No. 25-781
In The Supreme Court of the United States
DONALD WENGER, Pro Se,
Petitioner,
V.
JUDGE JAMES T. WARREN,
COURT APPOINTEE RICHARD R. MUIR,
Respondents.
--------------------------⋄--------------------------
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT
--------------------------⋄--------------------------
PETITION FOR A WRIT OF CERTIORARI
--------------------------⋄--------------------------
Donald Wenger, Pro Se
CW04 USMCR
QUESTIONS PRESENTED
- Whether state judges are BOUND by the Uniformed Services Former Spouses' Protection Act (USFSPA) Pub. Law 97-252 (1982) pursuant to Article I § 8 of the Constitution, thereby REQUIRED to OBEY the precise definition of "disposable retired pay" expressed in the plain text of Positive Law 10 U.S.C. § 1408(a)(4).
- Whether state judges are BOUND by the Veterans Judicial Review Act (VJRA) Pub. Law 100-687 (1988) pursuant to Article I § 8 of the Constitution, thereby REQUIRED to OBEY the Complete Federal Preemption expressed in the plain text of Positive Law 38 U.S.C. § 511.
- Whether the Defendants are Personally Liable in their Individual Capacity for their violations of Positive Law 10 U.S.C. § 1408 and Positive Law 38 U.S.C. § 511 in the complete absence of all Jurisdiction on the Subject Matters of Title 10 and Title 38.
i
LIST OF PARTIES
All parties appear in the caption of the case on the cover page. As per Rule 14.1(b) and Rule 29.6, this Petition is filed by the Pro Se Plaintiff alone, not by or on behalf of a corporation.
RELATED PROCEEDINGS
Wenger v. Warren, No. 24-cv-02211 U. S. District Court for the Central District of California.
Judgment entered Nov. 15, 2024.
Wenger v. Warren, et al., No. 24-7194 U. S. Court of Appeals for the Ninth Circuit.
No Judgment entered yet.
SIMILAR CASES
Lott v. Lott, No. 24-1160 (Cert. denied 10/6/25) Virginia courts violated the USFSPA by ignoring 10 U.S.C. § 1408(a)(4)(A)(ii).
Miller v. Miller, No. 24-1313 (Cert. denied 10/6/25) Tennessee courts claimed to be bound by Rose v. Rose (infra) instead of the current law 38 U.S.C. § 511 pursuant to the Constitution.
Yourko v. Yourko, No. 23-999 (Cert. denied 10/7/2024) Virginia courts ruled that state contract law overrides federal preemption despite Howell (infra) and Mansell (infra).
Martin v. Martin, No. 23-605 (Cert. denied 10/7/2024) Nevada court violated both USFSPA and VJRA in the same way as Yourko (above).
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TABLE OF CONTENTS
- QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . i
- LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . ii
- RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . ii
- SIMILAR CASES . . . . . . . . . . . . . . . . . . . . . . . . . ii
- TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . iv
- PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1
- OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 2
- JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 2
- CONSTITUTIONAL PROVISIONS . . . . . . . . . . . 3
- STATUTORY POSITIVE LAW . . . . . . . . . . . . . . . 6
- STATEMENT OF THE CASE . . . . . . . . . . . . . . . 10
- REASONS FOR GRANTING THE WRIT . . . . . . . 12
- CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 21
INDEX TO APPENDICES
APPENDIX A Judgment of the U. S. District Court for the Central District of California. (Doc. #12)
APPENDIX B In Chambers – Order from the District Court (Doc. #11)
APPENDIX C Text from Exhibits in Doc. #1 proving federal preemption
APPENDIX D Table of Similar Cases
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In The Supreme Court of the United States
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays the Court to issue a Writ of Certiorari to review the Opinions below and provide an affirmative answer to the Constitutional Questions presented above.
This is a very simple matter of constitutional law hidden behind 3 decades of predatory corruption and profiteering which has caused massive damage to significant federal interests.
For over 35 years, state judges have been committing semantic fraud to disobey the rulings of this Court in Mansell v. Mansell, 490 U.S. 581 (1989) and Howell v. Howell, 581 U.S. ___ (2017) as well as the clear preemption of state jurisdiction established by the “plain and precise” language of the USFSPA and current positive law 38 U.S.C. § 511 pursuant to the Constitution.
Even IF only 1 out of 10 veteran suicides are caused by this violation of preemption, that is over 1000 per year.
