Baka v. United States

74 Fed. Cl. 692, 2006 U.S. Claims LEXIS 363, 2006 WL 3474582
CourtUnited States Court of Federal Claims
DecidedNovember 29, 2006
DocketNo. 06-348C
StatusPublished
Cited by9 cases

This text of 74 Fed. Cl. 692 (Baka v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baka v. United States, 74 Fed. Cl. 692, 2006 U.S. Claims LEXIS 363, 2006 WL 3474582 (uscfc 2006).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This case is before the Court on Defendant’s motion to dismiss for lack of subject matter jurisdiction, or in the alternative, for judgment on the administrative record. Plaintiff Joseph Baka alleges that the Government, acting through the Defense Finance and Accounting Service (“DFAS”), improperly enforced a 1986 California divorce decree awarding a portion of his military retirement pay to his former spouse. For the reasons stated below, most of Plaintiffs claim is barred by the applicable statute of limitations, 28 U.S.C. § 2501. Defendant is entitled to judgment on the remainder of Plaintiffs claim because the California divorce decree is “regular on its face” and Government officials followed the procedures established under the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 (“the Act”). See Mom v. United States, 59 Fed.Cl. 234 (2003); Goad v. United States, 24 Cl.Ct. 777 (1991), aff'd, 976 F.2d 747 (Fed.Cir.1992).

Background

Chief Petty Officer Joseph F. Baka retired from the United States Navy on October 3, 1977, whereupon he became eligible for retirement pay. Administrative Record (“AR”) at 8. On July 17 1986, the Superior Court of California, San Diego County, entered a final Judgment of Dissolution of the marriage of Mr. Baka and his wife, Claire Baka. AR at 6-12. The California Court incorporated into the final Judgment a June 22, 1984 stipulation by Mr. and Mrs. Baka, granting to Claire Baka approximately one third of Plaintiffs retirement pay. AR at 8-12.

Two months after entry of the final Judgment, Claire Baka applied to the Navy Family Allowance Activity (“NFAA”)1 for payment of her share of Mr. Baka’s retirement pay pursuant to 10 U.S.C. § 1408. The Government approved Claire Baka’s request, and in November 1986 began withholding $273.91 per month from Mr. Baka’s retirement pay. AR at 54-55.

Twenty years later, on May 1, 2006, Mr. Baka filed a complaint in this Court claiming “the wrongful and unlawful taking of a portion of my earned military retired pay” in violation of 10 U.S.C. § 1408 and 32 C.F.R. § 63.6 (1985).2 (Complaint H1). The complaint contains the following specific allegations:

1. That the NFAA erroneously enforced the California court decree designating Plaintiffs retirement pay as community property to which Claire Baka was partially entitled, in violation of various subsections of 32 C.F.R. § 63.6. Id. K116, 7.

2. That the California court lacked subject matter jurisdiction to designate Plaintiffs retirement pay as community property, and lacked personal jurisdiction over Plaintiff with respect to the divorce proceedings. Id. 11118, 11.

3. That the California court erroneously awarded Claire Baka a portion of [694]*694Plaintiffs “gross” monthly retirement annuity, rather than his “disposable” retirement pay, in violation of 32 C.F.R. § 63.6(c)(8). Id. 1115.

4. That DFAS unlawfully continued to enforce the California court order after Ms. Baka’s death on October 25, 2004, in violation of 32 C.F.R. § 63.6(h)(3). Id. 1121.

Mr. Baka claims that the Government’s actions injured him in the amount of $79,753.92. Id. H 26.

In response, Defendant alleges that the relevant statute of limitations in 28 U.S.C. § 2501 deprives this Court of jurisdiction for the majority of Plaintiffs claim. (Defendant’s Motion at 8-11). In the alternative, Defendant argues that the administrative record demonstrates that the California court decree was “regular on its face” and that Government officials complied with the Act and all applicable regulations in accepting Claire Baka’s application and honoring the California decree. Id. at 11-18. Defendant finally argues that, to the extent NFAA and DFAS erred in withholding Plaintiffs retirement pay after Claire Baka’s death on October 25, 2004, Mr. Baka has been reimbursed. Id. at 18-19.

Standard of Review

In ruling on a motion to dismiss for lack of subject matter jurisdiction, the Court accepts as true the undisputed allegations in the complaint, and draws all inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed.Cir.1988). Where Plaintiff appears pro se, his pleadings are construed “liberally,” and held to “less stringent standards than formal pleadings drafted by lawyers.” McSheffrey v. United States, 58 Fed. Cl. 21, 25 (2003) (quoting Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). This liberal standard does not, however, relieve Plaintiff of his burden to establish jurisdiction by a preponderance of the evidence. Tindle v. United States, 56 Fed. Cl. 337, 341 (2003).

In determining whether Plaintiff has met his burden, the Court may look “beyond the pleadings and ‘inquire into jurisdictional facts’ in order to determine whether jurisdiction exists.” Lechliter v. United States, 70 Fed.Cl. 536, 543 (2006) (citing Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir. 1991)). In the present case, both Defendant and Plaintiff have submitted documents in support of their pleadings. The Court will refer to these materials “to the extent that they allow the court to determine whether it has jurisdiction over this case.” Id.

Statute of Limitations

Plaintiffs claim arises under 28 U.S.C. § 1491, which grants this Court jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department[J” 28 U.S.C. § 1491(a)(1) (the “Tucker Act”). Because the Tucker Act “does not itself confer a substantive right of recovery,” plaintiffs in this Court “must invoke substantive rights grounded expressly or by implication in a contract, an act of Congress or a regulation of an executive department.” United States v. Connolly,

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Cite This Page — Counsel Stack

Bluebook (online)
74 Fed. Cl. 692, 2006 U.S. Claims LEXIS 363, 2006 WL 3474582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baka-v-united-states-uscfc-2006.