Goad v. US, Civ. A. No. H-86-3432.

• Decision Date: 05 June 1987
• Docket Number: Civ. A. No. H-86-3432.
• Citation: 661 F. Supp. 1073
• Parties: Roland Lee GOAD, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

661 F. Supp. 1073

Roland Lee GOAD, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. H-86-3432.

United States District Court, S.D. Texas, Houston Division.

June 5, 1987.

COPYRIGHT MATERIAL OMITTED

Roland L. Goad, Huntsville, Tex., pro se.

Henry K. Oncken, U.S. Atty., Hays Jenkins, Jr., Asst. U.S. Atty., Houston, Tex., for defendant; Marilyn D. Barton, Major, USAF, Office of the Judge Advocate General, Washington, D.C., of counsel.

MEMORANDUM OPINION AND ORDER

HITTNER, District Judge.

Pending before this Court is defendant United States of America's Motion to Dismiss or, in the Alternative, for Summary Judgment.¹ This Court heard oral argument on that motion on April 13, 1987. Having considered the motion, the submissions of the parties, the argument of Plaintiff and of counsel for Defendant, and the applicable law, the Court is of the opinion that Defendant's motion should be granted and this action should be dismissed.

FACTUAL BACKGROUND

In 1980, after thirty years of marriage, Plaintiff Roland Lee Goad and his wife, Mary Beth, were divorced. Pursuant to the divorce decree, Mrs. Goad was granted twelve twenty-sevenths of Mr. Goad's Air Force retirement pay. Mr. Goad refused to pay Mrs. Goad the required fraction of his retirement pay, was jailed for contempt, and was ordered to pay Mrs. Goad $30,099.42 in past-due amounts.

In 1982, Congress passed the Uniformed Services Former Spouses' Protection Act (FSPA), 10 U.S.C. § 1408 (Supp.1985). This act was passed primarily to remedy the inequitable result of the United States Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The Court in McCarty had held that military retirement pay was not divisible community property because to allow division and partial grant to a spouse contravened Congress's intention that military retired pay "actually reach the beneficiary." Id. at 229-30, 101 S.Ct. at 2739-40. The FSPA overrides such an interpretation by permitting the government to honor state court orders granting a portion of military retirement benefits to former spouses of military men. The FSPA also permits, under certain circumstances, the withholding of the court-ordered amount and the direct transmittal to the former spouse. 10 U.S.C. § 1408(d) (Supp.1985).

In June, 1985, Mrs. Goad applied for withholding of funds pursuant to the FSPA. The Air Force Accounting and Finance Center (AFAFC) notified Plaintiff of Mrs. Goad's application. Plaintiff directed two letters of objection to the AFAFC. Finding no merit to Plaintiff's objections, the AFAFC began withholding twelve twenty-sevenths of Plaintiff's retirement pay for Mrs. Goad's benefit in September, 1985.

In December, 1985, Plaintiff requested the AFAFC to reconsider its decision. After considering Plaintiff's argument, the AFAFC denied Plaintiff's request. Following that rejection, Plaintiff brought this pro se lawsuit.

Defendant United States of America has filed the motion which is the subject of this Order, urging dismissal for lack of subject matter jurisdiction and because Plaintiff has failed to state a claim upon which relief can be had.

SUBJECT MATTER JURISDICTION

Mr. Goad's action for monetary relief must be dismissed because this Court lacks subject matter jurisdiction under the Tucker Act. The Tucker Act grants concurrent jurisdiction to the district courts and the United States Claims Court over nontort claims against the United States for damages "not exceeding $10,000 in amount." 28 U.S.C. § 1346(a)(2) (1982). Claims in excess of $10,000 are within the exclusive jurisdiction of the Court of Claims. Graham v. Henegar, 640 F.2d 732, 734-35 (5th Cir.1981). The amount withheld from Plaintiff's retirement pay, which Plaintiff seeks to recover, is now in excess of $10,000. See Plaintiff's proposed First Amended Complaint.

Plaintiff asserts that this Court retains jurisdiction because he is making a separate claim for each month's pay that has been transferred to his former wife. These claims, Plaintiff contends, cannot be aggregated to deprive the district court of jurisdiction. Plaintiff cites in support of his position Baker v. United States, 722 F.2d 517, 518 (9th Cir.1983); March v. United States, 506 F.2d 1306, 1309 n. 1 (D.C.Cir. 1974); A.C. Davenport & Son v. United States, 538 F.Supp. 730, 732 (N.D.Ill.1982), aff'd, 703 F.2d 266 (7th Cir.1983); and Fitzgerald v. Staats, 429 F.Supp. 933, 934-35 (D.D.C.1977), aff'd, 578 F.2d 435 (D.C. Cir.), cert. denied, 439 U.S. 1004, 99 S.Ct. 616, 58 L.Ed.2d 680 (1978). None of these cases is applicable to the facts of Plaintiff's suit. Baker and March involved the suits of various plaintiffs, none of whose individual claims exceeded $10,000. In A.C. Davenport & Son and Fitzgerald, each Plaintiff asserted more than one distinct cause of action, neither of which exceeded $10,000. In the instant case, Mr. Goad, the sole Plaintiff in this action, asserts only a single claim, one for recovery of the money withheld from his retirement pay. He admits that this amount now exceeds $10,000. Plaintiff cannot avoid the exclusive jurisdiction of the Claims Court by characterization of each month's withholding as a separate cause of action.

