Petition for Writ of Certiorari — Goad v. United States, 113 S. Ct. 814 (1992) (No. 92-727)

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FILED.

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92-727

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ROLAND L. GOAD,

Petitioner

Vv.

THE UNITED STATES,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROLAND L. GOAD, Petitioner

310 Sara Lane

Huntsville, Texas 77340

(409) 291-2430

(pro se)

26 October 1992

QUESTION PRESENTED

Does Section 1408(f)(1) of Title 10,

United States Code [The Uniformed Services

Former Spouses' Protection Act (USFSPA) ]

effect a repeal, by implication, of the

Tucker Act [28 U.S.C. § 1491(a)(1)] so as

to withdraw this military pay claim from

cognizance in the United States Claims

Court?

TABLE OF CONTENTS

Subject

Question presented

This Table

Citation to Opinions Below

Jurisdiction in this Court

Jurisdiction in Claims Court

Jurisdiction in Appeals Court

Statutes Involved

Statement of the Case: Facts

Proceedings in Claims Court

Proceedings in Appeals Court

How the Claims Court Erred

How the Federal Circuit Erred

Why A Claims Court?

Why A "Tucker Act"?

Reason for Granting the Writ

Conclusion

Appendix

A Federal Circuit Opinion, Aug.

1992, affirming Goad v. U.S.,

24 C1.Ct. 777 (1990)

Page

2 ai

iii

B Opinion, Goad v. U.S., 24 C1.Ct. Sa

777 (1991)

C Federal Circuit Order Denying 42a

Petition for Rehearing, Oct. 2, 1992

D Original Complaint, 90-72C, filed 44a

January 22, 1990.

E Excerpts of Brief in Claims Court 58a

showing questions presented

F Excerpts of Brief in Federal 60a

Circuit showing issues presented

Cases Page

Alabama Hosp. Ass'n v. United States, 22

656 F.2d 606 (Ct.Cl. 1981), cert. denied,

456 U.S. 943 (1982)

Allen v. United States, 91 F.Supp. 24

933 (Ct.Cl. 1950)

American Well Works v. Layne & Bowler 14

Ce. ean U.Ss 257 (1916)

Anderson v. Hayes, 153 N.E. 28 33

(N.Y. 1926)

Backus v. United States, 59 F.2d 242 23

(Ct.Cl. 1932), cert. denied, 288 U.S.

610 (1933)

Bank of Nova Scotia v. United States 35

487 U.S. 250 (1988)

Block v. Neal, 460 U.S. 289 (1983) 33

Butler v. Pennsylvania, 10 How. 402 35

(1850)

Casman v. United States, 181 F.Supp. 24

404 (Ct.Cl. 1958)

Chew Heong v. United States, 112 24

U.S. 536 (1884)

Christianson v. Colt Indus. Operating 17

Corp., 486 U.S. 800 (1988)

Colorado River Conser. Dist. v. 19

United States, 424 U.S. 800 (1976)

Commonwealth v. Caton, 8 Va. 5 (1782) 31

Cort v. Ash, 422 U.S. 66 (1975) 34

Denny v. Mattoon, 84 Mass. 361 (1861) 27

Emerson v. Hall, 13 Pet. 409 (1839) 25

Franchise Tax Board v. Const. Vac. 14

Trust, 463 U.S. 1 (1983)

Foster's Case, 77 Eng.Rep. 1222 (1615) 20

Frost v. Wenie, 157 U.S. 46 (1894) 22

Gentry v. United States, 546 F.2d 22

343 (Ct.Cl. 1976)

Henderson, In re, 11 Wall. 652 (1871) 22

Hoke v. Henderson, 15 N.C. 1 (1833) 27

King v. Cornell, 106 U.S. 395 (1882) 22

McCarty v. McCarty, 453 U.S. 210 7-9

(1981)

McCool v. Smith, 1 Black 459 (1862) 22

Montana-Dakota Utilities Co. v. N.W. 15

Public Serv. Co., 341 U.S. 246 (1951)

National Leased Housing Ass'n v. 20

United States, 22 C1.Ct. 649 (1991)

Osborn v. Nicholson, 13 Wall. 654 27

(1872)

Petri v. F. E. Creelman Lumber Co., 21

199 U.S. 487 (1905)

Red Rock v. Henry, 106 U.S. 596 (1883) 22

Rosecrans v. United States, 165 U.S. 19

257 (1897)

Rutherford v. Green, 2 Wheat. 196 (1817)26

Simanonok v. Simanonok, 918 F.2d 2, 13, 17

947 (CAFC 1990)

Simon v. United States, 113 Ct.Cl. 15

182 (1949)

South Carolina v. Stoll, 17 Wall. 24

425 (1873)

Taylor v. Anderson, 234 U.S. 74 (1914) 14

The Fair v. Kohler Die & Specialty 15

Co., 228 U.S. 22 {1913)

Tipperary Refining Co. v. United States,16

11 €1.Ct. 572, aff'd, 833 F.2d 301

(CAFC 1987), cert. denied, 486 U.S. 1006

(1988)

Todd v. United States, Ct.Cl. R. 1 28

(1856)

Twenty Per Cent Cases, 20 Wall. 179 26

(1874)

United States v. Borcherling, 185

U.S. 223 (1902)

United States v. Emery, Bird, is,

Thayer Realty Co., 237 U.S. 28 (1915)

United States v. Gillis, 95 U.S. 407

(1877)

United States v. Hansen, 772 F.2d 940

(D.cC.Cir. 1985), cert. denied, 475

U.S. 1045 (1986)

United States v. Healey, 160 U.S. 136

(1895)

United States v. Jackson, 302 U.S. 628

(1938)

United States v. Mitchell, 463 16,

U.S. 206 (1983)

United States v. Taylor, F.Cas.No.

16,563 (E.D.Pa. 1840), aff'd, 3 How

197 (1845)

United States v. Tynen, 11 Wall. 88

(1871)

Vogue v. United States, 844 F.2d 776

(CAFC 1988), cert. denied, 488 U.S. 941

(1989)

Wilkinson v. Leland, 2 Pet. 628 (1829)

Willy v. Coastal Corp., 112 S.Ct.

1076 (1992)

Wilmot v. Mudge, 103 U.S. 217 (1880)

Wynehamer v. The People, 13 N.Y.

378 (1856)

vii

Statutes Page

U.S.CONST., AMND. I oo

10 U.S.C. § 1408(£)(1) passim

10 U.S.C. § 1463(a)(1) 4, 12

28 U.S.C. § 1254(1) 3, 5

28 U.S.C. § 1295(a)(3) 3625

28 U.S.C. 1491(a)(1) (Tucker Act) passim

Other Texts

73 Am.Jur.2d Statutes § 401 (1974) 18

W. Cowen, P. Nichols, Jr., M. 28-31

Bennett, THE UNITED STATES COURT OF

CLAIMS, A HISTORY, PART II, ORIGIN —

DEVELOPMENT -— JURISDICTION, 1855-

1978, reprinted in 216 Ct.Cl. 1-183

(1978)

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

ROLAND LEE GOAD, Petitioner,

versus

THE UNITED STATES, Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Roland Lee Goad, the plaintiff and appel-

lant in the proceedings below, petitions

for a writ of certiorari to review the

judgment of the United States Court of

Appeals for the Federal Circuit in this

1/ The names of all parties appear in

the caption.

case. [Pet.App. la]. 2

CITATION TO OPINIONS BELOW

This military pay case was brought in the

United States Claims Court on January 22,

1990 [Pet.App. 44a]. The case was dismissed

because "the United States has not waived

its immunity to permit a claim challenging

the USFSPA, as would be required by the

Tucker Act." Goad v. United States, 24 Cl.

Ct. 777, 785 (1991) [Pet.App. 34a].

On appeal, the Federal Circuit held that

"the FSPA retracts any waiver of sovereign

immunity which might be found elsewhere in

the United States Code." [Pet.App. 4a]

(citing Simanonok v. Simanonok, 918 F.2d

947, 951 (CAFC 1990)) "Mr. Goad has no

Claim cognizable before the Claims Court."

[Pet.App. 4a].

2 / Refers to the appendix to this petit-

ion.

JURISDICTION IN THIS COURT

On August 12, 1992 the United States Court

of Appeals for the Federal Circuit affirmed

the Claims Court judgment [Pet.App. la].

Petition for rehearing and suggestion for

rehearing in banc were denied on October

2, 1992. [Pet.App. 42a]. This Petition for

Writ of Certiorari will be filed before the

expiration of 90 days from October 2, 1992.

This Court's jurisdiction to consider this

case is invoked pursuant to the provisions

of Section 1254(1) of Title 28, United

States Code.

JURISDICTION IN THE CLAIMS COURT

Claims Court jurisdiction to consider this

military pay case was invoked pursuant to

Section 1491(a)(1) of Title 28, United

States Code. (Tucker Act). [Pet.App. 44a].

JURISDICTION IN THE COURT OF APPEALS

Section 1295(a)(3) of the Judicial Code

provided jurisdiction in the Federal Cir-

cuit.

STATUTES INVOLVED

10 U.S.C. § 1408(f£)(1)

The United States and any officer and empl-

oyee of the United States shall not be

liable with respect to any payment made

from retired or retainer pay to any

member, spouse, or former spouse pursuant

to a court order that is regular on its

face if such payment is made in accordance

with this section and the regulations

prescribed pursuant to subsection (h).

10 U.S.C. § 1461(a)

There is established on the books of the

Treasury a fund to be known as the Depart-

ment of Defense Military Retirement Fund

(Hereinafter in this chapter referred to as

the "Fund"), which shall be administered

by the Secretary of the Treasury. The Fund

shall be used for the accumulation of funds

in order to finance on an actuarially sound

basis liabilities of the Department of Def-

ense under military retirement and survivor

benefit programs.

10 U.S.S. § 1463 Payments from the Fund

(a) There shall be paid from the fund —

(1) retired pay payable to members on

the retired lists of the Army, Navy, Air

Force and Marine Corps;

(2) retired pay payable under chapter

67 of this title to former members of the

armed forces (other than retired pay payable

by the Secretary of Transportation);

(3) retainer pay payable to members of

the Fleet Reserve and Fleet Marine Corps

Reserve; and

(4) benefits payable under programs

under jurisdiction of the Department of

Defense that provides annuities for surviv-

ors of members and former members of the

armed forces, including chapter 73 of this

title, section 4 of Public Law 92-425, and

section 5 of Public Law 96-402.

(b) The assets of the Fund are hereby

made available for payments under subsection

(a).

28 U.S.C. § 1254(1) Courts of Appeals;

certiorari, certified

questions

Cases in the courts of appeals may be

reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari granted upon the

petition of the party to any civil or

criminal case, before or after rendition

of judgment or decree.

28 U.S.C. § 1295(a)(3)

(a) The United States Court of Appeals for

the Federal Circuit shall have exclusive

jurisdiction —

(3) of an appeal from a final decision

of the United States Claims Court.

28 U.S.C. § 1491(a)(1):

The United States Claims Court shall have

jurisdiction to render judgment upon any

Claim against the United States founded

either upon the Constitution, or any Act

of Congress or any regulation of an

executive department, or upon any express

or implied contract with the United States,

or for liquidated or unliquidated damages

in cases not sounding in tort. For the

purpose of this paragraph, an express or

implied contract with the Army and Air

Force Exchange Service, Navy Exchanges,

Marine Corps Exchanges, Coast Guard

Exchanges, or Exchange Councils of the

National Aeronautics and Space Administration

shail be considered an express or implied

contract with the United States.

