.C. 1408 by its own terms, purports

to permit the courts’ to consider that

pay payable at the time of dissolution,

and nothing more. 10 U.S.C. 1408 was

enacted to overcome the federal

preemption, albeit, unconstitutional,

and nothing more, and by its own terms

made no redefinition, nor created any

rights that did not already exist.

State courts will be preempted upon

a showing of (1) an expression of

Congressional purpose or intent to

preempt the field, (2) pervasiveness of

-21-

the schema, (3) nature of the field as

federal in character, and (4) the

inherent need for nationwide uniformity.

Congress has preempted the field and has

established a pervasive schema by

exercising its authority pursuant to the

United States Constitution, Article I,

section 8, cla. 32, 33, °° 314, end 363

Article VI, clause 2. Accordingly, the

field is exclusively federal in

character, United States v. Tarble, 80

U.S. 397 (1872).

It is imperative to maintaining the

stability of the armed forces that the

consideration a member receives for his

service is uniform and aeea not vary

from state to state.

Given similar circumstances in the

case of military pay, Appellant's urge

this Court to find that FSPA is likewise

unconstitutional. The FSPA specifically

delegates to each state the authority to

"treat" the pay "in accordance with the

laws of the State". This is precisely

the issue laid to rest by the Supreme

Court in Knickerbocker, supra. Where

the delegation abdicates to the states a

power/authority granted exclusively by

the Constitution to Congress, the Act is

an impermissible delegation of

non-delegable power.

This Court addressed only the issue

of disability compensation recieved in

lieu of military retired/retainer pay in

the case of Mansell v. Mansell, 490

U.S. » 104 L.Ed.2d 675, 109 S.Ct.

2023. This Court was not asked to

address the Constitutionality of the Act

itself, and properly did not do _ so.

That time has come, the time to

determine the Constitutionality of the

Act.

=

(B) THE BASIS OF THE COURT'S

DISMISSAL FOR LACK OF SUBJECT

MATTER JURISDICTION UNDER

FED.R.CIV.P. 12(b)(1) IS

ERRONEOUS AND MUST BE REVERSED.

The standard for review of

dismissal under Fed.R.Civ.P. 12(b)(1) is

the clearly erroneous standard. Calhoun

Vv. United States, 475 F.Supp.l, 3

(S.D.Cal, 1977); Sherman v. Yakaki, 549

F.2d 1287 (9th Cir. 1977); Scheuer v.

Rhodes, 416 U.S. 232, 237 (1974). The

trial court below, cited no basis for

its dismissal, but referred only to a

previous decision of his in an

unpublished case (TP>. In that

unpublished case, the trial court below

used the authority of Janakes v. United

States Postal Service, 768 F.2d 1091

(9th Cir. 1985), and erred in reading

the language of the case. The question

is not whether the Plaintiffs could use

10 U.S.C. 1408 as a basis for coercive

-24- |

action, but whether Defendants could do

SO. At pg. 1093, the Court states in

Janakes that:

[4] If, however, the declaratory

judgment defendant could have

brought a coercive action... then

we have jurisdiction notwith-

standing the declaratory judgment

plaintiff's assertion of a federal

defense... (emphasis added).

Surely, the declaratory judgment

defendant, the United States Government,

can use 10 U.S.C. 1408, or any other

federal law, to enforce its rights. The

trial court's previous’ reliance on the

mandate of Hasbrouck v. Texaco, Inc.,

663 F.2d 930, 933 (9th Cir. 1981) was

faulty. Although the trial court below

correctly read Hasbrouck as denying the

District Courts within the Ninth Circuit

the authority to overrule the decisions

of the Ninth Circuit, it erroneously

used Fern v. Turman, 736 F.2d 1367 (9th

Cir. 1984) as its basis. This case is

clearly distinguishable from Fern.

