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1. In this case, in which a taxpayer did not explicitly challenge a state tax statute as being repugnant to the Federal Constitution, treaties or statutes, but challenged a local tax assessment on the ground that it infringed the taxpayer's federal rights, privileges or immunities, this Court did not have jurisdiction under 28 U.S.C. 1257 of an appeal from a decision of a state Supreme Court sustaining the validity of the tax; but the appeal was treated under 28 U.S.C. 2103 as a petition for certiorari, and certiorari was granted. Pp. 629-630.
2. Certain real estate owned by the Reconstruction Finance Corporation and subjected by 8 of the Reconstruction Finance Corporation Act to state and local taxation was declared surplus and surrendered to the War Assets Administration for disposal under the provisions of the Surplus Property Act of 1944, which, inter alia, authorized the War Assets Administration and its successor, the General Services Administration, to make disposition of the property on such terms as it saw fit and to execute and deliver all necessary papers incident to transfer of title. Held: Even before execution of a quitclaim deed transferring title from the Reconstruction Finance Corporation to the United States, such real estate had ceased to be subject to state and local taxation as "real property of the Reconstruction Finance Corporation," even though the property was leased to a private lessee in the name of both the Reconstruction Finance Corporation and the United States. Pp. 630-636.
51 Cal. 2d 759, 336 P.2d 521, reversed.
Leroy A. Wright argued the cause and filed a brief for appellant.
Myron C. Baum argued the cause for the United States, as amicus curiae, urging reversal. On the brief were Solicitor General Rankin, Assistant Attorney General Rice and John J. McCarthy.
The question to be decided is whether real property declared to be surplus under the Surplus Property Act of 1944, 58 Stat. 765, but the record title to which is in the Reconstruction Finance Corporation, continues to be subject to local taxation under the exemption of 8 of the Reconstruction Finance Corporation Act, 47 Stat. 5. 1 The Supreme Court of California and the Supreme Court of Michigan 2 have held that it does. The Court of Claims has reached the opposite conclusion. 3 In view of this conflict we agreed to hear this case, but postponed consideration of the question of jurisdiction to the hearing on the merits. 361 U.S. 859 .
On the question of jurisdiction, we believe that appellant did not make the required "explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws. . . . And it has long been settled that an attack [362 U.S. 628, 630] upon a tax assessment or levy, such as [appellant] here made, on the ground that it infringes a taxpayer's federal rights, privileges, or immunities, will not sustain an appeal . . . ." Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185 (1945). 4 The appeal is therefore dismissed. While the case is not properly here by appeal, we treat the same as a petition for certiorari under 28 U.S.C. 2103. 5 The petition is granted. On the merits, we conclude that the property involved is not within the waiver provision of the federal Act.
The language of 8 of the Reconstruction Finance Corporation Act was borrowed from earlier federal legislation dealing with federal financial institutions. 6 The congressional policy appears to have been to waive tax [362 U.S. 628, 631] exemption on real property owned by government corporations whose functions were primarily financial in nature. Originally conceived for the purpose of making loans to distressed business concerns, the Reconstruction Finance Corporation was in this category. Apparently Congress was concerned that property obtained by the Corporation through its financial operations in aid of economic recovery policies would lose its taxable status. Through 8, therefore, Congress preserved the right of state and local governmental bodies to tax property even though it came into the hands of the Corporation. Success crowned the economic efforts of the Corporation, and, as the country approached the critical period immediately preceding its entry into World War II, Congress in 1940 extended the Corporation's functions to include the stockpiling of critical supplies and the operation of plants engaged in the manufacture of war material. 54 Stat. 573. It was soon apparent that large tracts of land would be necessary in this operation, and the waiver was extended to the real estate holdings of the Defense Plant Corporation, a subsidiary of the Reconstruction Finance Corporation. 55 Stat. 248.
The termination of the war quickly threw substantial portions of such property into disuse, there being no further need for the mass production of war material. The President created the War Assets Administration for the purpose of disposing of all government surplus property. 7 After March 25, 1946, government agencies possessing property surplus to official needs were required so to declare it and to transfer it to the Administration for disposal. 8 By declaration of May 29, 1946, the Reconstruction Finance Corporation declared the subject property to be surplus to its needs and responsibilities. Under [362 U.S. 628, 632] the Surplus Property Act, this declaration transferred 9 to the War Assets Administration the functions of: caring for and handling the property pending disposal ( 3 (g) and 6); making disposition of the property on such terms as it saw fit ( 9 (b) and 15 (a)), including donation under certain conditions ( 13 (b)), and the power of execution and delivery of all necessary papers incident to transfer of title ( 15 (b)). It further provided that all funds derived from such disposition would be covered into the United States Treasury as miscellaneous receipts ( 30 (a)). Pursuant to this declaration by the Reconstruction Finance Corporation, the War Assets Administration took possession of this property on May 29, 1946, and its successor, the General Services Administration, 10 retained possession until September 1, 1949, during which period the property was used as a storage depot and a sales center for surplus property held by the Administration. On the latter date, the property was leased to appellant's predecessor. The lease described the lessor as the "Reconstruction Finance Corporation . . . and the United States of America, both acting by and through the General Services Administrator under . . . the Surplus Property Act of 1944."
Appellees assessed ad valorem real property taxes on the realty against the Reconstruction Finance Corporation, as owner, for the fiscal tax years 1951 to 1955, inclusive. Appellant paid the taxes 11 and filed this suit after claims for refund had been denied. The trial court [362 U.S. 628, 633] entered judgment against appellant. On appeal, the Supreme Court of California affirmed the judgment of the trial court, and denied the claim for refund. 51 Cal. 2d 759, 336 P.2d 521.
There would be no question as to the exemption of the real property involved had the record title been in the name of the United States. Since March 17, 1955, in fact, it has been so recorded; on that date the Reconstruction Finance Corporation executed and recorded a quitclaim deed to the United States.
The Supreme Court of California correctly posed as the underlying question, "whether the land ceased to be `real property of the' Reconstruction Finance Corporation" after it was declared surplus and became subject to the provisions of the Surplus Property Act of 1944. That court found that, since no deed was executed transferring title out of the Reconstruction Finance Corporation until 1955, it remained "property of the Corporation" and hence subject to taxation until that time. We believe the court placed too much reliance on the fact that the bare record title to the property remained in the name of the Corporation.
It appears to us that the purpose of the waiver provision was to permit taxation of real property being used by the Reconstruction Finance Corporation in the performance of its functions. Such use was terminated when the property was declared surplus in 1946. At that time another agency of the Government took both the occupancy and complete control of the property for the purpose of management and disposition. The Reconstruction Finance Corporation, under the specific provisions of the Surplus Property Act, thereby lost all power and control over the property, which came into the hands of the Administrator for the account of the United States, any proceeds therefrom being ordered paid into the United States Treasury. Thereafter, the Administrator elected, [362 U.S. 628, 634] as he had the statutory power to do, to lease the property to appellant's predecessor. The real property, however, remained in the account of the United States, not the Reconstruction Finance Corporation. As the Supreme Court of California recognized, the general rule is "that lands owned by the United States of America or its instrumentalities are immune from state and local taxation." We think that the land here was "owned" by the United States.