STATEMENT OF THE CASE

Facts

Petitioner earns military retired pay be-

cause of his present and continuing status

as a member of the Regular Air Force whose

name is borne on the retired list; and his

availability for immediate recall to active

duty at any time. Goad v. United States, 24

C1.Ct. 777, 778 (1991) [Pet.App. 6a].

Roland and Mary Beth Goad were divorced pur-

suant to a decree signed by a visiting judge

in Brazos County, Texas on September 19, 1980.

In the apportionment of community property,

Mary Goad was awarded a fraction of Roland's

"Air Force Retirement benefits." [Pet.App. 7a.

In McCarty v. McCarty, 453 U.S. 210 (1981),

this Court decided that the federal statutes

governing military pay prevented state courts

from treating such pay as community property.

This Court specifically held that "Retired

pay cannot be attached to satisfy a property

settlement incident to the dissolution of

marriage. In addition, an Army enlisted man

may not assign his pay, 37 U.S.C. § 701(c)."

McCarty, 453 U.S. at 228 & n.22.

The Uniformed Services Former Spouses' Prot-

ection Act was enacted effective February 1,

1983 purporting to retroactively annul this

Court's McCarty decision. The USFSPA permits

a court of "competent jurisdiction" to award

an amount expressed in dollars or “a: & per-

centage of “disposable retired pay" to a

former spouse in a dissolution proceeding.

No provision is made for the apportionment of

"Air Force Retirement benefits."

On June 24, 1985 Mary Beth Goad submitted

an ex parte application to the Government

for payments from Petitioner's pay. Her regq-

uest was not accompanied by, nor joined with,

any writ, order, summons, or similar process

in the nature of garnishment directed to the

Government. Her request was immediately

approved and payments began for the month of

August 1985. Petitioner's first notice that

his pay had been subjected to garnishment was

sent to him after Mary Beth Goad's ex parte

application had already been approved. The

Government's procedure does not provide for

any prior notice or an opportunity for a

hearing before approval of such applications.

COURSE OF PROCEEDINGS IN CLAIMS COURT

Original complaint was filed on January 22,

1990. [Pet.App. 44a]. Petitioner moved for

summary judgment and presented eight (8)

issues for consideration:

FIRST: The anti-assignment statute (37 U.S.C.

§ 701(c)) has not been amended, modified, or

repealed in any manner that would contradict

this Court's holding in McCarty and there-

fore remains valid notwithstanding Congress'

declaration in the USFSPA. Petitioner reasoned

that Congress was without power to set aside

the construction of a statute that it permits

to remain in force.

SECOND: Military pay, while in the hands of

a disbursing agent remains exempt from garn-

ishment in satisfaction of property awards

because of the restriction on garnishment

in the Texas Constitution and the Federal

Consumer Credit Protection Act.

THIRD: The divorce court never acquired in

rem jurisdiction over Petitioner's future

pay in the divorce proceeding. Petitioner

reasoned that public money in the United

States Treasury was extra patrimonium —

not capable of being privately owned.

FOURTH: Pay earned for personal services

performed by the Petitioner after the date

of divorce was not a part of the estate sub-

ject to apportionment because it was not yet

in existence at that time.

FIFTH: Procedures established under the

USFSPA failed to satisfy due process because

of the failure to provide notice and an Oppo-

rtunity to be heard before garnishment of

pay in satisfaction of "property" awards.

SIXTH: The “direct garnishment" procedure

infringed on the retained powers reserved

to the States under the police power under

which such procedures lay in the exclusive

province of the local law for the enforce-

ment of judgments.

SEVENTH: The Act was infirm because it deleg-

ated power to State judges to determine what

pay would be received by a military member

when, under the Constitution, that power lay

exclusively in the Legislative Department of

the federal government.

EIGHTH: The divorce decree was not a “court

order" as defined in the USFSPA because it

did not apportion "disposable retired pay"

as required by the statute.

These eight questions, as framed in the

brief filed in the Claims Court, are set

out in the appendix. [Pet.App. 58a].

Petitioner specifically invoked Section

1463 of Title 10 as the "money mandating"

Statute under the Tucker Act [Pet.App.

53a]. But the Government's motion to dis-

miss was granted and Petitioner's motion

for summary judgment was denied as "moot"

because:

Mr. Goad must show a Statutory or constit-

utional provision affording him the right

to the payment of money by the United

States in order for this court to grant

him jurisdiction over his clain.

Goad v. United States, 24 c1.ct. 777, 784

(1991) [Pet.App. 33a].

COURSE OF PROCEEDINGS IN COURT OF APPEALS

In the Federal Circuit, Petitioner presen-

ted six issues for consideration. [Pet.App.

60a]. But for the Purposes of this Court's

review, the first issue is relevant:

[1] Section 1463(a)(1) of Title 10, Unitea

States Code provides for a monthly payment

to Appellant out of the DOD Military Retire-

ment Fund. Does that statute provide the

jurisdictional basis for an action in the

United States Claims Court for the recovery

of amounts of Appellant's salary withheld

since September 1, 1985? [Pet.App. 60a].

The Federal Circuit, in AFFIRMING the

dismissal of the complaint in the Claims

Court held:

The Claims Court was correct as a matter

of law. Mr. Goad cannot recover from

the United States the money paid to Mrs.

Goad. Mr. Goad has no claim cognizable

before the Claims Court. This court

properly dismissed his action.

Pet.App. 4a.

The affirmance was predicated on the

dicta in Simanonok v. Simanonok, 918 F.2d

947, 951 (CAFC 1990) that "the FSPA retr-

acts any waiver of sovereign immunity

which might be found elsewhere in the

United States Code." [Pet.App. 4a].

Petitioner brings this petition for a

writ of certiorari to review the decision

of the Federal Circuit.

How the Claims Court Erred

Sets tourt Erred

The Claims Court's erudite discussion of

this case failed to take into account the

familiar well-pleaded complaint rule. For

purposes of jurisdiction, we look only to

the properly pleaded complaint or petition.

E-g-, Franchise Tax Board Vv. Construction

Vacation Trust, 463 U.S. 1, 9-10 (1983).

"(WJhether a case is one arising under the

Constitution or a law or treaty of the

United States, in the sense of the juris-

dictional statute, ... must be determined

from what necessarily appears in the plain-

tiff's statement of his Own Claim in the

bill or declaration, unaided by anything

alleged in anticipation of avoidances or

defenses which it is thought the defendant

may interpose."

Taylor v. Anderson, 234 U.S. 74, 65-76 (1914).

"A suit arises under the law that creates

the cause of action." American Well Works v.

Layne & Bowler Co., 241 U.S. 257, 260 (1916)

(Holmes, J.).

If the statute cited by the claimant mand-

ates payment by the government, the Tucker

Act authorizes suit in the Claims Court.

Vogue v. United States, 844 F.2d 776, 779

(CAFC 1988), cert. denied, 488 U.S. 941

(1989). If the plaintiff asserts that his

Claim “arises under" or is "founded" on fed-

eral legislation or regulation [see United

States v. Emery, Bird, Thayer Realty Co.,

237 U.S. 28, 32 (1915)], "([tJo determine

whether the claim is well founded," the

court must take jurisdiction, whether its

ultimate resolution is to be in the affirm-

ative or the negative." Montana-Dakota Util-

ities Co. v. Northwestern Public Service Co.,

341 U.S. 246, 249 (1951). "Unsuccessful as

well as successful suits may be brought"

upon a federal act or regulation. The Fair v.

Kohler Die & Specialty Co., 228 U.S. 22, 25

(1913). And when an action rests upon a stat-

ute or regulation, that particular enactment

need not contain a specific provision permit-

ting a suit for money, t * Tucker Act serves

the purpose. Simon v. United States, 113

Ct.Cl. 182, 190-191 (1949); Unitea States v.

Mitchell, 463 U.S. 206 (1983).

Amendment or repeal of Tucker Act remedies

is not to be implied. Tipperary Refining Co.

v. United States, 11 C1.ct. 3972, 576-77,

aff'd, 833 F.2d 301 (CAFC 1987), cert. denied,

486 U.S. 1006 (1988).

How the Federal Circuit Erred

In Simanonok v. Simanonok, 918 F.2a4 947,

951 (CAFC 1990) it was stated that "because

the district court lacked jurisdiction over

the United States claims, we Obviously lack

appellate jurisdiction over those claims as

well." Then the court went on to state in

obiter dicta that "the FSPA itself clearly

deprives retirees such as Simanonok of any

recovery from the United States or its agents

merely for carrying out the Act — i.e. the

FSPA retracts any waiver of sovereign immunity

which might be found elsewhere in the United

States Code." 918 F.2d at 951.

Just four terms ago, this Court cautioned

that courts have no authority to reach the

merits of a case in the absence of subject

matter jurisdiction, even if they perceive

it to be "in the interest of justice" to do

so. Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 818 (1988). "A final

determination of lack of subject-matter jur-

isdiction of a case in a federal court, of

course, precludes further adjudication of it."

Willy v. Coastal Corp., 112 S.Ct. 1076, 1080

(1992). The Federal Circuit's dicta in

Simanonok can have no application in this

case. In affirming the dismissal of Petit-

ioner's complaint, the Federal Circuit made

a global assertion that "the FSPA retracts

any waiver of sovereign immunity which might

be found elsewhere in the United States Code."

[Pet.App. 4a]. This wild assertion must be

rejected out of hand. The court was not free

to conclude that the USFSPA accomplished

| acces

deviously that which for certainty's sake

should have been accomplished directly, if

it could be accomplished at all.

Except where an act covers the entire sub-

ject matter of the earlier legislation, is

complete in itself, and is evidently inten-

ded to supersede the prior legislation on

the subject, a later act does not by implic-

ation repeal an earlier act unless there is

such a clear, manifest, controlling, necess-

ary, positive, unavoidable, and irreconcilable

inconsistency and repugnancy, that the two

acts cannot, by a fair and reasonable const-

ruction, be reconciled and given effect and

enforced concurrently. 73 Am.Jur.2d Statutes

§ 401 (1974). It will not do to give this

principle of statutory interpretation mere

lip service and vacillating practical applic-

ot ae aa cH OU a is

ation. A steady adherence to it is important,

primarily to facilitate not the task of judg-

ing but the task of legislating. It is one of

the fundamental ground rules under which laws

are framed. Without it, determining the effect

of a biil upon the body of preexisting law

would be inordinately difficult, and the

legislative process would become distorted by

a sort of blind gamesmanship, in which Members

of Congress vote for or against a particular

measure according to their varying estimat-

ions of whether its implications will be held

to suspend the effect of an earlier law that

they favor or oppose. United States v. Hansen,

249 U.S.App.D.C. 22, 772 F.2d 940, 944 (1985) —

(Scalia, J.), cert. denied, 475 U.S. 1045

(1986).

"When there are statutes clearly defining

the jurisdiction of the courts the force and

effect of such provisions should not be dis-

turbed by a mere implication flowing from

subsequent legislation." Colorado River

Conser. Dist. v. United States, 424 U.S. 800,

808 (1976); Rosecrans v. United States, 165

U.S. 257, 262 (1897). Repeals of jurisdict-

ion are not favored, especially where orig-

inal grant of jurisdiction is specific in

Statute rather than implied by courts.

National Leased Housing Ass'n v. United

States, 22 Cl1.Ct. 649, 653-654 (1991).

