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Divorcees make constitutional challenge

Lawyers for divorced service members and retirees have filed a weighty constitutional challenge to the Uniformed Services Former Spouses Protection Act, charging widespread violations of “due process” and “equal protection” rights in the way the law is written and enforced.

What might be described as the legal muscle behind the lawsuit became apparent last week with the filing of a 50-page brief opposing the government’s own lengthy motion to dismiss the case.

The plaintiffs in Adkins, et al v. Rumsfeld are 58 divorced service members and retirees, and a limited-liability corporation, ULSG, which is raising money for legal fees. Their target is the USFSPA, a 1982 law that allows state courts to divide military retirement in divorce settlements.

The lawsuit is before the U.S. District Court for Eastern District of Virginia, which has scheduled a Sept. 13 hearing in Alexandria.

The lawsuit does not seek monetary damages nor ask the court to “retrospectively affect or undo” divorce agreements or property settlements entered into by plaintiffs or other veterans.

But it asks the court to declare various provisions of USFSPA unconstitutional and to order changes that would eliminate errors and ambiguities, improve procedural safeguards and put an end to “widely divergent interpretations” of the law by state courts.

The government’s motion to dismiss, filed by U.S. Attorney Paul J. McNulty on July 9, claims that no argument on behalf of plaintiffs regarding violation of constitutional guarantees has merit. But, it adds, the court need not consider constitutional challenges. It simply should dismiss the case for lack of subject-matter jurisdiction, given Supreme Court rulings in 1923 and 1983 that bar federal courts from nullifying state judgments on issues that could have been raised at state court level.

This so-called Rooker-Feldman doctrine, the government says, has been used by other federal courts to dismiss other constitutional challenges to the USFSPA.

“It is simply beyond question that the facts presented to the Eleventh Circuit (in a 1996 case) are the exact facts presented to this court,” the government contends. That 1996 case was dismissed for lack of jurisdiction.

Plaintiffs argue there are exceptions to Rooker-Feldman that apply in this case, where alleged “constitutional infirmities” of the USFSPA “are not ones that could have, or should have, been raised” in state court.

Lawyers for the divorced members in April had made four broad arguments for the court to find the law unconstitutional: it wrongly was applied retroactively to members retired or even in service before it took effect; it provides inadequate procedural protections against illegal taking of retired pay; it differs prejudicially from laws that govern other federal pensions in divorce; it is not applied with uniformity by state courts. Therefore, USFSPA violates guarantees of due process and equal protection.

The brief filed Tuesday fleshes out the arguments of rights violated and highlights with more detail the disparities in treatment by courts and weaknesses in bureaucratic safeguards for divorced members.

Those weaknesses include allowing garnishment of retired pay “upon the mere presentation” to finance centers of a court order that the law says must only “appear regular on its face.”

The lawsuit contends that members aren’t given sufficient notice or opportunity to be heard, and there’s no provision to recoup retired pay improperly paid or withheld.

The lawsuit describes “a startling degree of dysfunction in a statute that is suppose to have uniform effect throughout the nation.”

That lack of uniformity is seen in the way state courts claim jurisdiction over members; treat the law’ s 50-percent cap disbursements of “disposable” retired pay; protect or divide disability benefits, and calculate ex-spouse shares using either retirement on date of divorce or date of retirement. State courts also differ on whether to force members to be retired in order for a spouse to share in that benefit, the lawsuit contends.

The government counters that Congress has authority to decide what laws the states need to apply with uniformity to protect national security.

Tom Philpott can be contacted at Military Update, P.O. Box 231111, Centreville, Va. 20120-1111, or by e-mail at:

[email protected]