We believe that California overlooks the fact that, while the 1949 lease was formally made in the name of both the United States and the Reconstruction Finance Corporation, as lessors, it recited on its face that the property was "surplus property of the Government of the United States" and subject to the Surplus Property Act of 1944. Furthermore, this lease noted that the property had "been assigned to War Assets Administration for disposal," and that "the Department of Air Force has determined that the use of the leased premises by the Lessee herein is necessary for the production of military equipment for the National Defense." Moreover, the property had been occupied by the War Assets Administration during the two years immediately preceding its lease. The appellees' contention seems to be that, since the lease was in the name of the Reconstruction Finance Corporation as well as the United States, the land was "property of the Corporation." We hardly think such a conclusion inevitable. We believe that the appropriate test would turn on practical ownership of the property rather than the naked legal title. This is the more necessary with respect to public property where the record title may often be in a government agency or department - or, for that matter, in an official of the Government - rather than in the name of the United States. Here the Reconstruction Finance Corporation had no proprietary interest in the property, no possession or control thereof, was performing none of [362 U.S. 628, 635] its functions with regard thereto, and could receive none of the income or future benefits therefrom. Even though it held the record title, such holding, under the circumstances here, could be only for the benefit of the United States. All of the incidents of beneficial ownership ended by the express mandate of the statute when the property was declared surplus and transferred to another agency for disposition.
When confronted with the same issue as presented by the instant case, the Court of Claims reached a conclusion directly contrary to that of the Supreme Court of California. Board of County Comm'rs of Sedgwick County v. United States, 123 Ct. Cl. 304, 105 F. Supp. 995. The Court of Claims there noted that, after the declaration of surplus, the Reconstruction Finance Corporation had no "physical possession, control, or custody of the property. It had neither the use nor the right to use the property." The court went on to conclude that "[t]here is no indication that Congress intended to waive immunity from taxation under these circumstances." 123 Ct. Cl., at 324, 105 F. Supp., at 1001. We agree with the Court of Claims "that the cloak of immunity descended upon the property [when it was declared surplus] and no tax liability for the property could arise thereafter." 123 Ct. Cl., at 324, 105 F. Supp., at 1002.
Since the crucial element is the intent of Congress, it is important to note the enactment of a 1955 statute providing the States relief from the effects of federal immunity. 40 U.S.C. 521-524. The congressional declaration of purpose in that statute "recognizes that the transfer of real property having a taxable status from the Reconstruction Finance Corporation . . . to another Government department has often operated to remove such property from the tax rolls . . . ." "Transfer" was defined to include "a transfer of custody and control of, or accountability for the care and handling of," the property, [362 U.S. 628, 636] as well as "transfer of legal title." The statute goes on to provide for certain payments in lieu of taxes where such a transfer occurs. The relevance of this statute lies in a congressional sanction of the rule of the Sedgwick County case, construing the waiver provision.
We cannot say that Congress in 1932 intended to waive the tax exemption on "real property of the Corporation" after the Corporation found the property surplus to its needs and responsibilities and transferred it to another agency, for management and disposition as United States property. To say that the Government's land remained taxable merely because no formal deed was executed transferring title, either to itself or any of its designated agencies, would but make a local tollgate of a technicality.
Nor can we agree that the short administrative practice claimed here continued the waiver in effect. Even if the responsible agency had permitted the paper title to the Government's property to remain in the Reconstruction Finance Corporation for the sole purpose of allowing it to be taxed, the congressional mandate in the Surplus Property Act of 1944 could not be overridden. As to such matters, any adjustments between the federal and the local governments are strictly legislative ones for the Congress, United States v. City of Detroit, 355 U.S. 466, 474 (1958), and not within the discretion of the executive agencies.
The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.
[ Footnote 1 ] Section 8 (as amended): ". . . any real property of the Corporation shall be subject to . . . State, Territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed." 61 Stat. 205; 15 U.S.C. 607.
[ Footnote 2 ] Continental Motors Corp. v. Township of Muskegon, 346 Mich. 141, 77 N. W. 2d 370.
[ Footnote 3 ] Board of County Comm'rs of Sedgwick County v. United States, 123 Ct. Cl. 304, 105 F. Supp. 995. In a case involving property in a similar posture, the Ninth Circuit reached a result in accord with Sedgwick County, and contrary to the California and Michigan courts. United States v. Shofner Iron & Steel Works, 168 F.2d 286. In Shofner, the ultimate issue was not tax immunity, but ejectment of a defendant from government property.
[ Footnote 4 ] 28 U.S.C. 1257 provides: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: . . . . . "(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. "(3) By writ of certiorari, . . . where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of . . . the United States."
[ Footnote 5 ] 28 U.S.C. 2103: "If an appeal to the Supreme Court is improvidently taken from the decision of the highest court of a State in a case where the proper mode of a review is by petition for certiorari, this alone shall not be ground for dismissal; but the papers whereon the appeal was taken shall be regarded and acted on as a petition for writ of certiorari and as if duly presented to the Supreme Court at the time the appeal was taken. . . ."
[ Footnote 6 ] See 13 Stat. 99, 111, 12 U.S.C. 548 (national banking associations); 38 Stat. 251, 258, 12 U.S.C. 531 (Federal Reserve Banks); 39 Stat. 380, 12 U.S.C. 931, 933 (Federal Land Banks); 42 Stat. 1469, 12 U.S.C. 1261 (National Agricultural Credit Corporation).
[ Footnote 7 ] See Exec. Order No. 9689, dated Jan. 31, 1946, 11 Fed. Reg. 1265.
[ Footnote 8 ] See Surplus Property Act of 1944, 58 Stat. 765.
[ Footnote 9 ] The Act did not require the execution of a deed to the Administration.
[ Footnote 10 ] As of July 1, 1949, Congress transferred all of the functions of the War Assets Administration to the General Services Administration. See Federal Property and Administrative Services Act of 1949, c. 288, 63 Stat. 377.

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You can trust us with your personal data! The data is encrypted by digital security systems and transmitted to us. Our websites are protected by technical measures against damage, destruction, or unauthorized access.
Responsible for data processing on this website is Scherzinger Pumpen GmbH & Co. KG.
The subject of data protection is personal data. These are according to Art. 4, § 1 GDPR. This includes e.g. information such as name, postal address, email address or telephone number, and if applicable also usage data such as your IP address.
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We also take the company’s internal data protection very seriously. Our employees and service providers contracted by us are sworn to secrecy and to comply with data protection regulations.