The rule is, that an ancient statute will

be impliedly repealed by a later one only

when the later is couched in negative terms,

or when the matter is so clearly repugnant

that it necessarily implies a negative. Where

both acts are affirmative and the substance

such that both may stand together, both are

held to be in force. United States v. Gillis,

95 U.S. 407, 416 (1877); Dr. Foster's Case,

11 Co. 56, 63, 77 Eng.Rep. 1222, 1231 (K.B.

1615). "The repeal of a law, by implication

and construction of a subsequent law, should

be so clear as to leave no reasonable doubt

that such was the intention of the legislat-

;

‘

ure; it should be as certain as an express

repeal. It should not be deduced by an ing-

enious course of argument, but should appear

at once." United States v. Taylor, Crabbe

356, 370, 28 F.Cas. 257, 267, Fed.Cas.No.

16,563 (E.D.Pa. 1840), aff'd, 3 How. (44

U.S.) 197 (1845).

Even where a repeal would be implied as bet-

ween general acts, such repeals of special

acts by a general act will not be implied.

There, even where the words of the general

act embrace the special act, no repeal will

be implied, but the special act will be cons-

trued to be an exception to the general act,

unless it is absolutely necessary to so con-

strue it in order to give its words any mean-

ing at all. Petri v. F.E. Creelman Lumber Co.,

199 U.S. 487, 497 (1905).

Where a claim appears to be within the

Court's jurisdictional statute, as for exam-

ple one founded on statute or contract, that

Claim is not removed from the Court's juris-

diction merely because a plaintiff must make

a constitutional argument to prevail. Gentry

v. United States, 212 Ct.Cl. 1, 5-8, 546 F.2d

343, 345-6 (1976); Alabama Hosp. Ass'n v.

United States, 228 Ct.Cl. 176, 656 F.2d 606,

609-610 (1981), cert. denied, 456 U.S. 943

(1982).

It must not be supposed that the Legislat-

_ure intended by a later statute to repeal a

| prior one on the same subject, unless the

fiast Statute is so broad in its terms and

so clear and explicit in its words as to show

that it was intended to cover the whole sub-

ject, and therefore displace the prior stat-

ute. Frost v. Wenie, 157 U.S. 46, 57 (1894);

Red Rock v. Henry, 106 U.S. 596, 601 (1883);

‘King v. Cornell, 106 U.S. 395, 396 (1882);

In re Henderson, 11 Wall. (78 U.S.) 652, 657

(1871); United States v. Tynen, 11 Wall. (78

U.S.) 88, 93 (1871); McCool v. Smith, 1

Black (66 U.S.) 459, 468 (1862).

gps

"An affirmative act which gives a new

right does not destroy an existing statut-

ory right, unless the intention be apparent

that the two rights should not coexist; and

where two acts are merely affirmative, and

the substance such that both may stand to-

gether, the later does not repeal the earl-

ier, but they both have concurrent efficacy."

Backus v. United States, 75 Ct.Cl. 69, 100,

59 F.2d 242, 257 (1932), cert. denied, 288

U.S. 610 (1933).

It is the "duty" of the court "to give

effect to both the old and new statute, if

that can be done consistently with the words

employed by Congress in each." United States

v. Healey, 160 U.S. 136, 146 (1895). A law

is not to be construed as impliedly repeal-

ing a prior law “unless no other reasonable

construction can be applied." United States

v. Jackson, 302 U.S. 628, 631 (1938). To find

a repeal, it must be "impossible" for both

- As;

provisions under consideration to stand.

Wilmot v. Mudge, 103 U.S. 217, 221 (1880).

_Repeals by implication "are never admitted

_ where the former can stand with the new act."

Aare

MD Beas cen sah pasate

RA eA hath 56D

Chew Heong v. United States, 112 U.S. 536,

549 (1884). "If, by any reasonable construc-

tion, the two statutes can stand together,

they must so stand." South Carolina v. Stoll,

17 Wall. (84 U.S.) 425, 431 (1873). And where

express terms of repeal are not used, the pre-

sumption is always against an intention to

repeal an earlier statute, unless there is

such inconsistency or repugnancy between the

Statutes so as to preclude the presumption,

Or the later statute revises the whole sub-

ject matter of the former. Allen v. United

States, 117 Ct.Cl. 385, 387, 91 F.Supp. 933,

936 (1950). The implication must be clear,

necessary, irresistible, and free from

reasonable doubt. Casman v. United States,

143 Ct.Cl. 16, 20, 181 F.Supp. 404, 406

(1958).

Petitioner's military pay is fixed by fed-

eral law. And, services rendered under the

requirements of law or of contract, for

which compensation is fixed, constitutes a

legal demand. Emerson v. Hall, 13 Pet. (38

U.S.) 409, 411 (1839). Furthermore, "the

promised compensation for services actually

performed and accepted ... may undoubtedly

be claimed both upon principles of compact

and of equity." Butler v. Pennsylvania, 10

How. (51 U.S.) 402, 416 (1850). In other

words, when a soldier has performed the ser-

vices for which pay is authorized, he then

has a vested common-law right to claim the

statutory salary that has accrued because

of those services.

No statute, however positive in its terms,

is to be construed as designed to interfere

with existing contracts, rights of actions,

or with vested rights, unless the intention

that it shall so operate is expressly decl-

aoe

ared or is to be necessarily implied, and

pursuant to that rule courts will apply new

Statutes only to future cases, unless there

is something in the nature of the case or in

the language of the new provision which

shows that they were intended to have retro-

active operation. Even though the words of

the statute are broad enough in their literal

extent to comprehend existing cases, they

must yet be construed as applicable only

to cases that may hereafter arise, unless

the language employed expresses a contrary

intention in unequivocal terms. Twenty Per

Cent Cases, 20 Wall. (87 7.8.3 -179,. 203

(1874). No silent implied and constructive

repeals ought ever to be understood to

devest a vested right. Rutherford v. Green,

2 Wheat. (15 U.S.) 196, 203 (1817). This

doctrine of the repeal of statutes and the

destruction of vested rights by implication

is unfavored in the law. Every doubt should

be resolved against a construction so fr-

aught with mischiefs. There is nothing in

the language of the USFSPA which in the

Slightest degree warrants the inference

that those who framed or those who adopted

it intended that such would be its effect.

The proposition, if carried out in this

case, would, in effect, take away one man's

property and give it to another. And the

deprivation would be "without due process of

law." This is forbidden by the fundamental

principles of the social compact. Osborn v.

Nicholson, 13 Wall. (80 U.S.) 654, 662 (1872),

Wilkinson v. Leland, 2 Pet. (27 U.S.) 628, 65!

(1829); Denny v. Mattoon, 2 Allen (84 Mass.)

361, 381-2 (1861); Wynehamer v. The People,

3 Kernan (13 N.Y.) 378, 394 (1856); Hoke v.

Henderson, 4 Dev. (15 N.C.) 1, 15 (1833).

Why A Claims Court?

The Government has developed a system

which enables its citizens to assert claims

against it and receive fair and just comp-

ensation when those claims are justified.

The Court was established in 1855 to provide

a better way of meeting those needs. As the

principal forum for adjudication of claims

against the United States, it played a vital

role in the functions and structure of our

Government. Military pay cases have always

been an important part of the court's cases.

The first reported case, Todd v. United

States, Ct.Cl. Rep. No. 1 to the House of

Representatives, 34th Cong., lst Sess.

(Serial Set 871) (Mar. 6, 1856), was a pay

case. The court recommended payment of $553

3./ See: W. Cowen, P. Nichols, Jr.. M.

Be nnett, THE UNITED STATES COURT OF CLAIMS,

A HISTORY, PART II, ORIGIN — DEVELOPMENT

— JURISDICTION, 1855-1978, reprinted in

216 Ct.Cl. 1-183 (1978).

in settlement of the account of a Navy

purser, arising during the War of 1812. No

statute of limitation had yet been adopted.

"Whatever the caprice with which the sover-

eign has expanded or contracted its consent

to be sued over the span of the years, there

Still exists, and will always exist, a need

to bring the Government before the bar of

justice when it has made a judicially remed-

liable error. ... The individual needs protec-

tion against the excesses of big government,

and the Government needs protection against

the unreasonable demands of some citizens.

How better to meet these needs than in a

court free from local influences and prejud-

ices, and with the opportunity to set a unif-

orm rule of law in cases because of its

nationwide jurisdiction?" ...

"Finally, as the Government grows even

larger, it is essential that it should never

become more powerful before the law than its

/most humble citizen, if our system is to

survive in freedom. A unique and permanent

contribution that the Court of Claims has

made over the span of its long life as a

public institution is in how it helps to make

Government officials accountable to the citi-

zens whose servants they are, but whose relat-

ionship to their masters is sometimes forgot-

ten. In helping to inspire a high standard of

Miter tine FSA ck (tie FF ge

conduct for Government officials, it serves

the nation well. If there is a constant thread

running through the court's decisions, it

would seem to be in holding the Government

and its officials to a strict code of cond-

uct in their relations with citizens. While

_this duty is shared by other courts, it is a

special responsibility for a court created

as the main forum for claims against the

sovereign. The basic assumption is that the

Government can be wrong — a concept rejected

by most governments in the world today — and

that where found to be wrong it will be

brought to account and made to pay.

Such a court is the flower of a free society."

The United States Court of Claims, A History,

216 Ct.Cl. 1, 169-171 (1978).

George Wythe gave pioneer expression to the

idea of judicial review of legislative acts:

Among all the advantages, which have arisen

to mankind, from the study of letters, and

the universal diffusion of knowledge, there

is none of more importance, than the tend-

ency they have had to produce discussions

upon the respective rights of the sovereign

and the subject; and upon the powers which

the different branches of government may

exercise. For, by this means, tyranny has

been sapped, the departments kept within

their own spheres, the citizen protected,

and general liberty promoted. But this ben-

eficial result attains to higher perfect-

ion, when those, who hold the purse and the

sword, differing as to the powers which

each may exercise, the tribunals, who hold

neither, are called upon to declare the

law impartially between them. For thus the

pretensions of each party are fairly exam-

ined, their respective powers ascertained,

and the boundaries of authority peaceably

established."

Commonwealth v. Caton, 4 Call.(8 Va.) 5, 7

(1782).

Why a "Tucker Act"?

"IT IS AS MUCH THE DUTY OF GOVERNMENT TO

RENDER PROMPT JUSTICE AGAINST ITSELF, IN

FAVOR OF CITIZENS, AS IT IS TO ADMINISTER

THE SAME BETWEEN PRIVATE INDIVIDUALS." .

In proposing the Tucker Act (25 Stat. 505,

March 3, 1887), Representative Randolph

Tucker of Virginia sought to relieve him-

self and his colleagues of a large mass of

private claims which encumbered their busin-

ess and prevented them from discharging the

other duties in the interest of the country.

The Act proposed to expand the Court of

Claims jurisdiction beyond that established

Fin 1855; however, the court had already

_ exercised the jurisdiction to hear and det-

ermine claims founded upon federal law.

Justice Holmes, speaking for this Court in

|4_/ State of the Union Message by President

Lincoln, Dec. 3, 1861, quoted in Cong.

Globe, 37th Cong., 2nd Sess., Pt. IV, App.

at 2 (1862).

United States v. Emery, Bird, Thayer Realty

Co., 237 U.S. 28, 32 (1915), said in inter-

preting the Tucker Act: "([It is an] inadmi-

ssible premise that the great act of justice

embodied in the jurisdiction of the Court of

Claims is to be construed strictly and read

with an adverse eye."

"'The exemption of the sovereign from suit

involves hardship enough where consent has

been withheld. We are not to add to its rigor

by refinement of construction where consent

has been announced.'" Block v. Neal, 460 U.S.

289, 298 (1983) (quoting Anderson v. Hayes

Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28,

29-30 (1926) (Cardozo, J.)).