Answering the Questions presented above will reconcile and resolve all of the similar cases listed above and below in APPENDIX D.
That will help thousands of families nationwide by preventing veteran SUICIDE.
1
OPINIONS BELOW
The opinion of the United States District Court appears at Appendix B to the petition and is unpublished.
Wenger v. Warren, No. 24-cv-02211 U. S. District Court for the Central District of California. Judgment entered Nov. 15, 2024.
Wenger v. Warren, et al., No. 24-7194 U. S. Court of Appeals for the Ninth Circuit. No Judgment entered yet.
JURISDICTION
Jurisdiction is invoked under 28 U.S.C. § 1254(1) and Rule 11 because the Court of Appeals for the Ninth Circuit has not made a ruling yet, but this is a matter of life and SUICIDE for thousands of veterans under the same circumstances of predatory injustice. State judges will not stop committing violations of federal preemption until this Court holds them accountable to the Supreme Law of the Land.
This Court is the ONLY court in the United States with power to resolve this issue by making judges aware of their personal liability for violating federal preemption.
Due Process of Law does not take anything away from our families, but predatory corruption, profiteering and suicide sure does.
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CONSTITUTIONAL PROVISIONS
US Constitution Article VI § 2
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
US Constitution Article VI § 3
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution;
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US Constitution Article I § 8
- [1] The Congress shall have power to ... provide for the common defense and general welfare of the United States;
- [9] To constitute tribunals inferior to the Supreme Court;
- [11] To declare war, ...
- [12] To raise and support armies; ...
- [13] To provide and maintain a navy;
- [14] To make rules for the government and regulation of the land and naval forces;
- [17] To exercise ... authority over all ... forts, magazines, arsenals, dockyards, and other needful buildings;
- [18] To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
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US Constitution Amendment XIV, Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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STATUTORY POSITIVE LAW
1 U.S.C. § 204
In all courts, tribunals, and public offices of the United States, at home or abroad, of the District of Columbia, and of each State, Territory, or insular possession of the United States—
(a) United States Code.—
The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.
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10 U.S.C. § 1408(a)(4)(A)
The term “disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which—
(i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;
(ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;
(iii) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or
(iv) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order under this section.
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38 U.S.C. § 511
(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
(b) The second sentence of subsection (a) does not apply to—
(1) matters subject to section 502 of this title;
(2) matters covered by sections 1975 and 1984 of this title;
(3) matters arising under chapter 37 of this title; and
(4) matters covered by chapter 72 of this title.
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38 U.S.C. § 5301(a)(1)
Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
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STATEMENT OF THE CASE
The Respondents caused permanent harm and hardship to me and my family by using a common practice of the California courts to commit predatory discrimination and fraud by the deliberate violation of the USFSPA and the VJRA.
Their frauds were based on taking Rose v. Rose, 481 U.S. 619 (1987) and Mansell v. Mansell (supra) out of context and using threats of jail to extract and extort money from my VA benefits.
Before Judge Warren appointed Muir to commit the violation of the USFSPA, he committed multiple violations of the VJRA with his rulings to divide and distribute my VA benefits.
Muir knowingly and willfully broke federal law by using “indemnification” language to circumvent federal preemption about the same time this Court upheld Mansell v, Mansell (supra) by the ruling in Howell v. Howell, 581 U.S. ___ (2017).
We provided the District Court with indisputable proof of the complete preemption established by the VJRA amendment of 38 U.S.C. § 211 corresponding exactly to the ruling of this Court in Rose v. Rose.
The District Court overlooked the legal evidence of complete preemption and improperly dismissed the case without answering the federal questions or protecting my rights.
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In addition to tens of thousands of dollars in damages and costs, my family and I have suffered permanent harm by parental alienation.
Every day that passes, I feel the loss of contact with my children and I fear for their well being.
The Respondents committed systematic violations of federal preemption to extract money from federal disability benefits by using my family as an excuse.
Since my divorce, I have learned that the same predatory fraud happens to almost every military and veteran family that goes through divorce.
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REASONS TO GRANT THE WRIT
The Fourteenth Amendment to the Constitution provides me with grounds to enforce my rights, privileges and immunities that are secured by the Constitution and Laws of the United States.
Positive Law 10 U.S.C. § 1408 establishes my RIGHT to enforce the strict limits on how state courts are allowed to decide whether former spouses could have a payment from the service member’s “disposable retired pay” that would continue after being remarried, or not.