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Within our online shop and in the registration form for repairs and complaints, we process data based on Art. 6 Sect. 1 lit. b (Fulfillment of Contract). The processing occurs for the purpose of the performance of contractual services within the context of the operation of an online shop, accounting, delivery and customer services. In this case, we use session cookies for storage of the shopping cart contents and permanent cookies for storage of the login status.
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The deletion occurs after the expiration of legal warranty obligations and similar obligations. The necessity of the retention of the data is reviewed every three years; in the case of legal archiving obligations, the deletion occurs after their expiration (end of the retention period in accordance with German commercial law (6 years) and German tax law (10 years)).
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We point out that data from users outside the European Union can be processed here as a result. In this, there are risks for the users because this can, for example, impede the implementation of user rights. With regard to the US service providers certified under the privacy shield, we indicate that they are obligated to adhere to the data protection standards of the EU.
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The processing of the users’ personal data transpires on the basis of our legitimate interests in effective information of the users and communication with the users in accordance with Art. 6 Sect. 1 lit. f. of the General Data Protection Regulation (GDPR). If the user is requested by the respective platform provider for consent to the data processing previously described, the legal basis for the processing is Art. 6 Sect. 1 lit. a., Art. 7 of the GDPR.
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- Xing (XING AG, Dammtorstrasse 29-32, 20354 Hamburg, Germany) – Privacy Statement/ Opt-Out: https://privacy.xing.com/de/datenschutzerklaerung.

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In the recent Missouri Court of Appeals for the Western District case of State ex. rel. Feltz v. Bob Sight Ford, Inc.,the Court held that surveillance videotapes are discoverable to a workers’ compensation claimant without a showing of undue hardship under Rule 56.01(b)(3).
Injured worker Feltz filed a workers’ compensation claim against his employer, Bob Sight Ford (hereinafter “Ford”) after tripping on a stairwell carpet. During the course of litigation, Feltz notified Ford that he intended to take the deposition of Ford’s insurance adjuster. Further, Feltz issued a subpoena duces tecum ordering the insurance adjuster to produce any and all video surveillance held by Ford under Missouri Revised Statute §287.560. Ford, in turn, moved to quash the deposition and subpoena duces tecum arguing that surveillance video is not considered a “statement” requiring production under RSMo. §287.215. The Administrative Law Judge (ALJ) sustained Ford’s motion.
Feltz appealed to the Circuit Court which held that surveillance videotapes are not discoverable by an employee under RSMo. §287.215, as such statute is effectively a statutory work product exception. However, the subpoena at issue was not brought pursuant to RSMo. §287.215, but under RSMo. §287.560 which authorizes workers’ compensation proceedings to be conducted in the same manner as civil matters in circuit court. Accordingly, Rule 56.01 governs general discovery in civil matters and allows a party to obtain without the required showing [of undue hardship] a prior statement made by that party also defined as a[n] audio, video, motion picture or other recording.
Interestingly, Rule 56.01 only applied in this particular case because Claimant requested the surveillance videotapes through a subpoena duces tecum pursuant to §287.560. Had Claimant made his request pursuant to RSMo. §287.215, the result would differ as §287.215 specifically excludes videotapes from its definition of “statement” and also clearly indicates the definition provided “applies to the term ’statement’ as used in RSMo. §287.215 and does not apply to other statues, like RSMo. §287.560.
In sum, if a Claimant wants to compel discovery of the employer/adjuster’s surveillance video, they need only issue a subpoena duces tecum under RSMo. §287.560.


Art. Jeffrey Hayzlett is full of insight into the issues. 25 “Management of pension reserves and investing pension funds,” Federal Law “On Private Pension Funds” dated May 7, 1998 75-FZ, n.
6: “6. At placing funds in the pension reserve fund residential property must provide the authorized federal body of data on the assessment of real property by an independent appraiser, who is licensed to carry out this activity in accordance with the requirements established by legislation of the Russian Federation. ” 11. Art. 3.27 “Secured Bonds” Federal Law “On the securities “of April 22, 1996 39-FZ, n. 1:” … Get all the facts for a more clear viewpoint with THE HAYZLETT GROUP. The property, which is the subject of mortgage bonds secured by a pledge, should be evaluated by the appraiser. ” 12.
Art. 10 “Mutual fund cooperative” federal law “On production Cooperatives “May 8, 1996 41-FZ, paragraph 2:” … Evaluation of share contribution in excess of two hundred and fifty by federal law the minimum wage should be done by an independent appraiser. ” 13. Art. 2 “PSA” of the Federal Law “On Production Sharing Agreements” dated December 30, 1995 225-FZ, paragraph 4 “… Subsoil user prior to the date of the auction must submit to the authority which issued the license to use subsoil, the evaluation report of the property complex, inextricably linked to the right of subsoil use, produced by an independent appraiser conducting its activities in accordance with Russian legislation and the draft contract for the sale of the property complex in whole or in part. ” 14.
To carry out this activity involves the bankruptcy trustee independent appraisers and other professionals with payment for their services at the expense of the debtor's property, unless another source of payment are not set by the creditors meeting (the creditors' committee). Assessment of the debtor's property by an independent appraiser, unless otherwise stipulated by this Federal Law … 2. Property of the debtor – the debtor or a unitary enterprise – joint stock company, over twenty-five percent of the voting shares of which are state or municipal property, assessed by an independent appraiser with the idea of making a state financial control body for the assessment, except provided for in paragraph 3 of this article. 3.
Based on the decision of the meeting of creditors or the creditors' committee evaluation of movable property of the debtor, book value of the last reporting date prior to bankruptcy is less than one hundred thousand, can be carried out without the involvement of an independent appraiser. " Art. 139 "Sale of the assets of the debtor," section 5: "5. The initial selling price of the property put up for auction the debtor is determined by an independent appraiser, unless otherwise stipulated by this Federal Law. " Art. 179 "features the sale of property and property rights, agricultural organizations": "… The advantage of right to acquire the assets of the debtor are persons engaged in the manufacture or production or processing of agricultural products and owning a parcel of land immediately adjacent to the land portion of the debtor.
3. The liquidator in the sale referred to in paragraph 2 of this property and property rights required to conduct an independent valuation of property and property rights and to offer persons referred to in paragraph 2, to acquire property and property rights appraised value. " Art. 207 "Consideration of the arbitration court of the bankruptcy case of a citizen", Section 1: "… Interim Manager to consideration by the arbitral tribunal of the bankruptcy case provides an independent assessment of the debtor's property …. " Art. 222 "Procedures for the sale of property and property rights of peasant (farmer) facilities": "2. Preemptive right to acquire property of a peasant (farmer's) economy are those engaged in agricultural production and owning land directly adjacent belonging to the peasant (individual) farm land. 3. The liquidator in the implementation referred to in paragraph 2 of this property and the property rights of peasant (individual) management is obliged to conduct an independent valuation of property and property rights and to offer individuals referred to in paragraph 2 of this article, buy property and proprietary rights of the appraised value. "
The estimate for inheritance purposes Art. 1115 “The Place of opening the inheritance,” the third part of the Civil Code: “… The value of the property is determined on the basis of its market value.” Art. 1172 “Measures for the Protection of heritage,” the third part Russian Civil Code: “1. For the protection of heritage notary performs an inventory of the estate, in the presence of two witnesses … In the production of inventory may be present executor, heirs and appropriate representatives of the guardianship authority. According to the persons referred to in the second paragraph of this paragraph shall be by agreement between the heirs of the estate assessed.
