Military Update: USFSPA challenged by servicemembers
July 31, 2004
Lawyers for divorced servicemembers and retirees have filed a 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 Tuesday 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 servicemembers 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.
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 “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.
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