# Petition for Writ of Certiorari — Nordstrom v. Washington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 1005

## Text

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

=_\=

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1579%3A1. Public record. Not legal advice.