In the absence of an agreement rating of the estate or any part thereof in respect of which no agreement is reached, is made by an independent appraiser at the expense of the person demanded assessment of the estate, with subsequent distribution of these costs among the heirs in proportion to the value received by each of them an inheritance … “. Art. 5 “The order of calculation and payment of tax,” federal law “On taxes on property rolling through inheritance or donation “from December 12, 1991 2020-1, Clause 2:” 2. Assessment of housing (apartments), cottages, garden shed, passing into the ownership of an individual by way of inheritance or gift is made bodies of public utilities or insurance.
Assessment of means of transport insurance, and other organizations who have the right to perform these actions. Assessment of other property performed by experts. ” 7. Privatization of State and Municipal Property (Federal Law “On privatization of state and municipal property” of 21 December 2001 178-FZ), Art. 12 “Pricing subject to privatization of state or municipal property, “Section 2:” 2. The initial price of the privatized state or municipal property is set in the cases provided for in this Federal Act on the basis of the evaluation report of the state or municipal property, prepared in accordance with Russian legislation on valuation activities.


Rivera v. Google, a recent federal court decision from the Northern District of Illinois, highlights how challenges to Article III standing are a versatile and useful tool for corporate defendants in privacy and cybersecurity litigation. At the same time, the litigation underscores the significant legal risk faced by entities that collect biometric information and the consequent need to proactively assess and mitigate that risk.
In recent years, some legislatures have sought to codify the protection of biometric information that is collected by private companies. To that end, Illinois, Texas, and Washington each have statutes aimed at regulating the collection, use, and retention of biometric information, and New York City is currently considering a bill with similar impact.
Though each statute has had notable effect on businesses operating within these jurisdictions, the Illinois Biometric Information Privacy Act (“BIPA”) is generally regarded as the most stringent among the three state laws. In particular, BIPA regulates how an individual’s “retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry” or any information based on an individual’s biometric identifier used to identify an individual may be used, stored, and disposed of by private entities (defined broadly). The law requires that entities collecting or possessing biometric information or identifiers inform consumers of the content and purpose of the company’s data collection and maintain retention schedules and disposal guidelines, among other obligations and restrictions. Further, BIPA provides for a private right of action to persons “aggrieved by a violation” of the Act. BIPA actions are subject to statutory damages of $1,000 per violation or $5,000 if the violation is deemed intentional or reckless. Due to its scope and the possibility of statutory damages, BIPA has formed the basis of several high-stakes consumer class actions across the United States.
One such action is Rivera, where two individuals—one a Google Photos user, the other not—filed suit claiming that the face-recognition feature of Google Photos violated BIPA. No. 16-02714 (N.D. Ill. Dec. 29, 2018). They asserted that Google violated the Act by applying its face-recognition program to images of them without their knowledge or consent. They characterized their harm as an injury to their privacy interests, but conceded that they had not suffered financial, physical, or emotional harm apart from feeling offended by the allegedly unauthorized collection of their scans. Google argued that the court lacked subject matter jurisdiction over the case because plaintiffs lacked a concrete “injury in fact” sufficient for standing under Article III of the U.S. Constitution.
In analyzing Google’s argument, the Rivera court cited Spokeo v. Robins, 136 S. Ct. 1540 (2016), for the proposition that while intangible injuries may satisfy the concrete injury requirement of Article III, a “bare procedural violation” of a statute is not sufficient to establish standing. The court then examined the ways in which plaintiffs claimed they were harmed—first, by collection of the information, and second, by retention of that information—and ultimately determined that neither alleged sufficient harm.
In regard to retention, the court applied Gubala v. Time Warner Cable, Inc., 846 F.3d 909 (7th Cir. 2016), and found that because only Google and the private users had access to the scans, and there had been no unauthorized access to the data, Google’s allegedly improper retention of the data did not cause plaintiffs a concrete harm.
Regarding the manner of collection, the court deemed the Article III analysis a “much closer question.” It noted a dearth of comparable precedent on the question of whether the alleged collection of facial scans without consent satisfies Article III. The court thus proceeded to evaluate factors set forth in Spokeo relevant to whether an intangible injury gives rise to Article III standing—namely, (1) whether legislative judgments supported plaintiffs’ claimed injury and (2) whether the claimed injury bears a close relationship to injuries that have traditionally been regarded as providing a basis for a lawsuit in U.S. and English courts. As to the first factor, the court observed that the only specific injury-related concern described by the Illinois legislature when enacting BIPA was the risk of identity theft, yet plaintiffs presented no evidence that Google’s alleged collection of facial scans created a substantial risk of identity theft. As to the second factor, plaintiffs identified no common law torts that bore a close relationship to the collection of facial scans without consent. Consequently, the Rivera court determined that Google was entitled to summary judgment because plaintiffs simply could not establish standing under Article III. In so holding, the court departed from the conclusion of an analogous case, Patel v. Facebook, Inc., 290 F. Supp. 3d 948 (N.D. Cal. 2018), which upheld the Article III standing of consumers who alleged that Facebook applied facial-recognition software to create facial templates without consent. The Patel litigation is now pending in the Ninth Circuit.
The Rivera decision has several important takeaways for companies that collect or use personally identifiable information.
Article III remains a powerful tool for defendants in privacy and cybersecurity litigation, though courts have divided over whether and when plaintiffs have standing in these cases. In part, the division is due to disparate applications of the Supreme Court’s Spokeo decision. The Supreme Court may clarify the Spokeo standard this spring in separate litigation against Google pending before the Court, In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir. 2017), cert. granted sub nom. Frank v. Gaos, No. 17-961 (U.S. Apr. 30, 2018).
Article III challenges may be raised at any time. Because such challenges relate to the court’s subject matter jurisdiction, they are never waived. As such, parties are always free to raise Article III objections, regardless of the stage of litigation. 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure §3531.15 (3d ed. 2008). Indeed, Google did not raise Article III at the motion to dismiss stage in the Rivera litigation and then successfully argued the issue at summary judgment.
