Military Update: Federal judge dismisses divorcees' suit
A federal judge has dismissed a lawsuit brought by 58 divorced servicemembers and retirees challenging the constitutionality of the Uniformed Services Former Spouses Protection Act. The 1982 law allows state courts to divide military retirement as property in divorce settlements.
U.S. District Court Judge James C. 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 ULSG, a nonprofit support group established to raise legal fees for the court challenge.
In a 15-page opinion, Cacheris said the federal court, for 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 servicemembers and retirees have filed a motion for reconsideration. They also announced plans to appeal to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
Judge Cacheris agreed with U.S. Attorney Paul J. McNulty that the court doesn’t need to weigh the merit of the constitutional challenges to the USFSPA. He had to dismiss the case based on Supreme Court rulings that bar federal courts from nullifying state judgments on issues that could have been raised before state court. This Rooker-Feldman doctrine has been used by other federal courts to dismiss other challenges to the USFSPA.
The judge said he assumed the servicemember 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 ULSG (USFSPA Litigation Support Group) lacks “organizational standing” to allege injury. The complaint, he wrote, doesn’t explain who the ULSG members are or whether they “would have standing to sue in their own right.”
Cacheris didn’t address arguments from plaintiffs that the USFSPA is unconstitutional because: it is applied retroactively to members who entered service before the law took effect; it provides inadequate procedural protections; it differs from laws that govern other federal pensions in divorce; and state court don’t enforced it with uniformity.
In its motion to Cacheris to reconsider, ULSG argues that some legal flaws of the USFSPA aren’t “ripe” to be challenged in state courts at time of divorce because the harmful effects don’t occur until servicemembers retire and the Defense Finance and Accounting Service begins to divide retired pay.
A different team of lawyers, in San Francisco, has switched plaintiffs in their legal challenge to Army stop-loss orders that keep thousands of soldiers on active duty to serve in Iraq and Afghanistan.
“John Doe,” an unnamed National Guardsman in California, dismissed his lawsuit against the Army after he was released from active duty this month. One of his lawyers, Joshua Sondheimer, said Guard policy requires that soldiers who do not deploy be relieved of the stop-loss order 90 days after the unit is alerted for mobilization. He had stayed behind for medical reasons, the Army said. His lawyers earlier had said the pending lawsuit prevented the deployment.
Now a second California Guardsman, “John Doe II,” has filed a lawsuit against Army stop loss. The circumstances are similar and the legal arguments are largely the same.
Current stop-loss authority, said Sondheimer, 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.”
Without evidence the U.S. occupation of Iraq is protecting America from terrorism, the Army has no legal basis to use stop loss to keep Doe II on active duty involuntarily, Sondheimer said.
Like Doe I, the veterans enlisted in the Guard for just one year under the “Try One” program. His enlistment was to expire next April, but last month he received mobilization orders for Iraq and an extra year of service. Doe II, who also has two children, sought a restraining order to stop his deployment to Fort Lewis, Wash., for training for Iraq. It was denied. His transportation unit is there now and expected to leave for Iraq in late November. A U.S. district court judge in Sacramento will hear arguments Nov. 5 on whether Doe II can escape stop loss and his second combat tour in the Middle East.
Forty-eight servicemembers have taken their own lives while deployed to Iraqi, Afghanistan and Kuwait since 9/11, and another 31 veterans of those wars have committed suicide stateside, according to statistics released at the third annual Military Suicide Prevention Conference, in Arlington, Va., in late October.
The suicide rate is still lower than for the U.S. population, adjusting for age and gender, but above service averages, particularly for the Army.
Experts point to the high stress of long, dangerous deployments, combined with “triggering” factors such a failing relationship and financial or legal problems. Another factor, in theater, is ready access to weapons. Almost all of the in-theater suicides have been by gunshot.
At the conference, counselors, chaplains, health professionals and unit suicide prevention officers received training to help recognize at-risk members and provide timely intervention. Defense officials also urged the services to standardize data collection methods to allow more effective evaluation of what prevention efforts work best.
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