Amicus Curiae Brief — Adkins v. Gates (No. 06-1132)

&

FILED

MAY 15 2007

2) OFFICE OF THE CLERK

SUP ;

No. 06-1132 REME COURT, U.S._|

IN THE SUPREME COURT OF THE UNITED STATES

Tammy Adkins, et al.,

Petitioners,

v.

Robert M. Gates,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR GI-JANES

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JON SHELBURNE

Attorney of record

10 Metacom Ave.

Bristol, Rl 02809

(401) 254-4595

LARRY D. WHITE

On Brief

ODC PSC 90 Box 1540

APO AE 09822

(90) 505-2530950

QUESTION PRESENTED FOR REVIEW

Is the Uniformed Services Former Spouses’ Protection Act, 10

U.S.C. § 1408, unconstitutional, inasmuch as the statute (a) was

retroactively applied to those service members who entered the

armed forces prior to its enactment; (b) invidiously

discriminates between male and female veterans and their

former spouses; (c) contains garnishment mechanisms that do

not afford sufficient procedural due process to veterans; and (d)

has provisions that permit divorce courts of different

jurisdictions to treat veterans disparately?

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. .................... li

INTEREST OF THE AMICUS CURIAE J.......cccccscccccssececeecsees. ]

SUMMARY OF THE ARGUMENT......................cccccsescoeseees 3

pk 8 |. | ROD OR Ls SSR NEI nT OS eS OF Bele 4

A. The USFSPA Has Had A Disparate Impact on

Female Service Members in That It Provides No

Enforcement Mechanism for Service Members

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B. The Societal Circumstances That Created the Basis

for the USP sr A No Loneer EXttt.........ccascaccsevererseseseceses 5

C. It Is Essential to the Constitutional Concept

Of Common Defense That Service Members Be

Treated Equally By State Cowsts.......ccoccscevccssevvsrcessseses 8

D. USFSPA Is No Longer Needed to Protect

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CAP BAP Te bis indy connctan punnaseunedanvaatabedadanemaasmavtis 13

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TABLE OF AUTHORITIES

CASES

Flora v. Flora, 603 A.2d 723 (R.1.1992)

In re Stroup, No.D030869, 2003 Cal. App Unpub.

LEXIS 4687 (Cal. Ct. App. May 13, 2003)

International Shoe Co. v. Washington, 326 U.S. 310(1945)....9

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

Rice v. Rice, U.S. 336 U.S. 674 (1949)

Seeley v. Seeley, 690 S.W.2d 626 (Tx. Ct. App. 1985)

Southland Corp. v. Keating, 465 U.S. 1 (1984)

Thomas v. Chicago Park Dist., 534 U.S. 316 (2002)

CONSTITUTIONS, STATUTES AND RULES

U.S. CONSTITUTION

U.S. CONST. pmbl

U.S. CONnsT. art. I, § 8

U.S. CONST. amend. XIV

Titles 8, 17, 31, 35, and 39 of the U.S. Code

5 U.S.C. § 8432

Uniformed Services Former Spouse Protection Act

(USFSPA)