Positive Law 38 U.S.C. § 511 establishes my RIGHT to enforce the preemption of state jurisdiction which protects my VA benefits from state courts.
The Secretary of the U.S. Department of Veterans Affairs (VA) holds exclusive jurisdiction on every question of LAW and FACT that affects how Title 38 benefits are provided and/or distributed between veterans and their dependents.
Positive Law 38 U.S.C. § 5301 establishes my RIGHT to enforce the expressed statutory injunction protecting my benefits by immunity from any legal or equitable process whatever, to include protection from assignment, garnishment, contempt or jail.
Title 10 and Title 38 have ALWAYS been within the constitutional powers of Congress and they have NEVER been within the jurisdiction traditionally occupied by the states.
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According to the decision of this Court in Blessing v. Freestone, 520 U.S. 329 (1997), to enforce my rights under 42 U.S.C. § 1983 and other provisions of the Fourteenth Amendment, the only thing I need to prove is that the state is bound by federal laws intended to protect me.
Veteran benefits are NOT interchangeable with military retired pay, or subject to state jurisdiction, because Title 10 and Title 38 are Positive Law Titles and both preempt state jurisdiction separately.
The rulings of this Court in Mansell (supra) and Howell (supra) fully bind state courts to the federal preemption found in McCarty, 453 U.S. 210 (1981) based on the “plain and precise language” in the strict definition of “disposable retired pay” expressed in the USFSPA.
This is not a matter of “conflict preemption” because there is NO room for states to invade the field of jurisdiction fully occupied by Congress.
There is no reason to make any kind of inquiry or analysis of a conflict between federal and state law because preemption is established by the plain text of positive law and “it is Congress rather than the courts that preempts state law.” Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) quoting Justice Kennedy from Gade v. National Solid Wastes Management Assn., 505 U.S. 88 (1992).
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Federal Preemption
According to Article I § 8, cls. #1, Congress holds the power to provide for the "common defense and general welfare of the United States."
First, the purpose of Congress is the ultimate touchstone in every pre-emption case. Wyeth v. Levine, 555 U.S. 555 (2009) quoting Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963).
To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute. Gade v. National Solid Wastes Management Assn., 505 U.S. 88 (1992) quoting Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 138 (1990).
The "presumption against the preemption" DOES NOT APPLY because the Armed Forces of the United States (Title 10) and Veteran Benefits (Title 38) have NEVER been within jurisdiction that is traditionally occupied by the states.
The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. McCulloch v. Maryland, 17 U.S. 316 (1819).14
Uniformed Services Former Spouses' Protection Act
Congress exercised all of the Article I powers listed above to enact the Uniformed Services Former Spouses' Protection Act (USFSPA) Pub. Law 97-252 (1982) creating 10 U.S.C. § 1408. Positive Law 10 U.S.C. § 1408(a)(4) is not subject to “interpretation” by any state court because the USFSPA did NOT grant jurisdiction on Title 10.
In Mansell v. Mansell, 490 U.S. 581, 594 (1989), this Court explained how Congress rejected the idea of canceling the preemption found by this Court in McCarty v. McCarty (supra).
The USFSPA carved out a small window to allow state courts to make a simple decision on whatever “disposable retired pay” remained after deductions.
According to the Mansell decision, the USFSPA eliminated the possibility of indemnification clauses or agreements to protect former spouses from a reduction of disposable retired pay when the veteran exercised his or her Exclusive Right to waive retired pay to receive disability compensation from the VA. The USFSPA separated retired pay from veteran benefits, thereby canceled the portion of 42 U.S.C. § 659 and § 662 that allowed for the garnishment of VA benefits received in lieu of military retired pay.
15
The legislative history does not indicate the reason for Congress' decision to shelter from community property law that portion of military retirement pay waived to receive veterans' disability payments. But the absence of legislative history on this decision is immaterial in light of the plain and precise language of the statute; Congress is not required to build a record in the legislative history to defend its policy choices. Mansell at 592. (emphasis added)
In Howell v. Howell, 581 U.S. ___ (2017), the Court ruled that states have no authority to enforce indemnification language, no matter how clever it is.
Neither can the State avoid Mansell by describing the family court order as an order requiring John to “reimburse” or to “indemnify” Sandra, rather than an order that divides property. The difference is semantic and nothing more. Howell at Section II, para. #5. (emphasis added)
16
Veterans Judicial Review Act
In Rose v. Rose (supra), this Court described the chaos and damage that would happen if Congress did not clearly preempt state jurisdiction.
