In the United States Court of Federal Claims

No. 19-216C

(Filed: May 31, 2019)

 

ALONZA MONROE, ) Claim for refund of garnishment of Army
) retirement pay; applicability of the
Plaintiff, ) Uniformed Service Former Spouses’
) Protection Act; 10 U.S.C. § 1408
v. )
)
UNITED STATES, )
)
Defendant. )
)
)

 

Alonza Monroe, pro se, Elgin, Oklahoma.

Borislav Kushnir, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Mickey Lee,
Assistant Counsel, Office of the General Counsel, Defense Finance and Accounting Service.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff Sergeant First Class Alonza Monroe, U.S. Army (ret.), has brought suit against
the United States (the “government”), acting through the Defense Finance and Accounting
Service (“DFAS”), seeking refund of the garnishment of his Army retirement pay and an order
halting future garnishment. Compl. at 1-3; Ex. E.! DFAS started garnishing Mr. Monroe’s
retirement pay in August 2018 after approving a claim made by his former spouse pursuant to the
terms of their divorce. Exs. A, B. The government has moved to dismiss the complaint for lack
of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal
Claims (“RCFC”). See Def.’s Mot. to Dismiss the Compl. (“Def.’s Mot.”), ECF No. 5.

Mr. Monroe’s complaint appends five exhibits. Exhibit A consists of a letter dated July
12, 2018, from DFAS to Mr. Monroe notifying him of impending garnishment of 29.2% of his

 

\Citations to the complaint correspond to the page numbering as reproduced in the court’s
Electronic Case Filing System. The complaint also incorporates five exhibits, citations to which
(i.e., Exs. A through E) correspond to the designations as identified by the complaint, but the
page numbering reflects that reproduced in the court’s Electronic Case Filing System.

7005 2570 OO01 6602 3b

 
retirement pay after receiving an application by his former spouse. Exhibit B contains
attachments to the DFAS notification letter, consisting of (1) a 2012 order from the Superior
Court of California, County of San Bernardino (“Superior Court”) that grants his former spouse
an interest in his retirement pay as part of their marriage dissolution and (2) a copy of the
dissolution judgment. Exhibit C provides selected Department of Defense regulations regarding
an application by a former spouse for receipt of a service-member’s retirement pay. Exhibit D
provides certified original copies of the matriage dissolution judgment and the marital settlement
agreement, Exhibit E is a copy of Mr. Monroe’s retirement pay statement from August 2018,
which shows a garnishment of $819.62 from $2,806.00 of monthly retirement benefits before
taxes.

Because this court lacks subject-matter jurisdiction, the government’s motion to dismiss
Mr. Monroe’s complaint is GRANTED.

BACKGROUND

Mr. Monroe separated from his spouse in May 2012 and filed for dissolution in July
2012. Ex. D at 7. His marriage was dissolved in January 2013 by the Superior Court pursuant to
a judgment filed on December 6, 2012. Ex. B at 2-3, 12. A subsequent Superior Court order
dated December 11, 2012, found that Mr. Monroe’s spouse had an interest in his military
retirement benefits as part of a division of community property and prescribed a formula to
calculate her entitlement. See Ex. B at 2-4.

DFAS received an application from Mr. Monroe’s former spouse for her share of the
retirement pay, and notified Mr. Monroe of her application in a letter dated July 12, 2018. Ex. A.
The letter calculated his spouse’s entitlement at 29.2% based upon the 2012 Superior Court order
and provided a certified copy of that order. Ex. A. The 2012 order was certified as an accurate
copy by the clerk of the pertinent court on June 18, 2018. Ex. B at 10. The letter explained that
the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, permitted
garnishment upon receipt of a final court order that divided retirement pay as part of a divorce
proceeding. Ex. A. The letter also explained that if Mr. Monroe did not contest the application

within 30 days, DFAS would honor the Superior Court order and initiate payments to his former
spouse in August 2018. Ex. A. Garnishment commenced in August 2018. Ex. E.