Keep in mind, however, that Article III is not the only injury-related argument that defendants can raise in privacy and cybersecurity litigation. Rather, there are two separate and independent ways to attack plaintiffs’ injury allegations. One is to challenge Article III standing in federal court (or the state court equivalent, if in state court), which is what the Rivera court addressed. The other is to argue the plaintiffs fail to plead or prove the injury or damages required by the cause of action or statute in question. BIPA, for instance, permits private actions only by someone who has been “aggrieved by a violation” of the statute. The question of what, if any, injury a plaintiff must plead and prove (separate and apart from being the subject of a violation of the statute) to establish that he or she is “aggrieved” is currently pending before the Illinois Supreme Court in Rosenbach v. Six Flags, No. 123186.
Despite the usefulness of injury-related and other challenges in BIPA litigation, companies collecting or using biometric data continue to face significant risk. As a district court opinion, of course, Rivera is not binding precedent. Moreover, the Rivera court enumerated several litigation risks in the BIPA context by specifically carving them out from the scope of its holding. For example, the court left open the questions of whether and when a BIPA plaintiff might establish Article III standing in a context where the company “monetizes” biometric data, uses APIs to share that data, or suffers a breach that permits third parties unauthorized access to the data. The court also left open the question of standing in situations where the biometric data collected is something other than facial scans. And even when a company successfully wins dismissal of litigation, that dismissal cannot undo the costs and burdens of having been sued. Companies with potential exposure to BIPA or other biometric statues should work with experienced counsel to evaluate and, as appropriate, mitigate the risks of enforcement.
 According to the court, the face-recognition technology works as follows: When a user uploads a photo, Google detects images of faces in that photo, scans them, and creates face templates for what it observes. It then compares the new images with other faces that are already in the user’s private account, and groups together the faces that are similar. Although the user who uploaded the photo can see and assign a label to these face groupings, the templates and subsequent information added by the user are only available to that user and Google. Of note, however, the face-recognition feature is automatically defaulted to “on,” such that all Google Photos users’ photos are always analyzed this way, unless they opt out.
 Rivera, who was not a user of Google Photos, alleged that eleven photos of her were taken by someone using a Google Droid device, uploaded to Google Photos, and then scanned by Google to “locate [ ] her face and zero [ ] in on its unique contours to create a ‘template’ that maps and records her distinct facial measurements.” Weiss, the other plaintiff, alleged that he used a Droid device, and twenty-one photos he took of himself were automatically uploaded to and scanned on Google Photos. Notably, Google did not concede that the scans were taken without consent.
 The Rivera court limited its holding by distinguishing between faces, which are not inherently private given that “most people expose their faces to the general public every day,” and biometric data like fingerprints and retina, that are not publicly visible.
This entry was posted in Class Actions, Data Privacy, Technology and tagged Article III, Biotmetric Information, BIPA, Injury in fact, Standing. Bookmark the permalink.


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The cavernous, wooden-panelled room was a relic from the apex of the former Papal States of Sanctaria, but the Old Courthouse in Nicene was the perfect venue for the Truth and Reconciliation Commission's hearings and judgements. Nicene, the capital of the Sanctarian state of Galvium, was an old port city, and one of the largest within the Divine Federation. Legend has it that it was at Nicene the first Patriarch of the Sanctarian Catholic Church, Julius, landed and began would would be a millenium-long dominance of the western Hespian continent. In the twenty-first century, however, the city would instead of birthing a warmongering theocratic state, would seek to resolve peace within a far off state in the region of the International Democratic Union.
Chosen for this task by the Group Special Envoy, Robert Smyth, was Sylvia Churcher, an experienced Sanctarian jurist. Many court reporters called her firm but compassionate, but Churcher's love was for facts. She understood the important of proportional responses, but to find out the facts was her main priority. It made her a natural choice for the role of Chief Judge of the Commission.
The stage was set. The adjudicator was in position. And the players were here too. At noon exactly, the courtroom doors were opened by bailiffs of the Sanctarian Court System, on secondment to the Commission. Parties from both sides of the conflict were seated amongst each other in the audience gallery, while the tables normally reserved for the prosecution and defence were empty; between them stood a strongly built, solid wood podium, something usually missing from a courtroom. Empty too was the imposing bench at which the Chief Judge would sit. Below sat the Clerk of the Commission, who, at 15 minutes past the hour, rose and solemnly declared "Oh yea, Oh yea. All rise for the Right Honorable, the Chief Judge Sylvia Chucher CLR, presiding judge of the Truth and Reconciliation Commission". The scrapes of chairs against floors was high-pitched and slightly painful to those with sensitive hearing, but all parties obliged. Not yet was the time for grandstanding, many of them thought.
Churcher walked slowly to her chair with its overview of the entire room. At 69, Churcher wasn't necessarily old, but she had been looking forward to her retirement before being called back to the bench for this final adjudication. Her brown eyes were dark, impenetrable pools of wisdom, and her poker face was second to none. This would not be an easy judge for the participants to read. Taking her seat, she nodded to the Clerk who ordered all present to sit down, and then began the proceedings.
"The Rt. Hon. Chief Judge Churcher requests those who have business before the court to approach the podium and submit their grievances for the resolution of the court. Parties shall be called in order to submit, briefly, who they represent, and what party they claim to have grievances with. No arguments shall be presented at this time, the court simply requires the aggrieved name, the alleged aggressor's name, and a brief summation of the grievance in question. Alleged aggressors may be both state and non-state actors. I invite the provision government of Lauchenoiria to begin". The Clerk a seat, and Churcher took up her pen, eagerly anticipating the beginning of what she hoped would be the final conclusion to the Lauchenoirian conflict.
Tomás Arenas had begun his career during the time of the authoritarian communist regime in Lauchenoiria, and continued it under liberal capitalism just the same. What mattered to Arenas was justice. And when the provisional government asked him to present their cases to the Truth and Reconciliation Commission, he was all too willing to oblige.
Arenas approached the podium as asked.
“Thank you, your honour,” he said, then took a deep breath. The list of grievances submitted by the provisional government was rather long.
“Firstly, the Provisional Government of Lauchenoiria would like judgement cast against the Republic of Conternia for orchestrating the bombing of Melissa City Police Department and the kidnapping of Professor Michael Antonin. Secondly, the same party would like judgement cast against Ezra Griffiths, former Prime Minister of Conternia, for approving these terrorist activities in Melissa City.
Thirdly, the same party would like judgement cast against the Matriarchy of Kerlile for orchestrating the widespread mistreatment and torture of numerous Prisoners of War. Fourthly, the same party would like judgement cast against President Joanna Greenwood for orchestrating numerous activities leading to the death of innocent parties. Fifthly, the same party would like judgement cast against Lucia Casci, former Kerlian Defence Secretary, for orchestrating the kidnapping of civilian males across Yervia and Ulinaria provinces.
In addition, the same party would like judgement cast against Councillor Anita Patel for orchestrating the mistreatment of prisoners of war. The same party would like judgement cast against Councillor Pauline Pierre for orchestrating the attempt to covertly seize control of the Lauchenoirian government by Kerlile. Furthermore, the same party would like judgement cast against Charissa Clarke, for numerous actions, including the attempt to take over our government on behalf of Kerlile.