By establishing the Claims Court, a tribunal

was created to determine the right to receive

money due from the government and it did not

"leave the Treasury or its officers free to

arbitrarily select, between conflicting

Claimants, the one to whom payment should be

“4

made." United States v. Borcherling, 185

©U.S. 223, 234 (1902).

REASON FOR GRANTING THE WRIT

The Tucker Act constitutes the required

‘waiver of sovereign immunity. In United

|States v. Mitchell, 463 U.S. 206 (1983),

“this Court concluded that by giving the

‘Claims Court jurisdiction over specified

i types of claims against the United States,

al ard:

the Tucker Act constituted a waiver of sov-

ereign immunity with respect to those claims.

The Department of Defense Military Retirement

RIAL RAS TIS LE Me OER I

> Fund was established for the especial benefit

PMS

tng

of military personnel whose names are borne

d on the retired lists and therefore that

» statute provides the proper statutory basis

A ror this pay claim under the methodology

J estanlished in Cort v. Ash, 422 U.S, 66

(1975).

Petitioner's right to bring this action in

the Claims Court for recovery of his pay

is not a privilege that may be granted or

denied at the Government's whim. It is this

right to vindicate one's rights in a court of

justice that is at the heart of the right to

"due process of law." This right to petition

for redress is at the very core of the First

Amendment protections accorded to all of us.

The right to petition is the birthright of

every American and the accepted heritage of

all civilized peoples. To refuse this

Petition would permit the Court to "disreg-

ard the considered limitations of the law

it is charged with enforcing." Bank of Nova

Scotia v. United States, 487 U.S. 250, 254

(1988). Courts are established to render

justice for the parties. A court is supposed

to apply the correct law to matters before

it, not apply law it knows is wrong.

CONCLUSION

Petitioner respectfully requests the

Court to exercise its discretion by grant-

-ing this Petition and remand the entire

case to the United States Court of Appeals

_for the Federal Circuit with instructions

ito proceed with the appeal and consider

those questions properly raised by the

| parties.

Respectfully submitted.

ROLAND L. GOAD, Petitioner

310 Sara Lane

Huntsville,Texas 77340

(409) 291-2430

(pro se)

'26 October 1992

App. A la

Opinion of the United States Court of App-

eals for the Federal Circuit, filed on

August 12, 1992 affirming Goad v. United

States, 24 C1.Ct. 777 (1991).

NOTE: Pursuant to Fed. Cir. R. 47.8, this

disposition is not citable as precedent.

It is a public record. The disposition will

appear in tables published periodically.

UNITED STATES COURT OF APPEAL

FOR THE FEDERAL CIRCUIT

92-5053

ROLAND L. GOAD,

Plaintiff-Appellant,

Vv.

THE UNITED STATES,

Defendant-Appellee.

Decided: August 12, 1992

Before ARCHER, Circuit Judge, SKELTON,

Senior Circuit Judge, and RADER, Circuit

Judge.

RADER, Circuit Judge.

DECISION

Mr. Roland L. Goad appeals the RUSCC 12(b)

(4) dismissal of his claim for refund of

Ni ceeaseeiiiaiaieiteminaiimiiamiaiiitiaaastiie)

App. A (Cont'd) 2a

military retirement funds paid to his ex-

wife. This court affirms.

OPINION

On September 19, 1980, Mr. amd Mrs. Goad

‘were divorced. The divorce decree awarded

ors. Goad twelve twenty-sevenths (12/27) of

oor. Goad's Air Force Retirement benefits.

dor. Goad did not pay Mrs. Goad the portion

lor his retirement awarded by the divorce

Gaecree. In 1985, Mrs. Goad applied to the

Air Force Accounting and Finance Center

(AFAFC) for direct payment of her portion of

Bthe retirement benefit. The Uniformed Serv-

j ices Former Spouses' Protection Act (USFSPA)

authorized direct payment. See 10 U.S.C. §

1408 (1988). Mr. Goad objected to the direct

1 payments, but the AFAFC found no merit in

>Mr. Goad's objections.

Mr. Goad filed a complaint in the United

» States Claims Court seeking the return of

funds paid to Mrs. Goad by the government.

App. A (COnt'd) 3a

The Claims Court dismissed Mr. Goad's comp-

laint for "failure to state a claim upon

which relief can be granted." RUSCC 12(b)

(4). The Claims Court reasoned that the

United States had not waived its sovereign

immunity for suits seeking refund of USFSPA

payments. Therefore, Mr. Goad did not state

a Claim cognizable in the Claims Court.

Section 1408(£)(1) of Title 10 (1988) says:

The United States and any officer and empl-

oyee of the United States shall not be lia-

ble with respect to any payment made from

retired or retainer pay to any member,

spouse, or former spouse pursuant to a

court order that is regular on its face if

such payment is made in accordance with

this section and the regulations prescribed

pursuant to [this Act].

(Emphasis added.)

The Claims Court found that the court order

mandating payment was "regular on its face."

Furthermore, Mr. Goad makes no argument that

the payments were not made in accordance

with the USFSPA.

In Simanonok v. Simanonok, 918 F.2d 947

' App. A (Cont'd) 4a

(Fed. Cir. 1990), this court characterized

a Claim similar to Mr. Goad's as frivolous":

The foundation of [Plaintiff's] suit is the

asserted unconstitutionality of the FSPA,

and his claims against all defendants seek

recovery for their actions in implementing

and carrying out the FSPA. Yet the FSPA

itself clearly deprives retirees such as

[Plaintiff] of any recovery from the United

States or its agents merely for carrying

out the act -- i.e. the FSPA retracts any

waiver of sovereign immunity which might be

found elsewhere in the United States Code.

i Id. at 951.

The Claims Court was correct as a matter of

flaw. Mr. Goad cannot recover from the United

| States the money paid to Mrs. Goad. Mr. Goad

/has no claim cognizable before the Claims

/ Court. This court properly dismissed his

' action.

App. B 5a

Opinion of the United States Claims Court,

filed on December 23, 1991, published in

24 Cl.Ct. 777 (1991). Appealed to Federal

Circuit and affirmed, No. 92-5053.

IN THE UNITED STATES CLAIMS COURT

No. 90-72C

(Filed: December 23, 1991) |

ROLAND L. GOAD, Motion for summary judg-

ment; retired member of

U.S. Air Force; Uniformed

Services Former Spouses'

)

Vv. ) Protection Act, 10 U.S.C.

)

Plaintiff

§ 1408; honor state court

orders granting portions

of military retirement

benefits to former spouse. |

THE UNITED STATES,

Defendant

Roland L. Goad, Huntsville, Texas, pro se

plaintiff.

James M. Kinsella, Washington, D.C., with

whom was Assistant Attorney General Stuart

M. Gerson, for defendant.

OPINION

REGINALD W. GIBSON, Judge:

Introduction

This military pay case is before the court

pene ae, Weer hy

App. B (Cont'd) 6a

on the Plaintiff's Motion for Summary Judg-

ment and the Defendant's Motion To Dismiss.

Both parties have filed their respective

» oppositions to the foregoing motions. The

issues have been fully briefed and, for the

following reasons, the defendant's motion to

S dismiss is granted and the plaintiff's motion

» for summary judgment is denied as moot.

* Facts

Roland Lee Goad, plaintiff, is a member of

q the United States Air Force on the retired

list. Mr. Goad remains entitled to earn pay

based on his continuing military status and

Phis availability for immediate recall if the

Secretary of the Air Force deems it to be

necessary.

On September 19, 1980, after 30 years of

q marriage, Roland Goad and his wife, Mary Beth,

were divorced in the 272nd District Court of

Brazos County, Texas. Pursuant to the divorce

decree, Mrs. Goad was awarded twelve twenty-

App. B (Cont'd) 7a

sevenths (12/27) of plaintiff's Air Force

retirement benefits." . Mr. Goad refused to

comply with the payment as ordered by the div-

orce decree, and, on January 7, 1985, the

same court which had issued the divorce dec-

ree held Mr. Goad in contempt. That court

also found that Mr. Goad was in arrears to Mrs.

Goad in the total sum of $30,099.42. 7

In 1982, the United States Congress passed

the Uniformed Services Former Spouses' Protec-

3 The essential purpose of

tion Act (USFSPA).

the USFSPA was to remedy the prior Supreme

Court decision in McCarty v. McCarty, 453

1_/ The language of the divorce decree states that

"TT IS FURTHER ORDERED, that ROLAND LEE GOAD, shall,

upon receipt of all United States Air Force Retire-

ment benefits, immediately deliver twelve/twenty-

sevenths (12/27) of said retirement benefit, by Uni-

ted States mail to MARY BETH GOAD at her current

place of residence."

2_/ Plaintiff subsequently filed a petition for a

writ of habeas corpus in the Texas Supreme Court,

seeking relief from the district court order

issued on January 7, 1985. The Texas Supreme Court

denied his petition.

3/ (next page]

App. B (Cont'd) 8a

+3 / 10 U.S.C. § 1408 (1988). Pertinent sections of

> this statute are as follows:

710 U.S.C. § 1408(a)(1)(A): (a) In this section: (1)

> "Court" means - (A) any court of competent jurisdic-

+ tion of any State, the District of Columbia, the

| Commonwealth of Puerto Rico, Guam, American Samoa,

) the Virgin Islands, the Northern Mariana Islands,

) and the Trust Territory of the Pacific Islands; (B)

) any court of the United States (as defined in sect-

+ ion 451 of title 28) having competent jurisdiction;

and (C) any court of competent jurisdiction of a

foreign country with which the United States has an

7» agreement requiring the United States to horor any

7 court order of such country.

710 U.S.C. § 1408(a)(2): (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 property settlement incident to

# such a decree ... which - (C) in the case of a divis-

@ ion of property, specifically provides for the pay-

» ment of an amount, expressed in dollars or as a per-

centage of disposable retired or retainer pay, from

= the disposable retired or retainer pay of a member

# to the spouse or former spouse of that member.

10 U.S.C. § 1408(c)(1): Subject to the limitations of

# this section, the court may treat disposable retired

Or retainer pay payable to a member for pay periods

= beginning after June 25, 1981, either as property

} solely of that member or as property of the member and

his spouse in accordance with the law of the juris-

diction of such court.

10 U.S.C. § 1408(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.

App. B (Cont'd) 9a

U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589

(1981) (holding that military retirement pay

was not divisible community property because

the grant to a spouse contravened Congress's

intention that such pay actually reach the

beneficiary). The USFSPA unequivocally alters

the holding in McCarty. For example, the USFSPA

allows the federal government to honor a state

court order which grants a segment of military

retirement benefits to former spouses of milit-

ary employees. The statute also allows, under

particular circumstances, the withholding and

direct transfer of the court-ordered amount to

the former spouse. 10 U.S.C. § 1408(d).

Pursuant to the USFSPA, on June 24, 1985,

Mrs. Goad applied to the Air Force Accounting

and Finance Center (AFAFC) to receive directly

a portion of Mr. Goad's retirement pay. On

June 28, 1985, the AFAFC forwarded to the

4 / Mrs. Goad's application included a copy of

the divorce decree, the contempt order, and the

Genial of habeas corpus relief.

App. B (Cont'd) 10a

plaintiff a notice that it had received Mrs.

Goad's application for benefits under the

USFSPA. The letter sent to the plaintiff

stated that the United States Air Force was

required by federal law to honor Mrs. Goad's

request. However, the letter also advised the

plaintiff that if there existed any "conflict-

ing court orders" which cast doubt upon the

divorce decree, these orders should be sent to

the AFAFC within 30 days. If such orders were

not sent within this time frame, the AFAFC

stated that the requested fraction (or percent-

age) of benefits would be deducted from Mr.