Firstly, the actions in Fern were

removal actions taken from in process,

active state courts’ actions. Bt .46

clear that the federal courts will not

take an action from the state courts

without allowing the action to be

decided first by the states. The case

at bar is not ae removal action. The

case at bar is not currently pending in

any other court. The court in Fern

Stated at pg. 1369, that:

[In Fern, sltate court

proceedings are ongoing. Until

these proceedings are completed,

and it has been determined that

appellants must relinquish a

portion of their retired pay, a

decision by this court on _ the

claims against the federal

defendants would be premature...

Appellants’ claims against the

federal defendants are therefore

unfit for judicial resolution

because they are contingent both

upon a decision of the _ state

court not yet final and in

administrative action not yet

taken.

This case cures all of the reasons

given in Fern. There are no pending

state court actions. Those actions are

final. There are garnishments' being

taken. Administrative action has been

taken. The case is ripe for review.

There is current, immediate and

devastating impact upon the Plaintiffs.

The Ninth Circuit Court belatedly

published its earlier unpublished

opinion in that case, Williams v. State

of Washington, 894 F.2d 391 (9th Cir.

1987), on January 16, 1990, and used

that decision published after argument

to the court as the basis for affirmance

of the dismissal in this case. Neither

the trial court nor _ the Ninth Circuit

Court addressed or acknowledged

Petitioner's argument that the federal

courts have jurisdiction to reverse any

judgment regarding the award of federal

property in a manner that is

inconsistent with federal law respecting

that property. McCune v. Essig, 199

U.S. 382 (1905).

Federal statutes are to be

construed to achieve uniform results

throughout the nation Reconstruction

Finance Corporation v. Beaver County,

328 U.8. 204, 209 -€3966). Congress

legislates with full awareness’ of the

cannons of statutory construction.

Lorilierd.v. Pens, *36 U.d.' 375, S80

(1978); Cary v. Curtis, 44 U.S. 236, 240

(1845). The case at bar is ripe for

review. The issue is an important one.

The state courts have absolutely no

proper authority or right to garnish or

"divide" Appellant's current pay for the

benefit of another not their spouse, as

a property right, as to do so would be

repugnant to the Thirteenth Amendment of

= 286

the Constitution of the United States,

by placing Appellant's in ae_e state of

involuntary servitude. Appellant's

retired/retainer pay as a member of the

retired reserve, is unassailable asa

property right other than community

property, as it only becomes "property"

as it is earned. 10 U.8.C. 101(27)

defines pay for all of Title 10 U.S.C.

That section lists as "pay", inter-alia,

basic pay, hazardous pay, retainer pay,

retired pay and incentive pay. There

are no differentiations. Each is a

wage, earned day to day, and only

payable after they are earned.

The courts are empowered with

authority to issue declaratory relief,

to give a definition tto allow for

uniform results. The uniformity sought

is a declaration as to the character of

military retired/retainer pay, either as

-29-

pay, as Plaintiffs contend, or as a

pension, as the State of Washington

contends, to permit all states then to

apply that same characterization under

the law of the jurisdiction. The courts

are empowered to make a ruling on the

constitutionality of a federal statute.

Petitioners stated a federal

question, specifically, the definition

of federal payments made to federal

officers pursuant to federal statutes.

The federal courts have jurisdiction

over all civil actions arising under the

Constitution, laws or treaties of the

United States. 28 U.S.C. 1331. Title

10 of the United States Code states that

"pay" includes basic pay, special pay,

retainer pay, incentive pay, retired pay

and equivalent pay. 10 U.S.C. 101(27).

The United States Internal Revenue Code

defines pay as "wages", and

specifically retired or retainer pay at

26 U.S.C. 61(€a)(11). The FSPA, 10

U.8.C. 1408, does not redefine that

pay. It states:

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(c)(2).

The question yet remains: is that pay

current compensation, as this Court and

the lower federal courts have

consistently held in the _ past, United

States v. Tyler, supra; Costello _ ov.