So, pursuant to Article I § 8 of the Constitution, specifically clauses 1, 9, 11, 12, 13, 14, 17 and 18, Congress exercised that power to control every aspect of jurisdiction on Title 38, thereby occupied the field. See Appendix C.
The Veterans Judicial Review Act (VJRA) Pub. Law 100-687 (1988) superseded Rose by eliminating the possibility of state jurisdiction, thereby closed EVERY other loophole created by Rose.
From that point forward, Jurisdiction on Title 38 belongs exclusively to Congress, the VA and specific federal courts. See Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (2012).
The VJRA isolated veteran benefits from retired pay, which made the “in lieu of retired pay” portion of 42 U.S.C. § 662 (cir. 1977) obsolete, dead-letter law.
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Question of Judicial Immunity
It is well settled law that judges have "absolute" immunity for actions and orders within the scope of jurisdiction that belongs to the court in which they preside, thus it is equally well established law that they have NO Immunity when they have NO possibility of jurisdiction on the subject matter of the rights they violate. See Bradley v. Fisher, 80 U.S. 335,336 (1871); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967); Mireles v. Waco, 502 U.S. 9 (1991); Imbler v. Pachtman, 424 U.S. 409 (1976); Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986); Joyce v. US, 474 F2d 215 (3d Cir. 1973).
[T]he scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 13 Wall. 335, 351 (1871)).
When judges cross the line of federal preemption, they strip themselves of immunity because they have NO possibility of jurisdiction on the subject matter of the rights they have already violated.
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The Question of Rooker-Feldman
It is well settled law that Rooker-Feldman (R-F) doctrine applies to actions and orders within the scope of jurisdiction that belongs to the state courts, thus it is equally well established law that Rooker-Feldman does NOT apply to federal questions about the preemption of state jurisdiction. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005); Lance v. Dennis, 546 U.S. 459 (2006); Hageman v. Barton, 817 F.3d 611, 615 (2016); Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003); Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2008). All of these cases are in full agreement on the difference between the "excess of their jurisdiction" and "the complete absence of all jurisdiction on the subject matter."
Neither Rooker, nor Feldman were dealing with federal preemption of state jurisdiction, therefore do not prevent the District Court from answering the Federal Questions presented. The District Court holds authority to answer the Federal Questions presented, even where that reveals the violation of due process by the violation of federal preemption.
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RELIEF
1) Grant a Writ of Certiorari to confirm that state judges are bound by federal law pursuant to the Constitution, thereby REQUIRED to OBEY the Complete Federal Preemption expressed and implied by Title 10 and Title 38.
2) Confirm that state judges have NO Immunity where they have NO Possibility of jurisdiction on the subject matter of the federal rights they have violated, and
3) EITHER; a) Issue an order of Punitive Judgment against the Respondents, jointly and severally in their Individual Capacity in the amount not less than Three Million Dollars ($3,000,000), … OR b) Issue a Remand back to the District Court for Jury Trial to decide on punitive damages and other professional sanctions to impose on the Respondents.
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ORAL TESTIMONY IS NOT REQUIRED
Oral testimony is not required because it will not shed any light on the questions presented above and the Defendants’ arguments cannot change the words or meaning of Supreme Law of the Land.
CONCLUSION
These direct Questions have never been presented to this Court in such a clear and concise manner.
This is the ONLY Court with authority to answer the Questions Presented above because it will address ALL of the issues and wash away ALL of the semantic arguments found in the noted cases of Lott , Miller , Yourko , and Martin (supra).
Holding the Respondent state actors accountable in this case will reconcile and resolve ALL of the others listed in APPENDIX D and shut down ALL the semantic fraud and frivolous litigation that has been used to circumvent the USFSPA, the VJRA and the decisions of this Court.
Answering the Constitutional Questions above will finally disrupt years of systematic profiteering by supporting the Constitution of the United States and enforcing the rights claimed herein.