Although Plaintiff seeks monetary damages within the exclusive jurisdiction of the Court of Claims, this Court declines to transfer this action pursuant to 28 U.S.C. § 1631 because to do so would not be in the interest of justice. The government cannot be held liable for making payments under the FSPA pursuant to a court order that is regular on its face. United States v. Morton, 467 U.S. 822, 836, 104 S.Ct. 2769, 2777, 81 L.Ed.2d 680 (1984); Steel v. United States, No. 421-85C (Cl.Ct. September 12, 1986). Plaintiff has neither alleged nor shown that the court order his former wife presented to the Air Force was not regular on its face. Thus, even were the Court to transfer Plaintiff's action, Plaintiff would not be entitled to a monetary recovery from Defendant. It is, therefore, not in the interest of justice to subject the government and the Court of Claims to further expense and labor in defending against and hearing this case.

To the extent that Plaintiff seeks declaratory relief that the AFAFC's direct payments to Mrs. Goad violate statutes and the Texas and United States Constitutions, this Court has subject matter jurisdiction over Plaintiff's claims. 28 U.S.C. § 2201 (Supp.1985). However, the Court has determined that each of Plaintiff's claims must be dismissed.

PLAINTIFF'S CLAIMS

Plaintiff's complaint purports to assert the following causes of action:

1. The AFAFC's direct payments to Mary Beth Goad are in violation of the FSPA.

2. The AFAFC's direct payments to Mary Beth Goad are prohibited by the Texas Constitution.

3. The AFAFC's direct payments to Mary Beth Goad are in violation of the Consumer Protection Act.

4. The AFAFC's direct payments to Mary Beth Goad are in violation of 37 U.S.C. § 701(e).

5. The FSPA is unconstitutional because it deprives Plaintiff of due process and equal protection.

6. The Goad's divorce decree was invalidated by the McCarty decision and cannot be resuscitated by the FSPA.

7. The FSPA is unconstitutional because it impermissibly delegates legislative power to the states.

1. Plaintiff asserts that the AFAFC's direct payments to Mrs. Goad violate the FSPA. Plaintiff bases this assertion on the remarkable premise that the Goads' divorce decree does not qualify as a "court order" that can be honored pursuant to the FSPA because it refers to military "benefits" rather than military "pay."

Plaintiff's argument is patently frivolous. Plaintiff originally posed this argument to the AFAFC in his initial objection to direct payments to Mrs. Goad. The AFAFC advised Plaintiff at that time, and this Court reiterates, that Texas state law and the federal courts use the terms "benefits" and "pay" interchangeably. See Brown v. Robertson, 606 F.Supp. 494, 496-97 (W.D.Tex.1985); Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985). The use of the term "benefits" in no way invalidates the divorce decree or prohibits the honor of such a decree by the AFAFC.

2. Plaintiff argues that the withholding of Mrs. Goad's share of Plaintiff's retirement pay violates the Texas Constitution's prohibition against garnishment of wages. The Court finds that the case law on this issue is clear. Although article XVI, § 28 the Texas Constitution and Tex.Civ.Pract. & Rem. § 63.004 (Vernon 1986) prohibit garnishment of "current wages," the Texas courts have expressly held that military retirement pay is not "current wages" and thus is not exempt from garnishment under the Texas Constitution. Wagar v. United States, 582 S.W.2d 896, 897 (Tex.Civ.App. — San Antonio 1979, writ dism'd); United States v. Wakefield, 572 S.W.2d 569, 572 (Tex.Civ.App. — Fort Worth 1978, writ dism'd); United States v. Fleming, 565 S.W.2d 87, 88-89 (Tex.Civ.App. — El Paso 1978, no writ).

Moreover, there is no indication that the withholding pursuant to the FSPA is in fact a garnishment, as it is applied to Mr. Goad's retirement pay. The money being withheld from Plaintiff's retirement pay is not property of Mr. Goad upon which Mrs. Goad sought to execute judgment, but in fact became Mrs. Goad's separate property with the entry of the Goads' divorce decree. The language of the decree specifically states:

Petitioner Mrs. Goad is awarded the following as Petitioner's sole and separate property, and Respondent Mr. Goad is hereby divested of all right, title and interest in and to such property.

. . . . .

5. All right, title and interest in and to twelve/twenty-sevenths (12/27) of the United States Air Force Retirement benefits of ROLAND LEE GOAD AF# — XXXXXXXXX.

The withholding and transfer to Mrs. Goad of funds which belong to her cannot properly be characterized as a garnishment. Plaintiff's claim of violation of the Texas Constitution must therefore be dismissed.

3. Similarly, ...