United States, supra; Berkey v. United

States, Bye, eeeeee 8, 361 F.2d 983

(1966); Hooper v. Hartman, supra; Watson

v. Watson, supra; Goodley v. United

States, supra; or is it deferred

compensation? In the McCarty decision

which precipitated the FSPA, this Court

expressly declined to rule whether a

state could characterize retired pay as

deferred compensation. Id. at 223. Once

an area of state law has been completely

pre-empted, any claim purportedly based

on that pre-empted state law is

considered, from its inception, a

federal clain, and therefore arises

under federal law. Caterpillar Vv.

Williams, 482 U.S. 386 (1987). The

federal statutes pled by Petitioners and

cited above completely pre-empt’ state

interpretation.

Petitioners alleged that the FSPA,

permits the state courts to do one and

only one thing, specifically:

Subject to the limitations of

this section, a court may treat

disposable retired or retainer

pay payable to a member... either

as property solely of the member

or as property of the member and

his spouse in accordance with the

law of the jurisdiction of such

court. IO UeSd.6s 30008 CECT).

[Emphasis Added]

~32-

State courts thus may apply state law to

the "thing" (retired/retainer pay), as

defined by federal law, not redefine the

"thing" in contravention of federal

law. Plaintiffs alleged that 10 U.S.C.

1408 allowed the states no other

latitudes.

Neither the Ninth Circuit nor this

Court has revised or ampiified the

holding of the Ninth Circuit in Costello

supra, that “retirement pay does not

differ from active duty pay in its

character as pay for continuing military

service". Id at.. 427. That very

definition is as alleged by Petitioners,

and is ignored by the courts of the

State of Washington.

As this Court so correctly stated,

"[the] statutory language is straight-

forward: ‘A member of the Army [or Air

Force, or Marines, or Navy, under

~~

corresponding statutes] retired under

this chapter is entitled to retired

pay...' 10 U.§.. 2a McCarty,

Supra, at 223. This Court went on to

say that:

At the least, then, the

possibility that Congress

intended military retired pay to

be in part current compensation

for those risks and restrictions

Suggests that states must tread

with caution in this area, lest

they disrupt the federal scheme,

Citations omitted. 305 ‘Ot Bese

f.m. 16.

The FSPA (10 U.S.C. 1408(c)(1))

states that the state courts may

consider retired/retainer pay payable

either as property of the member or

member and his/her spouse, in accordance

with the laws of that state. it does not

say that the state courts shall divide

military pensions, regardless of when

payable, in spite of the laws of the

state.

nthe

The pre-emptive force of Title 10

and Title 26 of the United States Code

are so powerful as to displace entirely

any state action redefining the nature

or character of a federally originated,

defined and administered subject as the

United Stated Armed Forces or the pay,

entitlement or other regulation

thereof. Congress alone has the power

to provide and maintain the armed forces

and to make rules and regulations

therefore. U.S. Constitution, Article

— 8, cls. 12, 13 and 14. Congress

has defined military retired/retainer

pay. 10 U.S.C. 101(27). The FSPA did

not redefine military retired/retainer

pay. The State of Washington has done

so.

The standards applicable to a

Fed.R.Civ.P. 12(b)(6) action, as stated

in Conley v. Gibson, 355 U.S. 41 (1957)

Sen

are equally applicable to Fed.R.Civ.P.

12(b)(1) motions Calhoun v. U.S., supra;

Sherman v. Yakaki, supra. Petitioners

have clearly stated a federal question,

suitable only to the interpretation by

the federal courts. The court below has

jurisdiction, and the dismissal under

Fed.R.Civ.P. 12(b)(1) must be reversed.

CONCLUSION

'

Since the Petitioners by asserting

certain facts that if proved at trial

would grant them the relief sought in

the Complaint, and because the United

States District Court for the Eastern

District of Washington did have subject

matter jurisdiction over the case, the

decision of that Court must be reversed

and remanded for trial on the merits.

Petitioners respectfully pray that

—36-

a Writ of Certiorari issue to the United

States Court of Appeals’ for the Ninth

Circuit, remanding this case for trial

on the merits,

Respectfully submitted this 15th

day of May, 1990.

BENJAMIN & PERREY, P.S.

ao

‘

i Toa

ARY H. BENJAMIN 7.

Attorney for Petitioners

=_\=