Carson J. Tucker and Lex Fori PLLC filed a petition in the United States Supreme Court on Friday, August 28, 2020 to protect veteran’s disability benefits from wrongful appropriation contrary to federal law.
For decades, disabled veterans have suffered immeasurably under the Court’s wholly judicial creation of an exception to explicit protections afforded them by Congress’s exercise of its enumerated military powers.
Self-interested lawyers and state machinations have collaborated to raise a clamor to prevent this self-executing and explicit preemptive law from taking effect. But the swell of defiance does not make these parties any more correct, nor can it insulate state courts from the rights of those who seek to regain and restore to themselves their constitutional entitlements.
The passage of time and the din of dissension cannot erode the underlying structure guaranteeing the rights bestowed. The Supreme Court has recently expressed this sentiment in overturning more than a century of reliance on erroneous legal principles. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). There, Justice Gorsuch, writing for a majority of the Court stated:
“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” Id. at 2482.
The federal statutes and regulations passed pursuant to Congress’s enumerated military powers contain no allowance to the states to sequester the veterans’ disability benefits at issue in this case and force them to be paid over to any other individual for state-imposed support obligations.
Rather, these benefits are (and always have been) explicitly excluded from state jurisdiction and control, before, 42 U.S.C. § 659(h)(1)(B)(iii), and after, 38 U.S.C. § 5301(a)(1), their receipt by the beneficiary.
We are taking affirmative steps of ensure that this is rectified.
Hi my name is Albert Troiani my War Time Disabilty Compensation was use to calculate a support order In direct defiance to the federal law 5301 and now I live in a van down by the river! It’s cold and in the morning the trucks go by and they wake me up and that’s the way it is.
How long is this process, petition to the SCOTUS, usually from start to finish with a decision?
Hey, Daniel, Generally, SCOTUS petitions are resolved within a few months after the time for replying has passed. A lot depends on whether the case sparks interest with the Court, and other factors. This time line also might be extended due to COVID-19. We’ll keep everyone posted. Carson
I, like other posting here, am a Disabled Veteran, 80%. And my disability was used as remuneration for child support. I am now facing bankruptcy due to the State of Illinois Family Court Laws.
We will leave no Veteran behind! Mansell v. Mansell, Howell v. Howell, Cassinelli v. Cassinelli, all have reiterated the law: Disposable income, I.e., Military Retired Pay (MRP), is a “property right” under most (all?) states’ Family law codes. However, there MUST be an understanding of two salient facts. One, it is a defeasible property interest to be ended by a multiplicity of events, including being ended by the U.S. Government, or the inevitable death of the disabled Veteran. Two, Howell v. Howell confirmed in the law by SCOTUS (later affirmed by the Arizona Legislature and Cassinelli v. Cassinelli), VA Disability and Combat Related Special Compensation (CRSC) cannot be used in any calculation intended to determine spousal support, alimony or such other payments as a Family Court may construe. In all three cases, SCOTUS recognized, directly and/or implicitly, Congress’s “power of the purse” and its role in determining how the funds it appropriates for the members of the U.S. military forces, active, retired and/or disabled. Of note, all Federal statutes which adumbrate the rules regarding these payments, take particular care to outline the need for “child support” when necessary.
Thanks, Robert, we got the original. Here it is.
Mr. Tucker , I would like to say THANK YOU for all you are doing for all VETS. This issue has been going on for decades since the ROSE case, family law judges ignore what’s right in front of their face and we vets drown in debt and mental anguish trying to make them understand that va compensation shouldn’t be calculated. This isn’t about skipping out on supporting our offspring , no one should tell you how to support them. That’s obviously and our duty to provide. I am currently dealing with family court and even though I have pointed out all the laws and regulations that protect me and even have gotten an apportionment denial from the va , the judge refuses to acknowledge it and have proceeded to violate my rights.
A needed correction to my submission: Sentence beginning, “SCOTUS recognized … ” should end with this: “…are to be apportioned.”
Thanks, Robert! Appreciate your contribution. We are all in this together!
Not sure my original comment made it onto the string. If not, that correction makes no sense!!!!! Please let me know. As I have an iMac, I’m thinking I can recover the text of that “rant.”
Thanks for the heads up. Looks like we have “work” to do in Illinois. I’m going to be approaching my state legislators to see if we can inspire some action vis-a-vis what they did in Arizona. To be sure, I think we need to be approaching our national legislators as well. From this PoliSci Theortician, the current contretemps between the co-equal branches of government, Congress and Trump, politically it might/could/should be a good time to throw some JP-4 on the fire of that feud. To be sure, both those entities, do not want to piss of this nation’s several million Veterans. And here is the issue for the VSOs, although the American Legion “old timers” do not see any consanguinity in this issue, to be sure, come the day when one of them is in the old soldiers’ home (we have a couple in California), and that spouse they divorced all those years ago comes after the money which pays for their being domiciled in the home. Believe we need to be pro-active in this area. What would you like for me to be doing? And you asked a question about Max’s case in re judgment date and the missed filing with SCOTUS. Thoughts? Max is a bonafide hero and needs to have the ruling against him overturned. Ellen is going to be working on it with me. Can we file a notice to SCOTUS in this regard? A side note: How do I post a photo on this string?
I just wanna thank Carson tucker for all the hard work and dedication he does for veterans. I’m sure he’s going to win!
Also Robert what was the action that was taken in arizona because I live in arizona and my disability compensation was used to calculate a support order and I do now waive any retirement pay. I have a paid attorney in phx AZ. Moorhead law they are really good. I’m in the process of putting in a motion to modify child support but I don’t know how to explain to my attorney what he should say to the judge. I was thinking about sending him a copy of the amicus curi brief that is posted on Carson’s website. Thanks again Carson I’m your biggest fan!
However because of this new petition that was filed should I just wait till This case is over since they are a much higher court.
Thanks for reading sorry for the grammar errors.
Albert, Here are the references: First, Howell v. Howell, Supreme Court Decision in 2017; then Arizona Revised Statute 25-318.01 and 25-318.01(2). Have your attorney due the research. Carson wrote the amicus curiae brief in the Howell case. The Arizona law was revised in 2015. Suggest your attorney needs to connect with this website for further education on the Federal laws which apply. Good luck.