Goad's August 1985 retired pay. ° Although the

plaintiff forwarded two objection letters to

the AFAFC, it found no merit in them and sub-

sequently began withholding twelve twenty-

sevenths (12/27) of plaintiff's retired pay

for Mrs. Goad.

5_/ Mrs. Goad was not seeking any retroactive

benefits.

App. B (Cont'd) lla

In December of 1985, Mr. Goad asked the

AFAFC to reconsider its decision. The AFAFC

again denied Mr. Goad's request. Following

this rejection, Mr. Goad filed an action in

the United States District Court for the

Southern District of Texas. 6 In that action,

he challenged the constitutionality of the

USFSPA and the actions of the AFAFC. The

court held that plaintiff's "action for monet-

ary relief must be dismissed because this

Court lacks subject matter jurisdiction under

the Tucker Act." Id. at 1076. The court reas-

oned that the Tucker Act confers concurrent

jurisdiction to both the United States Dist-

rict Courts and the United States Claims Court

for claims not involving torts against the

United States for damages not in excess of

6 _/ Goad v. United States, 661 F.Supp. 1073 (S.D.

Tex.), aff'd in part, vacated in part, 837 F.2d 1096

(Fed.Cir. 1987), cert. denied, 485 U.S. 906 (1988).

The undisputable facts at bar, substantially mirror

the facts in the district court litigation.

App. B (Cont'd) 12a

$10,000. 28 U.S.C. § 1346(a)(2) (1982). How-

ever, Claims in excess of $10,000 are within

the exclusive jurisdiction of the United

States Claims Court. Since the district co-

urt found Mr.[] Goad's claim to exceed $10,

000, the court held that it lacked the requis-

ite jurisdiction to entertain the claim.

Nevertheless, the district court did hold

that it possessed the requisite subject matter

jurisdiction to consider the plaintiff's claim

for declaratory relief — specifically that

the AFAFC payments directly to Mrs. Goad

violated federal statutes, the United States

Constitution, and the State of Texas Constit-

ution. The district court held that each of

7/ Plaintiff's complaint in the district court

asserted the following claims:

1. The AFAFC's direct payments to Mrs Goad viol-

ated the USFSPA.

2. The AFAFC's direct payments to Mrs. Goad are

prohibited by the Texas Constitution.

3. The AFAFC's direct payments to Mrs. Goad vio-

lated Consumer Protection Act.

4. The AFAFC's direct payments to Mrs. Goad vio-

lated 37 U.S.C. § 701(c) (1988). (Cont'd)

App. B (Cont'd) 13a

the asserted claims lacked merit, and,

therefore, dismissed the suit. In addition,

because the court found that each claim

lacked merit, the court declined to transfer

the suit to the United States Claims Court

pursuant to 28 U.S.C. § 1631, inasmuch as it

would not be in the "interest of justice."

Goad, 661 F.Supp. at 1077. 6

(note 7 cont'd)

5. The USFSPA is unconstitutional because it dep-

rives the plaintiff of due process and equal protec-

tion.

6. The Goad's divorce decree was invalidated by

the McCarty decision and cannot be resuscitated by

the USFSPA.

7. The USFSPA is unconstitutional because it imp-

ermissibly delegates legislative power to the states.

Goad, 661 F.Supp. at 1077.

8 / Pursuant to Fed. R. Civ. P. 11, the district

court also awarded sanctions against Mr. Goad. First,

the court found that Mr. Goad's claims were not warr-

anted by existing law, but rather that they were

"patently frivolous." Id. at 1080-81. Second, the

court found that there existed a "meanness of spirit"

in Mr. Goad's action. Id. at 1081. (Mr. Goad's persis-

tent attempts to strip Mrs. Goad of the property

granted to her by the divorce decree and to punish

the AFAFC for honoring that decree can only be char-

acterized as harassment."). As a result the district

court ordered sanctions in the amount of $4,748.40.

Id.

App. B (Cont'd) 14a

Mr. Goad appealed the judgment of the

United States District Court for the South-

ern District of Texas to the United States

Court of Appeals for the Federal Circuit. 9

The Federal Circuit affirmed the segments of

the district court's holding dismissing the

suit for lack of jurisdiction, refusing to

transfer the action to the United States

Claims Court because the transfer would not

be in the interest of justice, and awarding

Sanctions pursuant to Fed. R. Civ. P. 11.

However, the Federal Circuit reversed the

district court's holding that it possessed

the requisite jurisdiction to hear Mr. Goad's

suit for declaratory relief. As a result, the

Federal Circuit vacated the grant of summary

judgment, and remanded to the district court

with instructions to dismiss the complaint

for lack of jurisdiction.

9 / Goad v. United States, No. 87-1488, slip op.

(Fed. Cir. Dec. 9, 1987).

App. B (Cont'd) 15a

On January 22, 1990, Mr. Goad filed a com-

plaint, pro se, in this court, seeking to

obtain a judgment on those amounts of his

Salary that were withheld and forwarded to

Mrs. Goad since September 1, 1985. In his

complaint, plaintiff asserts the following

bases for his claims:

1. The divorce decree does not qualify as

a court order under the USFSPA;

2. Plaintiff's pay is exempt from execut-

ing garnishment, levy, or seizure in

satisfaction of a community property

Claim;

3. The fact that Congress declared that

the USFSPA would apply retroactively

and thereby annul a prior United States

Supreme Court decision contravenes the

principles of separation of powers;

4. Congress has acted in excess of its auth-

ority by delegating to state courts the

authority to determine whether or not to

apportion retired pay as community prop-

erty;

5. The direct pay procedures of the United

States Air Force has deprived the plain-

tiff of his pay without due process of law;

and

6. The USFSPA which allows direct payments

from the AFAFC without having to resort

to periodic state garnishment procedures

violates the equal protection of the law

as mandated by the Fifth Amendment to the

United States Constitution.

App. B (Cont'd) 16a

On March 23, 1990, plaintiff filed a motion

for summary judgment with supporting affid-

avit pursuant to RUSCC 56(a). On May 21, 1990,

the defendant filed a motion to dismiss for

failure to state a claim pursuant to RUSCC

12(d)(4) and a response to plaintiff's motion

for summary judgment. On June 5, 1990, plaint-

iff filed a reply to the defendant's motion

10 and on June 28, 1990, the

to aismiss,

defendant filed a reply brief. It is the

motion for summary judgment and motion to

dismiss which the following contentions and

discussion will address.

Contentions of the Parties

10 _/ In his June 5, 1990 submission, the plaintiff

also moved to "strike out and disregard the insuffic-

ient defenses of ‘sovereign immunity' and 'res judi-

cata' put forth by the defendant in its motion to

dismiss; and to strike out and disregard those docu-

ments appended to Defendant's motion that are redund-

ant or contain immaterial, impertinent, or scandalous

matter." Defendant filed a response thereto on June

28, 1990, and plaintiff filed a reply on July 9, 1990.

This court finds no justification for the plaintiff's

arguments with respect to this motion and thereby

denies said motion to strike.

App. B (Cont'd) 17a

1. Plaintiff

Plaintiff, in his motion for summary judg-

ment, is seeking two legal conclusions. First,

he is requesting that this court grant an

order quashing, dissolving, and recalling

DD Form 2293 ("Request for Former Spouse Pay-

ments From Retired Pay") which is dated June

24, 1985. This is the form which Mrs. Mary

Beth Goad submitted to determine if she was

eligible for payments from her former spouse's

retired pay. Secondly, the plaintiff is requ-

esting that judgment be entered against the

United States for all amounts of plaintiff's

pay that have been withheld under the USFSPA

since September 1, 1985, and for plaintiff's

court costs and other relief to which this

court believes the plaintiff is entitled.

In support of his summary judgment motion,

plaintiff makes the following arguments.

First, the plaintiff contends that regard-

less of the passage of the USFSPA, 37 U.S.C.

_O I

App. B (Cont'd) 18a

§ 701(c) remains valid and therefore still

applies to community property claims. 37

U.S.C. § 701(c), known as the Anti-Assign-

ment Statute, states that "[a]n enlisted

member of the Army or Air Force may not assign

his pay, and if he does so, the assignment is

void." The United States Supreme Court addre-

ssed the statute in McCarty, 453 U.S. at 228-

229 n.22 ("(rjJetired pay cannot be attached to

Satisfy a property settlement incident to the

dissolution of marriage. ... In addition, any

Army enlisted man may not assign his pay. 37

U.S.C. § 701(c)."). Based on this authority,

plaintiff argues that because he had not yet

earned any prospective pay at the time of the

divorce decree in 1980, it was not property in

possession. As a result, plaintiff contends

that strong public policy considerations ex-

ist which are in contravention of the assign-

ment of a public servant's unearned income.

Furthermore, the plaintiff argues that 37

App. B (Cont'd) 19a

U.S.C. § 701(c) has not been repealed, modif-

ied, or amended by Congress in a way which

could contradict McCarty. Finally, plaintiff

notes that even though the United States

District Court for the Southern District of

Texas found that the argument that direct pay-

ments to Mrs. Goad violated 37 U.S.C. § 701(c)

was without merit, the United States Court of

Appeals for the Federal Circuit vacated this

portion of the holding because it found that

the district court was without jurisdiction to

entertain the declaratory relief claim.

Plaintiff's second contention is that disp-

Osable retired pay held by the United States

Air Force remains exempt from execution, atta-

chment, levy, service, or garnishment in satis-

faction of a community property award. In supp-

ort of his contention, plaintiff notes that the

Consumer Credit Protection Act (CCPA), 15 U.S.C.

§§ 1671-1677, limits the maximum amount of an

individual's earnings subject to garnishment to

App. B (Cont'd) 20a

25% of disposable income. The plaintiff also

notes that the effect of the 1974 Social Ser-

vice Amendments to the CCPA was to bring the

federal government under control of the ind-

ividual state garnishment laws as if the

federal government were a private employer

within the state. Therefore, the plaintiff

argues that under Texas law, garnishment is

not available to a spouse seeking to enforce

an order awarding the pay as community prop-

erty in a divorce. In addition, plaintiff

guotes the Texas Constitution which states

that:

No current wages for personal services

shall ever be subject to garnishment,

except for the enforcement of court

ordered child support payments.

Tex. Const., Art. XVI, § 28.

Plaintiff's third argument is that the Texas

state court which issued the 1980 divorce

decree did not possess the requisite juris-

diction over the plaintiff's disposable

retired pay, and, therefore, did not possess

App. B (Cont'd) 2la

the authority to order the pay to be partit-

ioned. Principally, the plaintiff argues that

because the res (retired pay) which Mrs. Goad

sought had never been located in mee, but

rather was in the possession of the United

States Treasury, the Air Force was not amen-

able to process by the Texas state court. As a

result, plaintiff contends that the Texas

State court did not have personal jurisdict-

ion in rem over the holder of the res. As

Support, plaintiff states that debt due from

the United States cannot be treated as local

assets subject to in rem jurisdiction because

the United States in its sovereign capacity

possesses no particular place of domicile.

The fourth contention offered by the plain-

tiff is that military retired pay which is

earned for services performed after the divorce

has occurred does not constitute a part of

the "estate of the parties" which is subject

to apportionment. In addition, the plaintiff

App. B. (Cont'd) 22a

argues that no right to retired pay accrues

to a military serviceman by virtue of past

military service, but that the determining

factor is his present status. In this instance,

the plaintiff contends that his office is not

property and the prospective pay is not pers-

onal property [or] an "account receivable"

that can be a part of a divorce apportionment.