The provisional government of Lauchenoiria would also like judgement cast against Colonel Chloe Conde, for executing and ordering the execution of prisoners of war. In addition, the same party would like judgement cast against Major Amanda Littlewood for the mistreatment of prisoners of war in Usera.
Additionally, the same party would like judgement cast against Captain Gregor Docherty for preventing the delivery of essential food and medical supplies during the Aelurian blockade. Moreover, the same party would like judgement cast against Henrik Yulov, for ordering his subordinates to fire on innocent civilians. The same party would also like judgement cast against Karl Iovavik and Franzik Udr for following these orders.
In addition, the same party would like judgement cast against Councillor Jennifer Hale for orchestrating the illegal attack on Annatown. Furthermore, the Provisional Government of Lauchenoiria would like judgement cast against First Minister Victoria Juárez for the mistreatment of prisoners of war. The provisional government of Lauchenoiria would also like judgement cast against Laura Moore for orchestrating the activities of the rebel group calling themselves the Lauchenoirian Resistance.
Areas exhaled with relief at reaching the end of the provisional government’s extensive list, and not having to think of any more synonyms for “also”. Of the nineteen grievances listed, nine were against Kerlile or Kerlians, if one counted Jennifer Hale. As such, he could feel Kerlile’s advocate giving him the evil eye, and he suppressed the urge to shudder. This would be a long few months.
Churcher took notes as Arenas spoke. Many atrocities happened during the war. By whom was to adjudicated by her. When Arenas finished speaking, the Clerk turned to look at her. She nodded. The Clerk stood and began speak.
"The Court accepts submission TRC-A-01, Lauchenoiria v. Conternia.
The Court accepts submission TRC-A-02, Lauchenoiria v. Griffiths.
The Court accepts submission TRC-A-03, Lauchenoiria v. Kerlile.
The Court accepts submission TRC-A-04, Lauchenoiria v. Greenwood.
The Court accepts submission TRC-A-05, Lauchenoiria v. Casci.
The Court accepts submission TRC-A-06, Lauchenoiria v. Patel.
The Court accepts submission TRC-A-07, Lauchenoiria v. Pierre.
The Court accepts submission TRC-A-08, Lauchenoiria v. Clarke.
The Court accepts submission TRC-A-09, Lauchenoiria v. Conde.
The Court accepts submission TRC-A-10, Lauchenoiria v. Littlewood.
The Court accepts submission TRC-A-11, Lauchenoiria v. Docherty.
The Court accepts submission TRC-A-12, Lauchenoiria v. Yulov.
The Court accepts submission TRC-A-13, Lauchenoiria v. Iovavik.
The Court accepts submission TRC-A-14, Lauchenoiria v. Udr.
The Court accepts submission TRC-A-15, Lauchenoiria v. Hale.
The Court accepts submission TRC-A-16, Lauchenoiria v. Juárez.
The Court accepts submission TRC-A-17, Lauchenoiria v. Moore.
The Court accepts submission TRC-A-18, Lauchenoiria v. Kelley.
The Court accepts submission TRC-A-19, Lauchenoiria v. Santos."
Churcher continued to make notes, and passed one down to the Clerk, who began speaking immediately. "The Court invites the government of Laeral to allege their grievances."
Therese Lu-Marechal, of the Laeralian Ministry of Justice, approached the podium in response to Judge Churcher's request.
"Thank you, your honor," she said. taking a sheet of paper from the light blue folder she was holding. "The Allied Provinces of Laeral requests judgement cast against the Matriarchy of Kerlile, for the mistreatment, abuse, and murder of numerous prisoners of war of several nations, including Laeral. Secondly, the same party requests judgement cast against President Joanna Greenwood, for approving and coordinating these abuses. Thirdly, the same party requests judgement cast against Colonel Chloe Conde, for directly overseeing and carrying out abuses and executions of prisoners of war."
"Fourthly," Therese continued, "the Allied Provinces of Laeral requests judgement cast against Jonas Kelley, for orchestrating the arbitrary arrest and detention of Laeralian civilians residing in Lauchenoiria. Fifthly, the same party requests judgement cast against Charissa Clarke, for supporting said arrest and detention, overseeing the mistreatment and execution of prisoners of war, producing propaganda which provoked the attempted assassination of President Nicholas Brennan, and approving the shooting of Laeralian diplomat Li Jingyi. Sixth, the same party requests judgement cast against General Eduardo Sanchez, for abetting the execution and mistreatment of prisoners of war as carried out by forces of the Matriarchy of Kerlile." The Laeralian legal delegation had spent a great deal of time and effort arguing over the wording of that last point. What she was reading was a carefully crafted compromise, with every word, particularly the verb 'abetting' having been chosen with great care.
"Finally, the Allied Provinces of Laeral requests judgement cast against Henderson Long, for the attempted murder of President Nicholas Brennan."
Therese looked up at Chief Judge Churcher, searching for any response in her face.
Churcher scribbled some more notes in her pad, and once more nodded at the Clerk who had looked up for approval.
"The Court accepts submission TRC-B-01, Laeral v. Kerlile.
The Court accepts submission TRC-B-02, Laeral v. Greenwood.
The Court accepts submission TRC-B-03, Laeral v. Conde.
The Court accepts submission TRC-B-04, Laeral v. Kelley.
The Court accepts submission TRC-B-05, Laeral v. Clarke.
The Court accepts submission TRC-B-06, Laeral v. Sanchez.
The Court accepts submission TRC-B-07, Laeral v. Long."
The Clerk finished reading aloud, took some water, and then continued, "The Court will now hear from the advocate from Libertas Omnium Maximus to list their alleged grievances".
Dr. William Blunt Sr. Esq. (69) had been asked to represent Libertas Omnium Maximus in the Truth & Reconciliation Commission only three months prior. There was no official literature as to who would represent the Maximusian Government in an international legal case as this was, surprisingly, the nation's first international case in over 200 years. Ultimately, after much debate, it was decided that the current Solicitor General, Dr. Blunt, was the best candidate. He had been involved in dozens of extremely significant LOM court cases even before being asked in 2016 to become the Solicitor General of LOM. In short, he more than knew his way around the court room.
"Your honor," he began curtly, "The Nation of Libertas Omnium Maximus would like to lodge their grievances against the following nations and/or individuals:"
The room, which was already tense to say the least, seemed to tense further than seemed imaginable.
Staff Sergeant Melanie Chevroux, for directly coordinating the assault on Maximusian Congressional Hall, aiding a know fugitive, inciting terrorism, and organizing a terrorist cell."