Be ee ah io0 Sivdde sing ucudeisadabunkhavasewces neste: 12

10 U.S.C. § 1408(c)(4)

10 U.S.C. § 1408(e)(4)(B)

10 U.S.C. § 1408 (h)

Vv

Bon aici oa 11

BOY See OAR: Ra Oicaten ivan vennshacsvsevassusesinssaciane 9

Pees Ps HTT PU, Gi GB apt sacar eesceeniensuisneen 10

Removal of Obsolete Regulations, 71 Fed. Reg. 49348,

PE FFs Be ici tianecicinpagnisiessiiciadeniignnsslaeiveta ieeeieuateeiell 6

Department of Defense Directive 1400.33, Employment

and Volunteer Work of Spouses of Military Personnel,

es ily, PE TIO is 0 5 Risiicecrscisindicincienivnammnicniciinns 6

Air Force Instruction 36-2406, Officer and Enlisted

Evaluation Systems, 15 April 2005..........:cssesucccseveceosvers 6

OTHER MATERIAL

MARK E. SULLIVAN, THE MILITARY DIVORCE HANDBOOK

Se Eh Sek si'on sou nada aneaawedneuerkiceydaie in weevil Gc eeal eben 8

Mei Fung Soo, J.D., Annotation, Propriety of Equalizing

Income of Spouses Through Alimony Awards,

Fe Fie AUT EN Tie 0c 60:4 ésircevnesnsvsenveivenrmnyiveninecauania 11

National Coalition Against Domestic Violence,

EI FE asin side vescas vic ccascissenersdsessstpeews 5

Vi

Thomas R. Trenkner, J.D., Annotation, Modern Status

of Maternal Preference Rule or Presumption in Child

Custody Cases, 70 A.L.R.3d 262 (2007)............:cceeeeeee eee 4

16 JAMES WM. MOORE ET AL, MOORE’S FEDERAL PRACTICE

OUT a ah OU io os cece eccdssecseorsmccunen 10

LORY MANNING, WOMEN’S RESEARCH & EDUCATION

INSTITUTE, WOMEN IN THE MILITARY; WHERE THEY

I Oe alu ciccnsecinbhin ek nranieetauel 7

MARSHA L. THOLE & FRANK W. AULT, DIVORCE AND

THE MILITARY II: A COMPREHENSIVE GUIDE FOR SERVICE

MEMBERS, SPOUSES, AND ATTORNEYS (1998)................06. 6

OFFICE OF THE UNDERSECRETARY OF DEFENSE FOR PERSONNEL

AND READINESS, MILITARY PERSONNEL HUMAN RESOURCES

STRATEGIC PLAN (CHANGE 1) (2002).............cccceeeseseeeeees 6

INTEREST OF AMICUS CURIAE!

The GI-JANES (Get Involved — Join Against Never-

ending Ex-spouse Support) is an organization composed of

women dedicated to the revocation of the Uniformed Services

Former Spouses Protection Act of 1982 (10 U.S.C. § 1408).

The group consists mainly of female active duty, reserve, and

retired service members of the Army, Navy, Air Force, Marine

Corps and Coast Guard who are either divorced or in the process

of a divorce and are affected by this statute. Other members

include women, who are ex-spouses, entitled to a portion of the

retired pay of a former military spouse but who have waived

such a payment on moral grounds. Also, included are “second

wives” — those women marmied to active military personnel or

military retirees who are denied the benefits of being a part of

the military family that are available to a “‘first” wife.

The members of the Armed Services of the United States

are honored to serve the nation. As aresult of such service, they

endure years of hardship, often involving deployment to remote

locations separated from the comforts of home, friends and

family. These places may be austere, temporary locations with

the daily threat of enemy attack. A compelling motivation

during such times is the promise that at the end of that service,

they will have the opportunity to continue to serve the nation as

members of the retired reserve, waiting to be called again in

defense of America, but with the opportunity to pursue their

' Counsel for amicus curiae authored this brief in whole and no other

person or entity, other than the amicus curiae, its members, or its counsel,

made a monetary contribution to the preparation or submission of this

bnef.

2

personal dreams as had necessarily been put on hold to serve.

Service members are all volunteers who serve in various

locations around the world, both overseas and within the borders

of the United States, as the needs of Armed Services dictate. As

such, members do not ultimately control where they are

assigned, but may be sent involuntarily to various states and

nations. Therefore, service members depend upon the federal

government to protect them from inappropriate, arbitrary and

inconsistent use of powers by the states and nations. Since only

approximately 1% of the population serves in the military, when

discriminated against these citizens have no strength in numbers

to have enough political clout to protect themselves. Although

in federal service, service members stil] desire to exercise their

rights as members of society to drive automobiles, vote in

federal elections, and marry—all actions that fall primarily to

the states under the American system of government—but in

which the federal government has a vested interest and

Constitutional obligation to protect service members.