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For these reasons, I hereby ask the Court to issue a Writ of Certiorari to the Ninth Circuit Court of Appeals along with affirmative answers to the Constitutional Questions presented above. Respectfully Submitted by
Donald Wenger
Executed on: December 8, 2025
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APPENDIX
INDEX TO APPENDICES
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . 1a
Judgment of the U. S. District Court for the
Central District of California. (Doc. #12)
APPENDIX B . . . . . . . . . . . . . . . . . . . . . . . . 2a
In Chambers – Order from the District Court (Doc. #11)
APPENDIX C . . . . . . . . . . . . . . .. . . . . . . . . . 8a
Text from Exhibits in Doc. #1 proving federal preemption
APPENDIX D . . . . . . . . . . . . . . . . . . . . . . . . 12a
Table of Similar Cases
APPENDIX A
Judgment of the U. S. District Court for the
Central District of California. (Doc. #12)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
| DONALD WENGER, | ED CV 24-2211 PA (Pdx) JUDGMENT |
Pursuant to the Court’s November 15, 2024 Minute Order, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this action is dismissed without prejudice.
IT IS SO ORDERED.
DATED: November 15, 2024
Percy Anderson
UNITED STATES DISTRICT JUDGE
1a
APPENDIX B
In Chambers – Order from
the District Court (Doc. #11)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
| Case No. Date Title | ED CV 24-2211 PA (PDx) November 15, 2024 Donald Wenger, et al. v. James Warren, et al. |
=====================================
Present:
The Honorable PERCY ANDERSON,
UNITED STATES DISTRICT JUDGE
Kamilla Sali-Suleyman
Deputy Clerk
Attorneys Present for Plaintiffs: None
Attorneys Present for Defendants: None
Proceedings:
IN CHAMBERS – COURT ORDER
The Complaint in this action identifies the plaintiffs as “Donald Wenger, pro se, and VeteranHope.org, on behalf of the United States of
2a
America and other veterans under similar circumstances.” The Complaint is signed by Donald Wenger (“Wenger”) and Robert Terrien on behalf of VeteranHope.org (collectively “Plaintiffs”). The Complaint purports to state claims against the State of California, and a Superior Court Judge and an attorney apparently involved in Wenger’s divorce proceedings pending in Riverside County Superior Court. Specifically, the Complaint alleges that Wenger’s benefits provided by the United States Department of Veterans Affairs (“VA”), and those of the putative class, have been improperly subjected to spousal support awards in California.
Because Local Rules 83-2.1 and 83-2.2.2 provide that a non-lawyer cannot represent an entity, a class, or the United States, the Court, on October 24, 2024, ordered Plaintiffs to show cause in writing why the claims of VeteranHope.org and Plaintiffs’ efforts to assert claims on behalf of a class and the United States should not be dismissed without prejudice. The Order to Show Cause explained that an appearance by counsel would be a sufficient response. In the same October 24, 2024 Order, the Court ordered Wenger to show cause in writing why his individual claims should not be dismissed pursuant to the Rooker-Feldman doctrine.
Plaintiffs filed a Response to the Court’s Order to Show Cause, which the Court has reviewed. Plaintiffs’ Response does not address their efforts to appear pro se on behalf of VeteranHope.org, the putative class, or the United States in a manner that violates Local Rules 83-2.2.1 and 83-2.2.2. Because neither Wenger nor Terrien is licensed to
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practice law, they cannot appear on behalf of VeteranHope.org, the putative class, or the United States. Therefore, to the extent the Complaint seeks to assert claims on behalf of anyone other than Wenger, the Court dismisses those claims without prejudice. See Flymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (“A litigant may bring his own claims to federal court without counsel, but not the claims of others. This is so because the competence of a layman is clearly too limited to allow him to risk the rights of others.”) (internal quotations and citations omitted); see also Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“It is well- established that the privilege to represent oneself pro se provided by § 1654 is personal to the litigant and does not extend to other parties or entities.”).
In response to the Order to Show Cause why Wenger’s claims should not be dismissed pursuant to the Rooker-Feldman doctrine, Plaintiffs repeat arguments contained in their Complaint about their views on the scope of federal preemption provided by 10 U.S.C. § 1408 and 38 U.S.C. § 511. Federal preemption concerning the disposition of VA benefits upon divorce is not as expansive as Plaintiffs appear to assert. The Uniformed Services Former Spouses’ Protections Act (“FSPA”), 10 U.S.C. § 1408, expressly contemplates a role for state courts in the disposition of some VA benefits in divorce proceedings. In Mansell v. Mansell, the Supreme Court explained that the FSPA “affirmatively grants state courts the power to divide military retirement pay, yet its language is both precise
4a
and limited.” 490 U.S. 581, 588, 109 S. Ct. 2023, 2028, 104 L. Ed. 2d 675 (1989). Specifically, “state courts have been granted the authority to treat disposable retired pay as community property,” but because military pay waived in order to receive veterans’ disability payments is excluded from the definition of “disposable retired or retainer pay,” state courts “have not been granted the authority to treat total retired pay as community property.” Id. at 588-89, 109 S. Ct. at 2028-29, 104 L. Ed. 2d 675.