Plaintiff's fifth argument is that the USFSPA

violates the Due Process Clause of the Fifth

Amendment of the United States Constitution

because the USFSPA did not provide him with

a proper forum to challenge the direct diver-

sion of funds to his former spouse. Specific-

ally, plaintiff points to the fact that Mrs.

Goad's application was not accompanied by any

legal process from a court directed to the

United States Air Force, and the fact that the

plaintiff was notified by the Air Force after

Mrs. Goad's application had already been

approved.

App. B (Cont'd) 23a

The sixth argument offered by the plaint-

iff is that the USFSPA violates equal prot-

ection under the United States Constitution

by providing special privileges to former

spouses of retired military members. In supp-

ort of his argument, the plaintiff states that

the USFSPA is a special law, the purpose of

which is to allow former spouses of military

members to receive court-ordered payments dir-

ectly from the military without any periodic

garnishment proceedings. This, the plaintiff

contends, directly infringes upon the reserved

powers of the states by assuming part of the

police powers.

Plaintiff's seventh contention is that Cong-

ress has violated the principles of separation

of powers and nondelegation of legislative pow-

ers by its adoption of 10 U.S.C. § 1408(c)(1),

which provides that a court may treat dispos-

able retired pay as property of both the mil-

itary member and his spouse in accordance

App. B (Cont'd) 24a

with the law of jurisdiction of that court.

The eighth and final argument offered by

the plaintiff in support of his summary judg-

ment motion is that the 1980 divorce decree

issued by the Texas state court is not a

"court order" as required by the USFSPA.

2. Defendant

On May 21, 1990, the defendant filed a

motion to dismiss and a response to the plain-

tiff's motion for summary judgment. I: support

of its position, the defendant offers two

essential arguments. First, the defendant

contends that the United States is immune

from liability for USFSPA payments pursuant to

the divorce decree issued by the Texas state

court which is "regular on its face." The

defendant states that the Tucker Act (28 U.S.C.

§ 1491), which the plaintiff cites as his jur-

isdictional basis, does not create a right of

recovery against the United States, but rather

grants jurisdiction when the right exists.

App. B (Cont'd) 25a

Furthermore, the defendant argues that the

jurisdiction of the United States Claims

Court to hear claims depends upon the extent

to which the United States has waived immun-

ity. As a result, defendant contends that the

plaintiff must establish, in addition to the

Tucker Act, a statutory or regulatory provis-

ion which grants him the right to the payment

of money in order to be awarded jurisdiction

in this court. Therefore, defendant states

that because immunity has not been waived to

permit a claim which challenges USFSPA payments

to a former spouse pursuant to a divorce decree

which is "regular on its face," the plaintiff

has not met his burden of proving jurisdiction.

The defendant's second and final argument is

that the plaintiff's challenge to the USFSPA is

frivolous. In support of its position, the def-

endant states that the United States Court of

Appeals for the Federal Circuit sustained the

District Court for the Southern District of

App. B (Cont'd) 26a

Texas' judgment against the plaintiff issuing

sanctions pursuant to Rule 11 of the Federal

Rules of Civil Procedure. This holding was

based upon a finding that the plaintiff's

attacks on the USFSPA were frivolous and brou-

ght in a mean-spirited campaign of harassment

designed to deprive Mrs. Goad of her right to

the retired pay. As a result, the defendant

argues that the district court's analysis of

the plaintiff's claims demonstrate that they

lack merit.

Discussion

1. Plaintiff's Motion For Summary Judgment

The plaintiff filed his motion for summary

judgment on March 23, 1990. The disposition of

a case on a motion for summary judgment is app-

ropriate where there is no genuine issues as to

any material fact and the movant is entitled to

judgment as a matter of law. RUSCC 56(c). "One

of the principal purposes of the summary judg-

ment rule is to isolate and dispose of factually

App. B (Cont'd) 27a

unsupported claims or defenses." Celotex Corp.

v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct.

2548, 2553, 91 L.Ed.2d 265 (1986). The process

of summary judgment serves judicial economy

and saves the expense and time of a full trial

when it is deemed to be unnecessary. When the

material facts are adequately developed, a full

trial is useless. In this context, "useless"

means that more evidence than is already avail-

able in connection with the motion for summary

judgment could not reasonably be expected to

change the result. Pure Gold, Inc. v. Syntex

(U.S.A.). Inc., 739 F.2d 624, 626 (Fed.Cir.

1984), citing U.S. Steel Corp. v. Vasco Metals

Corp., 394 F.2d 1009, 55 CCPA 1141, 157 USPQ

627 (1968). A material fact "is one which will

make a difference in the result of a case."

Curtis v. United States, 144 Ct.Cl. 194, 199,

168 F.Supp. 213, 216 (1958), cert. denied, 361

U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959). The

function of the judge is not "to weigh the evid

ence to determine the truth of the matter but t

= iii

App. B (Cont'd) 28a

determine whether there is a genuine issue

for a trial." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). The plaintiff, as the

moving party, therefore, has the burden of

establishing that there are no genuine issues

in dispute and that he is entitled to judgment

as a matter of law. Celotex Corp., 477 U.S. at

321, 106 S.Ct. at 2551, citing Catrett v. Johns-

Manville Sales Corp., 244 U.S.App.D.C. 160, 163,

756 F.2d 181, 184 (1985). The defendant, as the

party opposing the motion, then has the burden

of providing sufficient evidence, not necess-

arily admissible at trial, to show that a genu-’

ine issue of material fact indeed exists. Id.,

477 U.S. at 324, 106 S.Ct. at 2553. Any evidence

presented by the defendant "is to be believed,

and ali justifiable inferences are to be drawn

in [its] favor." Anderson, 477 U.S. at 255, 106

Ct. at 2513, citing Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158-59 (1970).

App. B (Cont'd) 29a

In this case the plaintiff moved for euneary

judgment. The defendant filed a response opp-

osing the plaintiff's foregoing motion but

did not cross-move for summary judgment. How-

ever, the defendant did file with its opposit-

ion a motion to dismiss for failure to state

a Claim upon which relief can be granted purs-

uant to RUSCC 12(b)(4).

Therefore, before the summary judgment motion

is address in this case, this court must first

consider the defendant's motion to dismiss. The

reason for this procedure is that if this

court grants the defendant's motion to dismiss,

the motion for summary judgment will, of course,

become moot and, therefore, need not be

addressed.

2. Defendant's Motion to Dismiss

The purpose of RUSCC 12(b) is to promote the

expeditious presentation of defenses and object-

ions. The defendant upon receipt of the compl-

aint, and prior to filing a responsive pleading,

has the option of presenting to the court in the

App. B (Cont'd) 30a

form of a motion to dismiss any of the foll-

owing four defenses as stated in RUSCC 12(b):

(1) How _ presented. ... [T]he following def-

enses may at the option of the pleader be

made by motion: (1) lack of jurisdiction

over the subject matter; (2) lack of juris-

diction over the person; (3) insufficiency

of process; (4) failure to state a claim upon

which relief can be granted. ...

The defendant herein is moving pursuant to

RUSCC 12(b)(4), in which case the court's ingqu-

iry is essentially limited to the content of

the complaint.

When a federal court reviews the sufficiency

of a complaint, before the reception of any

evidence either by affidavit or admissions,

its task is necessarily a limited one. The

issue is not whether a plaintiff will ultim-

ately prevail but whether the claimant is

entitled to offer evidence to support the

Claims. Indeed it may appear on the face of

the pleadings that a recovery is very remote

and unlikely but that is not the test. More-

over, it is well established that, in passing

on a motion to dismiss, whether on the ground

of lack of jurisdiction over the subject mat-

ter or for failure to state a cause of action,

the allegations of the complaint shound be

construed favorably to the pleader.

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.

1683, 1686, 40 L.Ed.2d 90, 96 (1973). Therefore

the court is limited to deciding the defendant's

App. B (Cont'd) 3la

motion to dismiss within the context of the

well-established principle that the allegat-

ions of fact outlined in the complaint be

"accepted and construed in the light most

favorable to plaintiff." White Mountain Apache

Tribe v. United States, 8 Cl1.Ct. 677, 681

(1985); Conley v. Gibson, 355 U.S. 41, 45-46

(1957) ("{iJn appraising the sufficiency of

the complaint we follow, of course, the accep-

ted rule that a complaint should not be dismis-

sed for failure to state a claim unless it app-

ears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which

would entitle him to relief."). With these gen-

eral guidelines regarding the Claims Court pro-

cedure for reviewing a motion to dismiss pursu-

ant to RUSCC 12(b)(4), and for the reasons exp-

ressed hereinafter, this court must find in

favor of the defendant and dismiss the plain-

tiff's complaint.

App. B (Cont'd) 32a

"The United States, as sovereign, is immune

from suit," unless "it consents to be sued."

United States v. Sherwood, 312 U.S. 584, 586

(1941), citing United States v. Thompson, 98

U.S. 486, 489 (1878) ("The United States poss-

esses other attributes of sovereignty resting

also upon the basis of universal consent and

recognition. They cannot be sued without their

consent."). An example of waiver of immunity is

the Tucker Act, 28 U.S.C. § 1491 (1988), which

confers jurisdiction upon the United States

Claims Court:

--- to render judgment upon any claim against

the United States founded either upon the Con-

stitution, or any Act of Congress or any reg-

ulation of an executive department, or upon

any express or implied contract with the

United States, or for liquidated or unliqu-

idated damages in cases not sounding in

tort.

28 U.S.C. § 1491(a)(1). The Tucker Act, however,

"is itself only a jurisdictional statute; it

does not create any substantive right enforce-

able against the United States for money dama-

ges." United States v. Testan, 424 U.S. 392, 398

App. B (Cont'd) 33a

(1976). "The Court of Claims has recognized

that the Act merely confers jurisdiction upon

it whenever the substantive right exists." Id.

As a result of this federal statute, Mr. Goad

has the burden of showing that the United

States has waived its sovereign immunity to

permit a claim challenging the USFSPA payments

to his former spouse, pursuant to a divorce

decree, through the AFAFC. In other words,

absent a contract, Mr. Goad must show a stat-

utory or constitutional provision affording

him the right to the payment of money by the

United States in order for this court to grant

him jurisdiction over his claim. Mr. Goad has

failed to meet this strict burden. In fact,

another federal statutory provision explicitly

removes any waiver of sovereign immunity on

behalf of the United States with respect to

the direct payment of funds to a military

spouse. According to the USFSPA:

The United States and any officer or employee

of the United States shall not be liable with

App. B (Cont'd) 34a

respect to any payment made from retired or

retainer pay to any member, spouse, or for-

mer spouse pursuant to a court order that is

regular on its face if such payment is made

in accordance with this section and the reg-

ulations prescribed pursuant to subsection

(h).

10 U.S.C. § 1408(f£)(1) (emphasis added). In

view of the explicit foregoing provision, it is

patently clear, therefore, that the United |

States has not waived its immunity to permit a

Claim challenging the USFSPA, as would be req-

uired by the Tucker Act.

If the divorce decree issued by the Texas

state court in 1980 was not "regular on its

face," then the provisions of 10 U.S.C. § 1408

(f£)(1) would not apply, and the United States

would not have disclaimed its liability. The

plaintiff vehemently argues in his motion for

summary judgment that this particular divorce

decree is not a "court order that is regular on

its face" as required by the USFSPA. The court

emphatically disagrees.

App. B (Cont'd) 35a

10 U.S.C. § 1408(a)(2) defines a court order

as:

-.. a final decree of divorce, dissolution,

annulment, or legal separation issued by a

court, or a court ordered, ratified, or app-

roved property settlement incident to such a

decre (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 -

(A) is issued in accordance with the laws

of the jurisdiction of that court;

(B) provided for -

xkxeeaeke

(iii) division of property (including a

division of community property); and

(Cc) 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 retaine:

pay of a member to the spouse or former

spouse of that member.