The American Armed Forces are one of the greatest

equalizers, with equal opportunity assured for all based on law,

custom and practice. As a result, the Armed Forces continue to

attract volunteers of all races, heritage, and gender. The special

opportunity for female service members to be mothers as well as

soldiers, sailors, marines, airmen and coastguardsmen is perhaps

the most salient example of the commitment of the Armed

Forces to equal opportunity.

All citizens of the United States must be citizens of a

state to be full members of American society. Service members

are no exception. However, as a result of actions taken in

furtherance of federal service, they can be subject to the

jurisdiction of courts of states other than those of their legal

residence. A central premise to the concept of a federal! military

3

is that there cannot be significant differences in the treatment of

service members between states in matters that interfere with the

concept of federal control of the military.

This Court recognized the strong federal interests in the

military retirement system in its decision of McCarty v.

McCarty, 453 U.S. 210 (1981), holding that the military

retirement pay could not be divided by state courts. In response,

Congress passed the Uniformed Services Former Spouses

Protection Act (USFSPA), retroactive to the McCarty decision,

to allow state courts to divide the military retirement/retainer

pay in a divorce. This case challenges the USFSPA as not

providing sufficient protection for service members, and

particularly female service members, in the event of a divorce.

Amicus GJ-JANES accepts the factual basis in the

appellant’s petition and hereby incorporate these facts by

reference. Both parties have consented to submission of this

brief.

REASONS FOR GRANTING THE PETITION

SUMMARY OF THE ARGUMENT

This Court has, over the years, helped shape the

characterization of the military retirement system. There can be

no doubt as to the substantial federal interest in the fairness and

operation of the military retirement system. Therefore, when

federal legislation allows state courts to divide military

retirement pay during a divorce, but does not ensure that the

federal interests and Constitutional rights of the service

members are properly protected, such legislation must fail.

4

ARGUMENT

A. The USFSPA Has Had A Disparate Impact on Female

Service Members In That It Provides No Enforcement

Mechanism for Service Members Who Are Custodial

Mothers.

The USFSPA is biased against service members in the

enforcement of child support and support for spousal abuse.

Additionally, the fact that these constitutionally-fatal flaws

affect female service members more often than males should

result in the Court’s review of this case.

USFSPA specifies that the service member may have a

maximum of 65% of retired pay distributed directly by the

military finance center to a former spouse through a

combination of division of retired pay and child support. 10

U.S.C. § 1408e(4)(B). However, there is no provision for the

former spouse’s share to be reduced by child support, so the

service member is forced to seek enforcement through other

means. This discriminates against service members in favor of

the former spouses in general, and since mothers consistently

reccive custody of children in a divorce at a higher rate than

fathers, See Thomas R. Trenkner, J.D., Annotation, Modern

Status of Maternal Preference Rule or Presumption in Child

Custody Cases, 70 A.L.R.3d 262 (2007), female military

members are disparately burdened by this discrepancy.

The second area of discrimination is even more

disturbing. Since passage of the National Defense

Authorization Act for Fiscal Year 1993’, the entitlement to a

portion of the retirement/retainer pay of a former spouse abused

by a servicemember is protected. 10 U.S.C. § 1408(h).

? Pub. L. 102-484, 106 Stat. 2426

5

However, the reverse is not true; when state courts can and do

award a portion of the retirement/retainer pay to the abusive

former spouse, this only intensifies and prolongs the agony of

the abused service member. Since abuse victims are

predominately women, National Coalition Against Domestic

Violence, Domestic Violence Facts, at

http://www.ncadv.org/files/DV_Facts.pdf, this discriminatory

treatment harms service members in general and therefore also

has a disparate impact on women.

