Another case brought against the Uniformed Services Former Spouses Protection Act is dismissed.

For all its purported flaws, a 1982 law that allows state courts to divide military retirement as property in divorce settlements appears to have one enduring characteristic: armor plating.
Although retirees and former spouses long have contended that the law has weaknesses, no branch of government seems willing to tamper with it.

That held true again in October when a federal judge in Alexandria, Va., dismissed a lawsuit and all associated claims brought by 58 divorced service members and retirees who challenged the constitutionality of the Uniformed Services Former Spouses Protection Act (USFSPA).

U.S. District Court Judge James. C. Cacheris, for the Eastern District of Virginia, dismissed Adkins, et al. v. Rumsfeld on the grounds that federal courts lack subject matter jurisdiction to hear the case. Cacheris also ruled that the plaintiffs — both the individuals and the USFSPA Legal Support Group (ULSG), a limited liability corporation established to raise legal fees for the court challenge — lacked legal standing to bring the lawsuit.

Thus, the USFSPA remains unaltered.

It sustains a pattern that frustrates many divorced service members and retirees.

Several years ago, DoD studied the USFSPA for many months, found some flaws but failed to follow up with legislative proposals for Congress to consider.

Members of Congress receive a steady stream of complaints on the USFSPA, yet key committees have declined to hold hearings for at least the past decade.

Courts from time to time weigh legal challenges but typically dismiss them, suggesting it’s the job of Congress to modify the law.

In this most recent court case, lawyers for the plaintiffs contend, the judge ruled illogically that service members and retirees can and should raise all relevant constitutional challenges in state court, at the time of their divorce settlements. But weaknesses in the law’s procedural protections aren’t experienced — and therefore “ripe” for litigation — until months or years later when the Defense Finance and Accounting Service (DFAS) actually divides retired pay, the plaintiffs contend.

Cacheris, in his 15-page opinion, said federal courts lack subject matter jurisdiction to hear the case, and plaintiffs lacked legal standing to bring their lawsuit. He also ruled that, because the legal challenges could have been raised in state courts when the original divorce and property issues were settled, a legal principle of res judicata applies. The Latin phrase means “the thing has been judged,” so a new case is useless.

During oral arguments in September, Dennis C. Barghaan Jr., an assistant U.S. attorney representing defendant Defense Secretary Donald Rumsfeld, attacked each of four broad arguments made by plaintiffs that USFSPA is unconstitutional: That it was wrongly applied to members already in service when the law took effect, thus denying due process; that it differs prejudicially from laws governing how other federal pensions are treated as marital property; that it is not applied with uniformity by state courts; and that it provides inadequate procedural protections against illegal taking of retired pay.

To the charge that procedural protections for retirees are inadequate, Barghaan noted a “procedural labyrinth” former spouses must traverse to win a share of retired pay, comparing it to penetrating Fort Knox. He advised Cacheris that what plaintiffs seek is a kind of “mini-trial” before DF AS officials for any property settlement and divorce decree a service member or retiree might seek to challenge.

In his ruling weeks later, Cacheris agreed with Barghaan that the court doesn’t need to weigh the merits of the constitutional challenges to the USFSPA.He had to dismiss the case, he said, based on two previous Supreme Court rulings that bar federal courts from nullifying state court judgments on issues that could have been raised there. This Rooker-Feldman doctrine has been used by other federal courts to dismiss other challenges to the USFSPA.

The judge said he assumed service members and retiree plaintiffs had “participated in their divorce proceedings” and therefore had “a reasonable opportunity to raise their federal claims in state court.”

In asking Cacheris to reconsider, lawyers for the plaintiffs said it’s illogical to expect service members and retirees to seek relief in state courts to procedural flaws in the USFSPA when the harmful effects don’t occur until months or years later when DFAS actually begins to divide their retired pay.

In mid-November Cacheris agreed to hear plaintiffs’ motion for reconsideration. Plaintiffs, meanwhile, announced plans to appeal to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., if Cacheris again declines to accept the case.

The assault on the USFSPA continues. But so far the armor doesn’t yield.

Tom Philpott is a freelance writer and syndicated news columnist. His column, "Military Update," appears in 48 daily newspapers throughout the United States and overseas.