Furthermore, 10 U.S.C. § 1408(b)(2) states that

... a court order is regular on its face if

the order -

(A) is issued by a court of competent juris-

diction;

(B) is legal in form; and

(Cc) included nothing on its face that prov-

ides reasonable notice that it is issued with

out authority of law.

App. B (Cont'd) 36a

The divorce decree at issue in this case

unequivocally meets this criteria. With resp-

ect to the definition of court order outlined

in 10 U.S.C. § 1408(a)(2), the decree involved

is certainly a "final decree of divorce," the

title of the document being "Decree of Divor-

ce." In addition, the decree was issued "in

accordance with the laws of the jurisdiction

of that court"; more specifically, it was iss-

ued under Texas state law, and provides for a

"division of property" within the contemplat-

ion of 10 U.S.C. § 1408(a)(2)(iii). Finally,

the decree expressly provides for the divis-

ion of property in an amount "expressed in

dollars or as a percentage of disposable ret-

ired or retainer pay." Even though the decree

actually gives a fraction of twelve twenty-

sevenths (12/27) "of the United States Air

Force Retirement benefits," this fraction

mathematically equates to 44.44%, and a frac-

tion is the equivalent of a percentage figure.

App. B (Cont'd) 37a

With respect to the criteria concerning

whether the court order is "regular on its

face" pursuant to 10 U.S.C. § 1408(b)(2), the

evidence is similarly poignant. The order was

issued by a court of competent jurisdiction -

specifically the District Court of Brazos

County, Texas, 272nd Judicial District. In

addition, the order is in traditional legal

form. For example, it is titled "Decree of Div-

orce"; it was signed by the presiding judge and

the court clerk; with the formal stamp appended

thereto; and it has a filing date and case

number. Finally, there is nothing on the docu-

ment that would provide "reasonable notice

that it [was] issued without authority of law."

As noted previously, everything within the docv-

ment suggests that it is legal in form and con-

tent according to Texas state law. Moreover, on

the last page, the clerk of the court duly

certifies it to be a "true and correct copy of

the original."

App- B (Cont'd) 38a

It should be noted that case law provides

for a less stringent examination when consid-

ering whether an order is "regular on its face"

versus the process for determining whether an

order is substantively correct. As a general

rule, the process of ascertaining whether such

an order is regular on its face "demands no

inquiry beyond the face of the document."

Millard v. United States, 16 C1l.Ct. 485, 488

(1989), aff'd, 916 F.2d 1 (Fed.Cir. 1990),

cert. denied, 111 S.Ct. 2012, 114 L.Ed.2d

99 (1991). Moreover, the Supreme Court,

citing In re Matthews, 61 Comp.Gen. 229, 230-

231 (1982), stated that:

"The inguiry into whether an order is

valid on its face is an examination of the

procedural aspects of the legal process

involved, not the substantive issues. Whet-

her a process conforms or is regular ‘on

its face' means just that. Facial validity

of a writ need not be determined ‘upon the

basis of scrutiny by a trained legal mind,'

nor is facial validity to be judged in light

of facts outside the writ's provisions

which the person executing the writ may

know."

———

App. B (Cont'd) 39a

See also United States v. Morton, 467 U.S.

822, 829 n.10, 104 S.Ct. 2769, 2773 n.10, 81

L.Ed.2d 680, 688 n.10 (1984) (The court here

considered the breadth of inquiry necessary

to validate an exercise of in personam juris-

diction over a nonresident defendant versus

the inquiry necessary to determine whether

legal process was "regular on its face." The

court concluded that the jurisdictional ing-

uiry required a strict evaluation of the facts

and law, while the determination of whether

the process was regular on its face was much

more limited.).

Given the foregoing, it is patently clear

that the divorce decree thoroughly satisfies

the requirements set forth in 10 U.S.C. §

1408(f£)(1). Therefore, the defendant has

unequivocally ay the requirements of the

statute and has properly disclaimed any amen-

ability to a lawsuit resulting from its pay-

ment to Mrs. Goad. In light of this reasoning,

App. B (Cont'd) 40a

we hold that the-plaintiff has failed to

state any facts upon which relief can be

granted. The clarity of the language in the

USFSPA, and the regularity of the divorce

decree as a court order, have proven to be

insurmountable obstacles for the plaintiff to

overcome. Therefore the defendant's motion to

dismiss is hereby GRANTED, and plaintiff's

motion for summary judgment is DENIED as moot.

Conclusion

In 10 U.S.C. § 1408(£)(1), the United States

disclaims liability with respect to any pay-

ment made to a former spouse from retired pay.

Therefore, the United States has not waived

its immunity with respect to this particular

form of payment made to Mrs. Goad. Furthermore,

because the divorce decree at issue in this

case conforms to the requirements of the

USFSPA, the plaintiff has no claim upon

which to bring a suit in this court. As a res-

ult, this court must grant defendant's motion

ssreseaeeeenesiernananene teammates

App. B (Cont'd) 4la

to dismiss. Therefore, the plaintiff's sum-

mary judgment motion is denied as moot.

Given the foregoing disposition, it is suff-

icient to say that numerous contentions

averred by plaintiff are totally void of

merit. The Clerk shall enter judgment accord-

ingly. No costs.

IT IS SO ORDERED.

App. C 42a

Order of October 2, 1992 entered by Clerk

of the Federal Circuit denying motion for

rehearing and declining suggestion for

rehearing en banc.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

92-5053

ROLAND L. GOAD,

Plaintiff-Appellant,

Vv.

THE UNITED STATES,

Defendant-Appellee.

ORDER

A combined petition for rehearing and sug-

gestion for rehearing in banc having been

filed by the APPELLANT, and the petition for

rehearing having been referred to the panel

that heard the appeal, and thereafter the

suggestion for rehearing in banc having

been referred to the circuit judges who are

in regular active service,

UPON CONSIDERATION THEREOF, it is

App. C (Cont'd) 43a

ORDERED that the petition for rehearing

be, and the same hereby is, DENIED, and it

is further

ORDERED that the suggestion for rehearing

in banc be, and the same hereby is,

DECLINED.

The mandate of the Court will issue on

October 9, 1992.

FOR THE COURT,

FRANCIS X. GINDHART, CLERK

Dated: October 2, 1992

By (signed)

Diane M. Frye

Chief Deputy Clerk

cc: ROLAND LEE GOAD

JAMES M. KINSELLA

Note: Pursuant to Fed. Cir. R. 47.8, this

order is not citable as precedent. It is a

public record.

App. D 44a

Original Complaint filed in the Claims

Court on January 22, 1990. Case dismissed

for failure to state a claim in Goad v.

United States, 24 C1.Ct. 777 (1991), and

affirmed on August 12, 1992 by the U.S.

Court of Appeals for the Federal Circuit.

IN THE UNITED STATES CLAIMS COURT

ROLAND L. GOAD, Plaintiff

Vv.

THE UNITED STATES, Defendant

ORIGINAL COMPLAINT

TO THE HONORABLE COURT:

Plaintiff brings this action against the

United States to obtain a judgment for those

amounts of his salary that have been unlaw-

fully withheld since September 1, 1985.

JURISDICTION

Jurisdiction over this action is provided

by Title 28, United States Code, Section

App. D (Cont'd) 45a

1491(a)(1) +

(The Tucker Act).

FACTUAL MATTERS

1. Plaintiff 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 immediate recall to

active duty by the Secretary of the Air Force

at any time deemed in the interest of

national defense. 2

1_/ The United States Claims Court shall have juris-

diction to render judgment upon any claim against the

United States founded either upon the Constitution,

or any Act of Congress or any regulation of the exec-

utive department, or upon any express or implied

contract with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.

For the purpose of this paragraph, an express or imp-

lied contract with the Army and Air Force Exchange

Service, Navy Exchanges, or Exchange Councils of the

National Aeronautics and Space Administration shall

be considered as express or implied contracts with

the United States.

2 / It is the policy of the Department of Defense to

use military retirees to meet demands of mobilization

or other emergencies. The Secretaries of the Military

Departments are authorized to order any retired mili-

tary member who has completed at least 20 years of

[Continued ]

App. D (Cont'd) 46a

2. Roland and Mary Beth Goad were divorced

pursuant to a decree signed by a visiting

judge in the 272nd District Court of Brazos

County, Texas on September 19, 1980. (Exhibit

A). In the apportionment of property, Mary

Beth was awarded a fraction of Plaintiff's

"Air Force Retirement benefits." (App. p. 3).

3. In McCarty v. McCarty, 453 U.S. 210 (1981),

the Supreme Court held that the federal stat-

utes then governing military retired pay

ppevented state courts from treating such pay

as community property. The Court concluded

that treating such pay as community property

would do clear damage to important military

personnel objectives. Id. at 228. In reaching

this conclusion, the Court relied particularly

2. / (Continued) active service to active duty at

any time to perform duties deemed necessary in the

interests of national defense in accordance with

10 U.S.C. 688. Military retirees, both regular and

reserve may be ordered to active duty by the Secret-

aries of the Military Departments to satisfy

mobilization requirements. 32 C.F.R. § 64.4.

App. D (Cont'd) 47a

on Congress' refusal to pass legislation

that would have allowed former spouses to

garnish military retired pay to satisfy

property settlements. Id. at 228-32.

4. The Uniformed Services Former Spouses'

Protection Act (USFSPA) was enacted effective

February 1, 1983, purporting to retroactively

annul McCarty. The Act requires that, in the

case of a division of property, the decree

must specify that payment is to be made from

disposable retired pay. 10 U.S.C. § 1408(a)

c2pteFe" |

5. On June 24, 1985, Mary Beth Goad requested

the Air Force to honor her divorce decree as

a “court order" and to pay directly to her

a portion of Plaintiff's disposable retired

3_/ ["Court Order" means a final decree of divorce

which] in the case of a division of property, speci-

fically provides for the payment of an amount exp-

ressed in dollars or as a percentage of disposable

retired or retainer pay, from the disposable retired

or retainer pay of a member to the spouse or former

spouse of that member.

App. D (Cont'd) 48a

retired pay. (Ex. B, App. p. 5). Her request

was immediately approved (Ex. C. p. 6) and

payments began in September 1985 and have

continued to the present time. Her request

was not accompanied by any summons, writ,

warrant, mandate, or other legal process

from any court directed to the Air Force.

Plaintiff's first (and only) notice that his

pay was being garnished was sent to him after

the Air Force had approved payments. (Exhibit

C). The Air Force procedure does not provide

for any prior notice or any opportunity for

a hearing before garnishment actions are

approved.

ACTIONS BY OTHER TRIBUNALS

6. In Goad v. United States, 661 F.Supp.

1073 (S.D.Tex. 1987), vacated in part, 837

F.2d 1096 (CAFC 1987) (table), cert. denied,

485 U.S. 906 (1988), it was held that the

District Court lacked jurisdiction over

Plaintiff's Tucker Act claims because during

App. D (Cont'd) 49a

the pendency of the case the amount of the

Claims had aggregated to more than the

$10,000 ceiling for such claims in the Dist-

rict Court. The court stated that this

Court had exclusive jurisdiction but refused

to transfer the case "because to do so would

not be in the interest of justice." 661

F.Supp. at 1077.