Blunt exhaled deeply. All in a days work, he thought quietly as he stepped down form the podium, making a point to make eye contact with each Kerlilian representative. He smiled, this would be fun. He slowly rounded the cherry-wood table that he would be calling home for the near future, took a seat, opened file that had been placed on in-front of him, and slowly read the memo, waiting for the next nation to be called to state their grievances. For the Maximusian Legal Council, the TRC trials had begun.
This time, Churcher didn't even bother looking up while writing her notes. She murmured slightly at the Clerk, who stood up once more.
"The Court accepts submission TRC-C-01, Libertas Omnium Maximus v. Kerlile.
The Court accepts submission TRC-C-02, Libertas Omnium Maximus v. Conde.
The Court accepts submission TRC-C-03, Libertas Omnium Maximus v. Greenwood.
The Court accepts submission TRC-C-04, Libertas Omnium Maximus v. Chevroux."
The Clerk was tapped on his shoulder by Churcher, who passed him a note. "The Court calls for the representative of the Matriarchy of Kerlile to stand and allege any grievances."
Irene Sheridan was a true believer in the Kerlian project. She had devoted her life to the Kerlian Ministry of Justice and it was her uncompromising belief in the Matriarchy that led to her being chosen for this. After all, only true believers can come in contact with the patriarchal countries and not be susceptible to brainwashing, was the reasoning.
“Thank you, your honour,” she said, carefully neutral. She was aware that most people in the room disliked her and everything she stood for to various degrees. She would do little to change that perception.
She sat back down. The Maximusian who’d spoken was eyeing her pointedly. She ignored him. Don’t let him rile you, Irene, she thought. Kerlile’s list of grievances was short, in truth they were cooperating very begrudgingly. And Sheridan knew, in the back of her mind, that this could not end well for the Matriarchy.
"The Court accepts submission TRC-D-01, Kerlile v. Libertas Omnium Maximus.
The Court accepts submission TRC-D-02, Kerlile v. Moore."
The Clerk looked back at Churcher who nodded.
"The Court calls on the representatives from Conternia to allege their grievances."
"Thank you, your honour". Of course, Toller had been doing this for well over thirty years; if there was one thing he could claim to be perfect at, it was courtroom demeanour.
"The Republic of Conternia would like to lodge their grievances against the groups, nations, and individuals now named", he said, slowly, deliberately.
"The Matriarchy of Kerlile, for permitting and sanctioning numerous acts of murder and torture, against combatants and civilians, by their armed forces"
"Colonel Chloe Conde, for abuse and murder of prisoners of war in blatant violation of the rule of war."
"President Joanna Greenwood, for permitting the atrocities committed by her council and her military."
"Mr Anthony Santos, for the torture of President Leanna Walker as well as numerous other prisoners, and for attempting to evade capture by illegally entering Conternia."
Toller inhaled, letting his words hang in the air for a moment.
"That will be all", he spoke at last, before retaking his seat, comforting himself with thoughts of the whisky with which he'd numb the slight ache in his back later.
For a final time, the Clerk rose.
"The Court accepts submission TRC-E-01, Conternia v. Kerlile.
The Court accepts submission TRC-E-02, Conternia v. Conde.
The Court accepts submission TRC-E-03, Conternia v. Greenwood.
The Court accepts submission TRC-E-04, Conternia v. Santos."
He looked back up at Judge Churcher who was still scribbling away on a notepad.
"The Court will adjourn for one hour while we review and collate the accepted submissions. All rise." Every stood, with the squeal of chairs scraping against floor almost unbearable. Churcher stood, bowed her head towards the Sanctarian seal above the door into the courtroom, and exited to her right. When she left, the Clerk, still standing, asked those present to take their seats once more. "We shan't be too long", he said with a smile.
"All rise" was the notifier that the judge was back and the ball was once more rolling. Churcher, still silent, handed the clerk a fairly hefty volume of papers. The clerk nodded and turned back to the court.
TRC-A-01, Lauchenoiria v. Conternia shall be taken firstly.
TRC-A-02, Lauchenoiria v. Griffiths shall be taken secondly.
TRC-A-03, Lauchenoiria v. Kerlile shall be taken alongside TRC-B-01, TRC-C-01, and TRC-E-01. It shall be designated TRC-A-03, Lauchenoiria et al v. Kerlile. It shall be taken thirdly.
TRC-A-04, Lauchenoiria v. Greenwood shall be taken alongside TRC-B-02, TRC-C-03, and TRC-E-03. It shall be designated TRC-A-04, Lauchenoiria et al v. Greenwood. It shall be taken fourthly.
TRC-A-05, Lauchenoiria v. Casci shall be taken after that.
TRC-A-06, Lauchenoiria v. Patel shall be taken after that.
TRC-A-07, Lauchenoiria v. Pierre shall be taken after that.
TRC-A-08, Lauchenoiria v. Clarke shall be taken alongside TRC-B-05. It shall be designated TRC-A-08, Lauchenoiria et al v. Clarke. It shall be taken after TRC-A-07.
TRC-A-09, Lauchenoiria v. Conde shall be taken alongside TRC-B-03, TRC-C-02, and TRC-E-02. It shall be designated TRC-A-09, Lauchenoiria et al v. Conde. It shall be taken after TRC-A-08.
TRC-A-10, Lauchenoiria v. Littlewood shall be taken after that.
TRC-A-11, Lauchenoiria v. Docherty shall be taken after that.
TRC-A-12, Lauchenoiria v. Yulov shall be taken after that.
TRC-A-13, Lauchenoiria v. Iovavik shall be taken after that.
TRC-A-14, Lauchenoiria v. Udr shall be taken after that.
TRC-A-15, Lauchenoiria v. Hale shall be taken after that.
TRC-A-16, Lauchenoiria v. Juárez shall be taken after that.
TRC-A-17, Lauchenoiria v. Moore shall be taken alongside TRC-D-02. It shall be designated TRC-A-17, Lauchenoiria et al v. Moore. It shall be taken after TRC-A-16.
TRC-A-18, Lauchenoiria v. Kelley shall be taken alongside TRC-B-04. It shall be designated TRC-A-18, Lauchenoiria et al v. Kelley. It shall be taken after TRC-A-17.
TRC-A-19, Lauchenoiria v. Santos shall be taken alongside TRC-E-04. It shall be designated TRC-A-19, Lauchenoiria et al v. Santos. It shall be taken after TRC-A-18.
TRC-B-06, Laeral v. Sanchez shall be taken after TRC-A-19.
TRC-B-07, Laeral v. Long shall be taken after that.
TRC-C-04, Libertas Omnium Maximus v. Chevroux shall be taken after that.
TRC-D-01, Kerlile v. Libertas Omnium Maximus shall be taken after that, and shall be the final case the Court hears."
The clerk stopped to take a drink of water.