STANDARDS FOR DECISION
Rule 12(b)(1) — Lack of Subject-Matter Jurisdiction

The Tucker Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(@)Q). To
invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” /* isher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, A24 US. 392, 398 (1976)). If a plaintiff fails to do so,
this court “should [dismiss] for lack of subject matter jurisdiction.” Jan’s Helicopter Serv., Inc.

 
y. Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cty. v.
United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

Mr. Monroe, as plaintiff, must establish jurisdiction by a preponderance of the evidence.
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir, 2011) (citing Reynolds
v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 Fed. Cir. 1988)).2 When ruling on a
motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts
asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff”
Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “Ifa court lacks
jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir, 1985)); see also RCFC 12(h)G)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).

ANALYSIS

Mr. Montoe contends that DFAS initiated the garnishment “without any or all required
certified documents” and contrary to the requirements of the Uniformed Services Former
Spouses’ Protection Act. Compl. at 2, Mr. Monroe asserts that the “required court documents to
even initiate garnishment [were] not in possession of [his] former spouse or DFAS until after
official notification of garnishment,” arguing DFAS had approved garnishment by June 12,
2018, but relied upon a court order certified June 18, 2018. Compl. at 2. Mr. Monroe also may
suggest that the Superior Court’s order was improper because it was contrary to an earlier
settlement agreement between him and his former spouse regarding division of property. Compl.

at 2.

The government argues that this court lacks jurisdiction under the language of the
Uniformed Services Former Spouses’ Protection Act because that Act disclaims a waiver of
sovereign immunity when garnishment occurs pursuant to a court order that is regular on its face
and issued in accordance with applicable procedure. Def.’s Mot. at 4-5. The government
contends that the court order is facially valid under the terms of the statute and that Mr. Monroe
makes no plausible assertion that DFAS did not follow applicable procedures, specifically
asserting that Mr. Monroe misread the dates of the referenced documents. Jd. at 5-6
(commenting that the DFAS notice is dated July, not June, 2018).

Mr. Monroe has not specified the basis for the court’s jurisdiction, but the Tucker Act
permits the court to hear “any claim against the United States founded [] upon... any Act of
Congress.” 28 U.S.C. § 1491(a). Mr. Monroe’s entitlement to retirement pay and the amount of

 

2A court may “grant the pro se litigant leeway on procedural matters, such as pleading
requirements.” McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (“An unrepresented litigant should not be punished for his
failure to recognize subtle factual or legal deficiencies in his claims.”)). But this leniency cannot
extend to lessening jurisdictional requirements. See Kelley v. Secretary, United States Dep’t of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[A] court may not... take a liberal view of...
jurisdictional requirement[s| and set a different rule for pro se litigants only.”).

 
that pay does rest upon statute, See, e.g., 10 U.S.C. 3§ 7329, 7361. But another statute, the
Uniformed Services Former Spouses’ Protection Act, provides in pertinent part:

(f) Immunity of Officers and Employees of United States.(1) The United
States and any officer or employee of the United States shall not be liable with
respect to any payment made from retired pay to any member, spouse, or
former spouse pursuant to a court order that is regular on its face if such
payment is made in accordance with this section and the regulations
prescribed pursuant to subsection (i).

10 U.S.C. § 1408()(1).

This court has previously treated 10 U.S.C. § 1408(f)(1) as a limitation of the United
States’ waiver of sovereign immunity. Goad v. United States, 24 Cl. Ct. 777, 785-86 (1991),
aff'd, 976 F.2d 747 (Fed. Cir. 1992); see also Baka v. United States, 74 Fed. Cl. 692, 697 (2006);
Mora v. United States, 59 Fed. Cl. 234, 239 (2003). Accordingly, if the Superior Court’s order
appears facially valid and if Mr. Monroe has not made a plausible attack on DFAS’ adherence to
applicable procedure, substantive law removes a right to money damages, and thus this court
lacks jurisdiction to inquire further. E.g., Baka, 74 Fed, Cl. at 697 (quoting Mora, 59 Fed. Cl. at
240),