The FSPA does not create field preemption or prevent state courts from dividing some VA benefits in divorce proceedings, instead, it “completely pre-empts the States from treating waived military retirement pay as divisible community property.” Howell v. Howell, 581 U.S. 214, 220, 137 S. Ct. 1400, 1405, 197 L. Ed. 2d 781 (2017). Nor does 38 U.S.C. § 511, which shields VA benefits decisions from judicial review, deprive a state court of jurisdiction to consider a distribution of property upon divorce that the FSPA allows the state court to make. As Wenger alleges in the Complaint, he is dissatisfied with rulings made in his divorce proceedings concerning his VA benefits. 1 According to the Complaint, “[b]eginning in 2015,” defendant James Warren, a Judge of the Superior Court, “committed multiple violations of my rights . . . by attempting to distribute my VA benefits under the color of state law and in the complete absence of jurisdiction on the subject matter of Title 38.” Wenger therefore appears to be by challenging
1. It is not clear from the Complaint if Wenger receives VA retirement benefits or if some portion of his VA benefits are disability benefits.5a
Judge Warren’s orders in Wenger’s dissolution proceeding.
The Rooker-Feldman doctrine bars federal district courts “from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004); see Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 858 (9th Cir. 2008). “The clearest case for dismissal based on the Rooker-Feldman doctrine occurs when ‘a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision . . . .’” Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007) (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)). However, the doctrine also applies where “claims raised in the federal court action are ‘inextricably intertwined’ with the state court’s decision such that the adjudication of the federal claims would undercut the state ruling or require the district court to interpret the application of state laws or procedural rules.” Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003).
In similar circumstances, federal courts have concluded that such challenges brought under the FSPA are foreclosed by Rooker-Feldman. See Casale v. Tollman, 558 F.3d 1258, 1261 (11th Cir. 2009) (“The state court clearly had jurisdiction over Casale and Tillman’s divorce, including the power to create remedies to enforce the decree. If Casale believed the state court’s result was based on a legal error, the proper response was the same one open to all litigants who are unhappy with the judgment of a trial court: direct appeal.”); see also
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Howell, 581 U.S. at 218, 137 S. Ct. at 1404, 197 L. Ed. 2d 781. As in Howell, if Wenger was dissatisfied with the rulings in his divorce proceedings, his remedy was to appeal those rulings, first through California’s appellate courts, and then potentially to the United States Supreme Court. See id. at 219-20, 137 S. Ct. at 1404, 197 L. Ed. 2d 781 (describing how Howell was appealed first to the Arizona Supreme Court and that the United States Supreme Court granted a petition for certiorari “[b]ecause different state courts have come to different conclusions on the matter”). Rooker-Feldman precludes Wenger from instead instituting this new action in the District Court seeking review of the rulings in his divorce proceedings.
For all of the foregoing reasons, the Court dismisses the claims asserted by VeteranHope.org and the claims asserted on behalf of the putative class and the United States without prejudice. The Court also concludes that it lacks subject matter jurisdiction over Wenger’s individual claims because he is seeking relief from decisions rendered by the state court in his divorce proceedings. See Kougasian, 359 F.3d at 1139 (“Rooker-Feldman requires that the district court dismiss the suit for lack of subject matter jurisdiction.”). The Court therefore dismisses Wenger’s claims for lack of subject matter jurisdiction without prejudice. The Court will issue a Judgment consistent with this Order.
IT IS SO ORDERED.
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APPENDIX C
Text from Exhibits in Doc. #1 proving federal preemption
Exhibit A
Legal Evidence of 38 U.S.C. § 211 prior to the Veterans Judicial Review Act as read by the Supreme Court in Rose v. Rose.
Laws of 1982 Title 38 Section 211 Before the VJRA As read by the Supreme Court in Rose v. Rose 1987
(a) On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or Jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.
U.S. Code 1982 Edition, Title 38: §§ 201-246.