Since both these discriminatory omissions have no

discernable or logical rational basis, the discrimination is

unconstitutional, without even considering the higher

intermediate standard that should be applied to the disparate

impact on women,

B. The Societal Circumstances That Created the Basis for

the USFSPA No Longer Exist.

The USFSPA was enacted in response to this Court’s

decision in McCarty. The language indicates that wives of

military men were the target group for protection since the

expectation was that they, especially at senior levels, were to

support their husband’s career, often at the expense of their

own. See S. REP. NO. 97-502 (1982) as reprinted in 1982

U.S.C.C.A.N. 1596. However, there has been a drastic shift in

this norm in two respects: the support for careers of military

spouses and the advent of women in the Armed Forces.

The USFSPA was designed to remedy the situation of a

former spouse who had sacrificed her career for that of her

husband under the assumption that the military required the

spouse to support the military member’s career. This situation

was recognized and remedied by Congress in the Defense

6

Authorization Act for Fiscal Years 1988 and 1989.° Asa result,

the nght of military spouses to have careers was established as

Department of Defense policy. Department of Defense

Directive 1400.33, Employment and Volunteer Work of

Spouses of Military Personnel, Feb. 10, 1988. However, this

document was suspended in a routine revision of directives

because it was obsolete, Removal of Obsolete Regulations, 71

Fed. Red. 49348, Aug. 23, 2006, indicating the changing

attitudes towards working spouses. Although hearings prior to

passage of the USFSPA included comments on officer

evaluations regarding comments about the wife’s support of the

military man’s career, such comments are prohibited by the

Armed Forces (see, e.g. Air Force Instruction 36-2406, Officer

and Enlisted Evaluation Systems, 15 April 2005), and have been

since 1988, so no longer can the wife’s support be regarded as

directly supporting or hindering the military man’s career. At

the present time, it is estimated that 70% of military spouses

work, OFFICE OF THE UNDERSECRETARY OF DEFENSE FOR

PERSONNEL AND READINESS, MILITARY PERSONNEL HUMAN

RESOURCES STRATEGIC PLAN (CHANGE 1) (2002), in contrast to

the orginal 1982 testimony before Congress portraying the

typical spouse at that time as a nonworking wife who devoted

her full time to her husband and family. MARSHA L. THOLE &

FRANK W. AULT, DIVORCE AND THE MILITARY II: A

COMPREHENSIVE GUIDE FOR SERVICE MEMBERS, SPOUSES, AND

ATTORNEYS (1998). So the need for such special protection no

longer exists.

In addition to the shift from non-working to working

spouses, the demographics of the Armed Forces have changed

as well. This change was already taking shape at the time

> Pub. L. 100-180, Sec 637

4

USFSPA was passed by Congress. The numbers of women on

active duty in the Armed Forces was already on the nse and had

risen from 1.6% in 1973 to just less than 9% by 1982.

Additionally, 1980 was historic in that it was the first year that

women graduated from all four of the Service Academies. Asa

result, today women compose | 1.5-12% of senior officers at the

rank of colonel/captain (grade of 06) in the Army, Air Force

and Navy in contrast to composing less than 2% of that rank for

all Services in the early 1980’s. Similar such increases have

occurred since 1982 in the senior enlisted ranks of E7-E9 for all

of the Services. Today, women compose approximately 17%

of the Armed Forces, with the Army, Air Force and Navy

Reserves each composed of over 20% of women. LORY

MANNING, WOMEN’S RESEARCH & EDUCATION INSTITUTE,

WOMEN IN THE MILITARY; WHERE THEY STAND (5" ed. 2005).

As such, historic assumptions about divorce for the protection of

women are not only constitutionally suspect but also inaccurate.

Military marriages today include substantial numbers of female

service members married to civilian males. Divorce results in

many of these military women being forced to forfeit large

portions of their retirement pay for the rest of their lives to ex-

husbands who have successful careers and often are earning

substantially more than the these women are earning.