7. In Goad v. Goad, 768 S.W.2d 356 (Tex.App.-

Texarkana 1989, writ denied), cert. denied,

110 S.Ct. [722] (Jan. 8, 1990) it was held

that the State courts in Texas were without

subject-matter jurisdiction to entertain

Plaintiff's action seeking to quash, diss-

Olve and recall the DD Form 2293 "Request

For Former Spouse Payments From Retired Pay"

(Exhibit B, p. 5) served on the Air Force on

June 24 1985 by Mary Beth Goad.

8. In her plea to the jurisdiction, Mary

Goad stated:

This Court does not have subject matter

jurisdiction over this cause of action

App. D (Cont'd) 50a

because the alleged, and non-existent,

writ of garnishment about which plaintiff

complains is not a writ issued by any

court within the State of Texas; because

the defendant has taken no action within

the territorial jurisdiction of the State

of Texas which would give rise to a cause

of action under the laws of the State of

Texas; and because the question of the prop-

riety of the Air Force action in complying

with the Texas divorce decree is governed

exclusively by federal law.

Exhibit D, page 8.

9. The trial court dismissed "for lack of

subject matter jurisdiction." (Exhibit E, p.

9). In affirming the dismissal in the trial

court, the appellate court asserted that the

USFSPA does not give the State court jurisdi-

ction to supervise the performance of the

duties specifically delegated to the Armed

Forces. 768 S.W.2d at 358.

JOINDER OF PERSON NEEDED FOR JUST ADJUDICATION

10. Mary Beth Goad, 1418 Antone Circle, Col-

lege Station, Texas 77840 may have an interest

in this litigation requiring that she be given

an opportunity to appear and protect. She is

App. D (Cont'd) 5la

represented by counsel: Ms. Mary L. Sinder- ’

son, Attorney at Law, 24 Greenway Plaza,

Suite 1601, Houston, Texas 77046. Accompany-

ing this complaint is a motion pursuant to

USCC Rule 14(a)(3) requesting the Court to

notify Mary Beth Goad of this pending action.

CITATION OF STATUTES, REGULATIONS AND ORDERS

11. The Constitution permits Congress to

vest authority in the heads of Departments

to appoint such inferior officers as they

think proper. U.S. CONST., Art. II, § 2,

ei. Be 4

Under this authority, Plaintiff was

enlisted in the Armed Forces on September 23,

1947. In 1974, the Secretary of the Air

4 _/ [The President] shall have power, by and with

the Advice and Consent of the Senate to make Treaties,

provided two thirds of the Senate present concur; and

shall nominate, and by and with the advice and con-

sent of the Senate, shall appoint Ambassadors, other

Public Ministers and Consuls. Judges of the supreme

Court, and all other officers of the United States,

whose Appointments are not herein otherwise provided

for, and which shall be established by law; but the

Congress may by law vest the Appointment of such

inferior Officers, as they may think proper, in the

President alone, in the Courts of Law, or in the

Heads of Departments.

App. D (Cont'd) 52a

Force approved Plaintiff's request to volun-

tarily be placed on the retired list of the

Air Force pursuant to 10 U.S.C. § 8914. >

12. Public Law 98-94 (Defense Authorization

Act) provided for accrual funding of the mil-

itary retirement system and for the establish-

ment of a Department of Defense Military Ret-

irement Fund in 1985. The Fund is intended to

cover the unfunded liability for retired and

retainer pay for military personnel who ser-

ved on active duty prior to 1985. Included in

the unfunded liability are the consolidated

requirements of the military departments to

cover: 1) retired officers and enlisted pers-

onnel of the Army, Navy, Marine Corps, and

5_/ Under regulations to be prescribed by the Secret-

ary of the Air Force, an enlisted member of the Air

Force who has at least 20, but less than 30, years

of service computed under section 8925 of this title

may, upon his request, be retired. A regular enli-

sted member then becomes a member of the Air Force

Reserve. A member retired under this section shall

perform such active duty as may be prescribed by law

until his service under section 8925 of this title,

plus his inactive service as a member of the Air

Force Reserves, equals 30 years.

App. D (Cont'd) 53a

Air Force; 2) retainer pay of enlisted per-

sonnel of the Fleet Reserve of the Navy and

Marine Corps; and 3) survivors benefits.

Payments may be made from the Fund for

“retired pay payable to persons on the ret-

ired lists of the Army, Navy, Air Force, and

Marine Corps." 10 U.S.C. § 1463(a)(1). 6 No

provision is made for disbursements from the

Fund for a spouses' community property claim.

6 / 10 U.S.C. § 1461(a): There is established on the

books of the Treasury a fund known as the Department

of Defense Military Retirement Fund (hereinafter in

this chapter referred to as the "Fund"), which shall

be administered by the Secretary of the Treasury.

The Fund shall be used for the accumlation of funds

in order to finance on an actuarially sound basis

liabilities of the Department of Defense under mil-

itary retirement and survivor benefit programs.

10 U.S.C. § 1463 Payments from the Fund

(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;

(2) retainer pay payable to member of the Fleet

Reserve and Fleet Marine Corps Reserve; and

(3) benefits payable under programs under the

jurisdiction of the Department of Defense that

provides annuities for survivors of members and

former members of the armed forces; including chapter

73 of this title, section 4 of Public Law 92-425, and

section 5 of Public Law 96-402.

(b) The assets of the Fund are hereby made available

for payments under subsection (a).

App. D (Cont'd) 54a

13. NO money shall be drawn from the Trea-

sury, but in consequence of appropriations

made by law. U.S.CONST., Art. I, § 9, cl. 7.

(footnote 7)

BASIS FOR CLAIMS

14. The divorce decree (Exhibit A) does not

qualify as a "court order" under the USFSPA.

(Note 3).

15. Plaintiff's pay is exempt from execu-

tion, garnishment, levy or seizure in satis-

faction of a community property claim.

16. Congress' declaration that the USFSPA

is to apply to events which occurred before

the effective date of the Act represents an

attempt to retroactively apply new statutory

language and to thereby annul a prior deci-

sion of the United States Supreme Court.

7/ No money shall be drawn from the Treasury, but

in Consequence of Appropriations made by law; and a

regular Statement and Account of the Receipts and

Expenditures of all public Money shall be published

from time to time.

App. D (Cont'd) 55a

This was an assumption, by Congress of a

court of last resort in contravention of the

principles of separation of powers.

17. Congress has acted in excess of its

authority by delegating to state courts the

authority to determine whether or not to

apportion retired pay as community property.

Mary Beth Goad does not "own" a portion

of Plaintiff's retired pay.

18. The "direct pay" procedures of the Air

Force has deprived Plaintiff of his pay

without due process of law.

19. The USFSPA is a special law enacted for

the avowed purpose of allowing former spouses

to receive court-awarded payments directly

from the military finance centers without

having to resort to periodic state garnish-

ment procedures and therefore violates the

equal protection of law as mandated by the

Fifth Amendment of the United States Const-

itution. [footnote 8 on next page]

OB Pome s

ee ee ee

App. D (Cont'd) 56a

UNTIL THE AIR FORCE HAS BEEN SERVED WITH

"LEGAL PROCESS" ISSUED BY A COURT OF COMP-

ETENT JURISDICTION, THERE EXISTS NO LAWFUL

AUTHORITY FOR THE GOVERNMENT TO PAY FUNDS

DIRECTLY TO MARY BETH GOAD OUT OF THE

DEPARTMENT OF DEFENSE MILITARY RETIREMENT

FUND.

RELIEF REQUESTED

20. Plaintiff requests an order from this

Court requiring the "Request For Former

Spouse Payments From Retired Pay" (Exhibit

B) to be quashed, dissolved and recalled.

21. Plaintiff requests judgment against the

United States and in favor of the Plaintiff

8 / No person shall be held to answer for a capital,

or otherwise infamous crime, unless 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 to

the same offense to be twice put in jeopardy of life

or limb; nor be deprived of life, liberty, or prop-

erty, without due process of law; nor shall private

property be taken for public use, without just

compensation. U.S. CONST., Amendment V.

App. D (Cont'd) 57a

for those amounts of his pay that have

been withheld since September 1, 1985 as

fully set out in Appendix F.

20. Plaintiff requests such other and

further relief which he may show himself

to be entitled.

Respectfully submitted.

January 22, 1990

(signed)

ROLAND L. GOAD, Plaintiff

(pro se)

310 Sara Lane

Huntsville, Texas 77340

(409) 291-2430

App. E 58a

Excerpts from Petitioner's brief in support

of summary judgment filed in the Claims

Court on March 23, 1990 showing the issues

presented to the Claims Court:

QUESTIONS PRESENTED

1. Does the anti-assignment statute [37

U.S.C. § 701(c)] remain valid notwithstand-

ing passage of the USFSPA purporting to

nullify its application to community prop-

erty claims?

2. Is Plaintiff's pay exempt from garnish-

ment for satisfaction of a community prop-

erty award?

3. Did the Texas divorce court have in rem

or guasi-in-rem jurisdiction over Plaintiff's

pay so as to be authorized to partition it as

community property?

4. Is military retired pay earned for perso-

nal services after divorce a part of the

"estate of the parties." ?

5. Does the USFSPA violate "due process of

law" by failing to provide any meaningful

forum for challenging its application to

App. E (Cont'd) 59a

Plaintiff's pay?

6. Does the USFSPA violate "equal protect-

ion under the law" by providing special

privileges to former spouses?

7. In the USFSPA, has Congress impermiss-

ibly delegated part of its legislative

power to State courts?

8. Does the 1980 divorce decree apportion-

ing "Air Force Retirement benefits" qualify

as a “court order" under the USFSPA?

App. F 60a

Excerpts from Petitioner's brief filed in

the Federal Circuit on March 2, 1992 stating

the issues presented for review on appeal:

THE STATEMENT OF THE ISSUES

[1] Section 1463(a)(1) of Title 10, United

States Code provides for a monthly payment

to Appellant out of the DOD Military Retire-

ment Fund. Does that statute provide the jur-

isdictional basis for an action in the

United States Claims Court for the recovery

of amounts of Appellant's salary withheld

Since September 1, 1985?

[2] The Claims Court dismissed Appellant's

Claims for failure to state a claim upon

which relief could be had and in doing so

made extensive use of the "administrative

record" submitted by the Government, but

declined to consider Appellant's motion for

Summary judgment or any of the material sub-

mitted in support of the motion. Was this

reversible error?

[3] Mary Beth Goad's ex parte application

App. F (Cont'd) 6la

for payments from Appellant's retired pay

was approved by the Air Force before Appel-

lant received his first notice that the app-

lication had been submitted. The procedures

established under the USFSPA do not provide

any opportunity for a hearing before approval

of such ex parte applications. Do these proc-

edures established under the USFSPA meet the

minimum requirements of "due process" under

the Fifth Amendment of the United States

Constitution?

[4] In respect to property awards, Section

1408(a)(2)(C) of Title 10, United States Code,

requires a "court order" to provide an amount

expressed in dollars or as a percentage of

"disposable retired pay." Does a 1980 decree

of divorce apportioning a fraction of "Air

Force Retirement benefits" satisfy this

requirement of a "court order"?

[5] Has the United States been served with

"legal process" issued by a "court of

App. F (Cont'd) 62a

competent jurisdiction" directed at Appell-

ant's "disposable retired pay" authorizing

it to withhold a portion of such pay under

the Uniformed Services Former Spouses' Pro-

tection Act?

[6] Did the Uniformed Services Former Spou-

ses' Protection Act (USFSPA) [10 U.D.cC. §

1408] amend, supersede, attenuate, or res-

cind the anti-assignment statute [37 U.S.C.

§ 701(c)] which provides that an enlisted

member of the Army, Navy, Air Force, or

Marine Corps may not assign his pay, and if

he does so, the assignment is void?

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