The Uniformed Services Former Spouses’ Protection Act provides that “a court order is
regular on its face if the order (A) is issued by a court of competent jurisdiction, (B) is in legal
form; and (C) includes nothing on its face that provides reasonable notice that is issued without
authority of law.” 10 U.S.C. § 1408(b)(2); see also, ¢.g., Baka, 74 Fed. Cl. at 698. The court
order upon which DFAS relied, see Ex. B at 2-9, appears facially valid. The court order
identifies that it was issued by the California Superior Court for San Bernardino County. Ex. B
at 2. It bears the signatures of Mr. Monroe, his former spouse, and a judge of the Superior Court.
Ex, B at 9. Italso is attended by a certification from the clerk of the court. Ex. B at 10. These
characteristics sufficed for facial regularity in both Baka, 74 Fed. Cl, at 698, and Mora, 59 Fed.
Cl. at 240, and will suffice here as well.

The Uniformed Services Former Spouses’ Protection Act provides that the Department of
Defense must commence payments upon effective service, see 10 U.S.C. § 1408(d)(1), which
occurs upon receipt of a court order that is facially valid, identifies the service-member, and
complies with the Servicemember Civil Relief Act, see id. § 1408(b)(1). The court order appears
facially valid, identifies Mr. Monroe, and attests to compliance with the Servicernember Civil
Relief Act. See Ex. B at 2-3, 5-6. Because Mr. Monroe was the petitioner for dissolution of the
marriage, the Superior Court would have had personal jurisdiction over Mr. Monroe. See, @.g.,
Ex. B at 2; Ex. D at 3. The Department of Defense may prescribe regulations to administer
Section 1408, see 10 U.S.C. § 1408(), and these appear in the Department’s Financial
Management Regulation, DoD 7000.14-R, vol. 7B, ch. 29 (2017). The Superior Court’s order

 

3 The reference to subsection (i) likely is intended to refer to subsection (j). Compare 10
U.S.C. § 1408() (“Certification Date”), with id. § 1408() (“Regulations”); see also Pub. L. No.
104-193, § 363(c)(1), 110 Stat. 2249 (1996) (adding a new subsection (i) and designating the old
subsection (i) as subsection (j)).

 
contains the information required by the regulations, such as appearing facially regular,
providing the spouse’s entitlement, and providing grounds for personal jurisdiction, See id. §
2906. Mr. Monroe also received the notice as required by regulations. See id § 2905.

Mr. Monroe’s complaint does not allege any plausible factual basis for questioning
whether DFAS adhered to procedure. Mr. Monroe does raise two challenges that implicate facial
validity or procedure, but neither are plausible even when viewed in a light most favorable to Mr.
Monroe. First, Mr. Monroe contends that DFAS could not have relied upon the court order
because the notification letter preceded the certification of the court order by at least six days.
Compl. at 2. But the documents provided by Mr. Monroe show that he has misread the dates.
The clerk of the Superior Court certified the order on June 18, 2018. See Ex. B at 10 (“6-18-
18”). The DFAS notification letter is dated July 12, 2018, Ex. A at 2 (dated “Jul 12, 2018”), not
June 12, as he contends, Compl. at 2 (asserting “6-12-18”). Second, Mr. Monroe labels the court
order as “uncertified” and “unsigned.” Compl. at 2. But, as noted, the court order provided by
Mt. Monroe indicates the opposite. See Ex. B at 9-10. The only signature not appearing is that
of Mr, Monroe’s attorney, see Ex. B at 9, but the court does not see how this omission would
invalidate the judge’s order, let alone represent facial invalidity. Mr. Monroe may be referring to
his not having signed the marital settlement agreement appended to the dissolution judgment, see
Ex. D at 12, but that would not affect the validity, facial or otherwise, of the subsequent and
signed Superior Court order upon which DFAS relied.

Finally, to the extent Mr. Monroe challenges the Superior Court’s order, this court is
without jurisdiction to hear such a claim. The Tucker Act does not grant this court appellate
review over state court decisions, and instead permits this court only to hear suits against the

United States. See 28 U.S.C. § 1491 (a).
CONCLUSION

For the reasons stated, the government’s motion to dismiss Mr. Monroe’s complaint is
GRANTED. Mr. Monroe’s complaint shall be DISMISSED without prejudice. The clerk shall
enter judgment accordingly.

No costs.

It is so ORDERED.

Kk

Charles F. Lettow
Senior Judge

 