Since the USFSPA reflects historical assumptions that

do not hold true today, the law—as the only federal divorce law

in existence--is an anachronism that is not reflective of a society

evolving to show greater opportunity for women. Therefore, the

USFSPA as written disparately restricts the rights of service

women and should be reviewed by the Court.

8

C. It Is Essential To The Constitutional Concept Of

Common Defense That Service Members Be Treated

Equally By State Courts.

One of the basic foundations of the Constitution is the

need for a common defense. US Const. pmbl. This purpose

carries through the provisions addressing defense in the powers

of Congress. U.S. Const. art. I, § 8. Just as the Court has

broadly applied the “time, manner, place” provisions of the

Elections Clause in Section 4 of Article 1, see e.g. Thomas v.

Chicago Park Dist., 534 U.S. 316 (2002), the need for a

“common” defense should be broadly applied to include a

common application of the rules applicable to military

personnel. This would be consistent with the application of

other provisions in the same section where the Court and

Congress have ensured uniform application through the US. for

those provisions. For example, the rules for naturalization,

copyrights, money, patents, and the post office, are all controlled

by federal law (Titles 8, 17, 31, 35, and 39 of the U.S. Code,

respectively) and the regulation of interstate commerce is the

construction of the Courts. See Southland Corp. v. Keating, 465

U.S. 1 (1984).

The current system for division of military retirement

under the provisions of 10 U.S.C. § 1408 begs for such

standardization. There are fifty different standards for dealing

with military retirement / retainer pay. MARK E. SULLIVAN, THE

MILITARY DIVORCE HANDBOOK 430 (2006). One particular area

of uneven interpretation and application is with regards to the

jurisdiction of state courts. With the advent of the current no-

fault divorce system, subject matter jurisdiction for state courts

vests in as little as six weeks. See, e.g. NEV. REV. STAT. §

125.020 (2006). In recognition of this fact, Congress stipulated

that state court orders dividing military pay could only be

9

recognized if the court had jurisdiction over the service member

either through residence, domicile or consent of the service

member. 10 U.S.C. § 1408c(4). Although the criteria of

domicile and residence have a solid history of application and

acceptance, the criteria of consent of the service member has

been subject to two schools of thought: (1) either consent must

be specific to the division of military pay or (2) that any

response to the suit subjects the military member to the court—

even a suit where there would be lack of personal jurisdiction

under this Court’s sufficient contacts test. See /nternational

Shoe Co. v. Washington, 326 U.S. 310 (1945). State courts have

split on this question, finding both the former, see, e.g. Flora v.

Flora, 603 A.2d 723 (R.I. 1992), and the latter, see Seeley v.

Seeley, 690 S.W.2d 626 (Tx. Ct. App. 1985). This has been best

phrased by a California judge in an unpublished opinion — “In

order for a court to obtain jurisdiction to divide a pension by

way of consent, it makes sense that such consent should be to

the division itself, and not to some ancillary matter.” Jn re

Stroup, No.D030869, 2003 Cal. App Unpub. LEXIS 4687 at *4

(Cal. Ct. App. May 13, 2003). Such a major split in

interpretation of this statute should be sufficient to compel

review by this court.

There are two general aspects of the divorce case — the

family issues and the property issues. With regards to the

divorce issues, the no-fault system was designed to facilitate the

resolution of family matters, and as a policy, to facilitate the

resolution of issues relating to minor children. However,

children issues are not permanent and can be adjusted to

changing circumstances whereas property issues are resolved

once and not addressed again. See, e.g. N.H. REV. STAT. ANN.

Ch. 458.

As a result, there is both a public policy reason and a

‘are in ~ ae

10

philosophical reason to treat these differently. From a public

policy point of view, it is desirable to simplify resolution of

child support and child custody issues in order to mitigate the

impact of divorce on any minor children. Therefore,

participation of both parties is desirable. | However,

constitutional restrictions on state powers limit the ability of

states to interfere with the rights of citizens of other states. See

U.S. CONST. amend. XIV. It has been long recognized that out-

of-state residents should have access to federal courts to ensure

a fair hearing on issues in another state. See 16 JAMES WM.