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Exhibit B
Summary of Rose v. Rose showing the holding and the ruling on 38 U.S.C. § 211
Held: A state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, even if the veteran's only means of satisfying this obligation is to utilize veterans' benefits received as compensation for a service- connected disability. The Tennessee statute, as construed by the state courts to authorize an award of disability benefits as child support, is not pre-empted under the Supremacy Clause of Article VI since it does not conflict with federal law.
~
(b) Title 38 U.S.C. § 211(a), which provides that VA decisions on benefits for veterans and their dependents are final, conclusive, and not subject to review by any other federal official or federal court, does not vest exclusive jurisdiction in the VA nor pre-empt state-court jurisdiction to enforce a veteran's child support obligation. Section 211(a) makes no reference to state-court jurisdiction.
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Exhibit C
Legal Evidence of the Veterans Judicial Review Act amendment of 38 U.S.C. § 211
Public Law 100-687
100th Congress
SEC. 101. DECISIONS BY ADMINISTRATOR.
(a) MATTERS TO BE DECIDED BY ADMINISTRATOR. —Subsection (a) of section 211 is amended to read as follows:
(a)(1) The Administrator shall decide all questions of law and fact necessary to a decision by the Administrator under a law that affects the provision of benefits by the Administrator to veterans or the dependents or survivors of veterans. Subject to paragraph (2) of this subsection, the decision of the Administrator as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
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Exhibit D
Legal Evidence of 38 U.S.C. § 211 after the Veterans Judicial Review Act
This statute controlled jurisdiction on Title 38 from 1989 to September 1, 1991 when § 511 became effective.
Laws of 1988 Title 38, Section 211 After the VJRA § 211.
"Decisions by Administrator, opinions of Attorney General (a)(1) The Administrator shall decide all questions of law and fact necessary to a decision by the Administrator under a law that affects the provision of benefits by the Administrator to veterans or the dependents or survivors of veterans. Subject to paragraph (2) of this subsection, the decision of the Administrator as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. (2) The second sentence of paragraph (1) of this subsection does not apply to- (A) matters subject to section 223 ' of this title; (B) matters covered by sections 775 and 784 of this title; (C) matters arising under chapter 37 of this title; and (D) matters covered by chapter 72 of this title." U.S. Code 1988 Edition, Title 38: §§ 201-246.
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APPENDIX D
Table of Similar Cases
1) William R. Lott v. Maria V. Lott,
US Supreme Court No. 24-1160
(Cert. denied 10/6/2025)
The veteran asked this Court to answer the Constitutional Questions about whether the Virginia court disobeyed the rulings of this Court in McCarty, Mansell and Howell, completely reinventing the USFSPA with no jurisdiction to change the “plain and precise language” of 10 U.S.C. § 1408(a)(4)(A)(ii).
2) Jeremy N. Miller v. Casi A. Miller,
US Supreme Court No. 24-1313
(Cert. denied 10/6/2025)
The veteran asked this Court to answer Constitutional Questions about whether the Tennessee court is bound by the complete preemption of state jurisdiction established by the VJRA and expressed in current positive law 38 U.S.C. § 511. The Tennessee Courts claim to be bound by the Rose v. Rose decision instead of the plain text of 38 USC 511 pursuant to the Constitution.
3) Michael B. Yourko v. Lee Ann B. Yourko,
US Supreme Court No. 23-999
(Cert. denied 10/7/2024)
The veteran asked this Court to answer Constitutional Questions about whether the Virginia courts violated federal preemption by ruling that state contract law would override the USFSPA and the VJRA.
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4) Erich M. Martin v. Raina L. Martin,
US Supreme Court No. 23-605
(Cert. denied 10/7/2024)
The veteran asked this Court to answer Constitutional Questions about whether the Nevada courts violated federal preemption by ruling that state contract law takes precedent over the plain text of the USFSPA.
5) Ray James Foster v. Deborah Lynn Foster,
US Supreme Court No. 22-1089
(Cert. denied 10/2/2023)
The veteran asked this Court whether the Michigan courts used the doctrines of res judicata and collateral estoppel to circumvent the USFSPA and the VJRA where it is also clear that CRSC is NOT retired pay in the first place, thereby NOT open to state court authority.
6) Kevin Lee Boutte, Petitioner v. Yvonne Renea Boutte,
US Supreme Court No. 21-44
(Cert. denied 10/4/2021)
The veteran asked this Court whether the Louisiana courts used the doctrines of estoppel and res judicata to circumvent the USFSPA and the VJRA.
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