A federal judge has dismissed a lawsuit brought by 58 divorced service members and retirees challenging the constitutionality of the Uniformed Services Former Spouses Protection Act. The 1982 law allows state courts to divide military pensions as property in divorce settlements.
U.S. District Court Judge James Cacheris in Alexandria, Va., granted government motions Oct. 12 to dismiss Adkins, et al. v. Rumsfeld and all claims brought by individual plaintiffs and by the USFSPA Litigation Support Group, a nonprofit support group established to raise legal fees for a court challenge.
In a 15-page opinion, Cacheris said his federal court, the U.S. Eastern District of Virginia, lacked subject matter jurisdiction to hear the case, and the plaintiffs lacked legal standing to bring their lawsuit.
Cacheris also ruled that, because the legal challenges could have been raised in state courts when the original divorce and property issues were being settled, a legal principle of res judicata applies. In Latin that means “the thing has been judged” and therefore a new case is useless.
Lawyers for the divorced service members and retirees have filed a motion for reconsideration. They also announced plans to appeal to the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.
Cacheris agreed with U.S. Attorney Paul McNulty that the court doesn’t need to weigh the merit of the constitutional challenges to the Uniformed Services Former Spouses Protection Act. He had to dismiss the case based Supreme Court rulings that bar federal courts from nullifying state judgments on issues that could have been raised before a state court. This Rooker-Feldman doctrine has been used by other federal courts to dismiss other challenges to the act.
The judge said he assumed the service member plaintiffs and retirees had “participated in their divorce proceedings,” learned the result and had “a reasonable opportunity to raise their federal claims in state court.”
He also accepted the government’s charge that the Litigation Support Group lacks “organizational standing” to allege injury. The complaint, he wrote, doesn’t explain who the group’s members are or whether they would have standing to sue in their own right.
Stop-loss suit – A different team of lawyers in San Francisco has switched plaintiffs in their legal challenge to Army “stop loss” orders that are keeping thousands of soldiers on active duty to serve in Iraq and Afghanistan.
“John Doe,” an unnamed National Guardsman from California, dismissed his lawsuit against the Army after he was released from active duty this month.
Now, a second California National Guardsman, “John Doe II,” has filed a new lawsuit against the Army’s stop-loss policy. The circumstances are similar and the legal arguments are largely the same.
Current stop-loss authority flows from President Bush’s Sept. 14, 2001, executive order authorizing a Ready Reserve call-up to respond to “the continuing and immediate threat of further terrorist attacks on the United States.”
Like Doe I, the veterans enlisted in the Guard for one year under the “Try One” program. Doe I’s enlistment was to expire in April, but in September he received mobilization orders for Iraq and an extra year of service. Doe II sought a restraining order to stop his deployment to Fort Lewis for training for Iraq. It was denied. His transportation unit is at Fort Lewis now and is expected to leave for Iraq in late November.
To comment, write Military Update, P.O. Box 231111, Centreville, VA, 20120-1111, e-mail milupdate@aol.com or go to www.militaryupdate.com.
Talk to us
> Give us your news tips.
> Send us a letter to the editor.
> More Herald contact information.