MOORE ET AL, MOORE’S FEDERAL PRACTICE §107.03 (3rd ed.

1997). Therefore, to ensure this type of fairness for service

members within the reach of a state court due to their military

service, this protection should be afforded to them as well.

It has also been long established by this court that state

courts may be limited in their rulings in divorce proceedings.

The concept of a “divisible divorce” recognizes that a court has

only the power to divide the property under its control. See Rice

v. Rice, 336 U.S. 674 (1949). The USFSPA did nothing to

change this but in fact emphasized this fact by stressing the

necessary jurisdiction, 10 U.S.C. § 1408c(4), but provides no

enforcement mechanism to protect the rights of service

members.

Since the passage of the USFSPA, Congress has acted to

ensure the uniform rights and standards in traditional areas of

state control that affect service members — driver’s licenses,

voting and marriage. For example, Congress has enacted the

REAL ID Act of 2005* that set standards for state drivers’

licenses, the Help America Vote Act of 2002° to ensure the

voting rights of service members, and the Defense of Marriage

* Pub. L. 109-13, 119 Stat 231

* Pub. L. 107-252, 116 Stat. 1666

1]

Act® to provide uniformity in marriage across the fifty states.

As such, Congress has signaled an intent that traditional areas of

states nghts are subject to federal standardization when

substantial federal interests are involved. Disparities under the

USFSPA contravene this recent trend.

If the lower court ruling stands, even the out-of-state

military member or retiree will have to rely on the courts in the

state where the spouse desires a divorce to balance these

important state and federal concerns.

D. USFSPA Is No Longer Needed To Protect The Rights Of

Former Spouses.

If this Court were to grant the petition and later strike

down the USFSPA, states would still retain the ability to protect

former spouses with a structure of alimony and divison of a

pension-like system now. Unlike the divison of military pay

which is for life, alimony is provided under state laws in limited

circumstances and duration that emphasize equitability. Mei

Fung Soo, J.D., Annotation, Propriety of Equalizing Income of

Spouses Through Alimony Awards, 102 A.L.R.Sth 395 (2007).

The former spouse also retains any rights to Social Security

provided under the military member’s creditable work if the

spouse would have a smaller claim based on her/his own work

history. See 42 U.S.C. § 402(b). Since the USFSPA was

enacted, Congress has allowed military members to participate

in the federal Thnft Savings Program (TSP) that functions as a

retirement plan. See 5 U.S.C. § 8432b. Unlike the military

retirement/retainer pay, which is subject to very special

considerations, see 10 U.S.C. § 1408(c)(2), TSP is similar to

© Pub. L. 104-199, 110 Stat. 2419

12

other retirement plans that have a cash value that can be

determined and divided by a state court so that the former

spouse can be equitably compensated without the concerns

raised by the Court in McCarty nor the special conditions

recognized by Congress in the USFSPA.

Therefore, if the Court grants the petition, hears the case

and strikes down the statute, former spouses will still have

adequate protection through resources that would still be

available for state court division and will not be “thrown to the

wolves.”

13

CONCLUSION

When Congress passed the USFSPA as a rejection of this

Court’s sound logic in the McCarty decision, they failed to

provide adequate protection for service members operating

under the U.S. Constitution, with a hugely disparate impact on

female service members, especially those who are mothers.

Therefore, in this light, the petition should be granted for a

review of the USFSPA by the Court.

Respectfully submitted,

JON SHELBURNE

Attorney of record

10 Metacom Ave.

Bristol, RI 02809

(401) 254-4595

LARRY D. WHITE

On Brief

ODC PSC 90 Box 1540

APO AE 09822

(90) 505-2530950

Attorneys for Amicus

May 14, 2007