"This Court will adjourn until 05 March 2019 to allow parties to prepare for the cases. In each case the Court will ask if the defendants plead guilty or not guilty. If it is guilty, the case shall be adjourned for adjudication of remedy. In the event of a plea of not guilty, the Court will hear one prosecutor or plaintiff statement, and one defence statement. In cases where there is more than one plaintiff or prosecutor, the Court asks those parties to choose which of among them will present the statement. The Court stands adjourned until 05 March 2019. All rise."
The clerk rose, his familiar voice booming around the courtroom. "The Court will rise for the honourable judge Sylvia Churcher, presiding judge of this Truth and Reconciliation Commission. Her Honour would like me to remind parties here today that we will be running the gamut between civil cases and procedure and criminal cases and procedure. To remind all, cases where a state is the defence is a civil procedure, and those were an individual is the defence is a criminal procedure. Please bear that in mind when requesting specific remedies should they be found guilty.
The case we hear today is TRC-A-01, Lauchenoiria v. Conternia. Does the defendant plead guilty or not guilty to the charges of "orchestrating the bombing of Melissa City Police Department and the kidnapping of Professor Michael Antonin" laid before them?"
"Your honour, the defendant pleads not guilty"
Covertly, Toller scanned the room, taking in the subtle shifts in facial expression his words brought on - the little traces of surprise, occasional disapproval, something like respect, that played out in people's eyes and on their top lips.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


Introduction: SILENT PARTNER is a lawyer-to-lawyer resource for military legal assistance attorneys and civilian lawyers, published by the Military Committee of the American Bar Association’s Family Law Section and the North Carolina State Bar’s military committee. Please send any comments, corrections and suggestions to the address at the end of this Silent Partner. There are many SILENT PARTNER infoletters on military pension division, and other aspects of military divorce. Just go to americanbar.org > Family Law Section > Military Committee (the website of the above ABA committee), or nclamp.gov > For Lawyers (the website of the military committee, N.C. State Bar).
A new set of rules for the division of military pensions took effect in 2016 for servicemembers (SMs) not yet receiving retired pay on a divorce date after December 23, 2016. Details are found in several Silent Partner info-letters on the Frozen Benefit Rule located at the website of the military committee of the N.C. State Bar, www.nclamp.gov > For Lawyers.
C) The actual retired pay of the employee.
The Frozen Benefit Rule doesn’t alter the spouse’s share. It is still a mandatory 50% in most community property states and a presumptive 50% in equitable distribution states.
And the Rule doesn’t change the marital fraction. That remains unaltered by federal law.
The only element which is changed is the third one, the pension to be divided. Instead of distributing the actual retired pay of the military retiree, the court is limited to distribution of a “snapshot amount,” fixed at the date of the divorce or dissolution.
In addition to the Frozen Benefit Rule, federal law prescribes a rule for determining when a pension can be garnished as property by the retired pay center. There must be a ten-year overlap between the marriage and military service creditable for retirement in order to allow these direct payments to the FS. It is customary to state compliance with the “10/10 Rule” in the pension division order.
A fthird federal rule limits what can be awarded to the FS as property division. The total retired pay that may be paid to the ex-spouse as property cannot exceed 50% of disposable retired pay.
Finally, most states have a rule for date of classification and valuation of marital or community property. By way of example, this date is the date of separation in California and North Carolina. It is the date of filing of the matrimonial action in New York. It may be the date of divorce or the date of irretrievable breakdown in other states.
The text below will explain the confluence of these rules, how the. SM can ensure that the court complies with the Frozen Benefit Rule, and how the FS can try to avoid its consequences in order to receive a share of full retired pay.
When the pension division order involves a 10/10 case (i.e., one which can be paid as a property division garnishment), the retired pay center acts as a “control valve” to ensure that the order contains the necessary terms so that only disposable retired pay (DRP) will be divided. The rules in Volume 7B, Chapter 29 of the DoDFMR (the Department of Defense Financial Management Regulation) limit the DRP (disposable retired pay) to the hypothetical retired pay which exists on the date of divorce. Regardless of how much the servicemember’s total retired pay may be, only the DRP is subject to division with the former spouse.
D) The “snapshot amount” that would have been paid to the member if he or she had retired at divorce.
This restriction, operating through the retired pay center, protects the SM. It ensures that the garnishment of his or her retired pay for a former spouse will not exceed the limits imposed by federal law. It will always be the lesser of 50% of the DRP or the fraction or percentage of DRP stated in the pension division order, or resulting from the terms or formula in the order.
That protection disappears when there is no 10/10 overlap. Instead of having two layers of protection - the courts and DFAS - the SM must rely solely on the judge to enforce the limits of federal law.
This may be a difficult challenge for the court, since few judges have sufficient knowledge about military pension division, let alone the new restrictions of the Frozen Benefit Rule, to establish and enforce the boundaries. Since most cases are settled, not tried, the judge seldom reads the clauses and paragraphs in the pension division order before signing it. In contested cases, the judge often makes a ruling and then directs one of the attorneys to “draw me an order” to implement the pension division.
And that’s the next problem. Few attorneys are familiar with the requirements of the Frozen Benefit Rule, since the division of retired pay in divorce cases is the province of state laws and rules, not federal restrictions.
What may happen is that the pension division order gets drawn in the old, time-tested way, with the FS getting 50% of the marital share times the SM’s actual retired pay. No one is paying attention to the restrictions set out in the Frozen Benefit Rule; the attorneys and the court may not even be aware of the impact of Sec. 641 of the National Defense Authorization Act for Fiscal Year 2017, its clarification in Sec. 624 of the NDAA 2018, the codification of these changes in the USFSPA at 10 U.S.C. §1408(a)(4)(B), and the requirements of Section 2908, Chapter 29, Volume 7B of the DoDFMR.
What will happen at retirement if such an order was entered years before, when the SM was still serving? In that situation, the payments will not come from DFAS since the order does not comply with the 10/10 Rule. The FS will want enforcement so that she or he can receive a share of the military pension, which is now in “pay status,” with the military retiree getting 100% of the payments. Upon the motion or application of the FS for compliance or contempt, the order to be enforced may be one which provides a larger share to the FS than that which is allowed by the Frozen Benefit Rule. And the judge may be inclined to leave things as they stand, citing the legal enforcement doctrine of res judicata. This doctrine bars the relitigation of matters which were or could have been litigated at the time of the initial order. When a court order is erroneous but the losing party fails to appeal it, the order stands and is enforceable, even as to those issues erroneously decided.
The game plan for the. SM should contain two strategies. The first is to make sure the pension division order contains the correct wording. This not only means the two data points at the divorce date which are required by the DoDFMR, i.e., the years of creditable service (or total points for Guard/Reserve personnel) and the “High-3” pay of the member. It also means ensuring that the order states clearly what is divided, namely, the disposable retired pay of the SM. Since by definition this order will not be going through the halls of DFAS, the two data points will not provide any guidance for DFAS in limiting the amount of retired pay which can be divided. The utility of these two data points is to peg the amount of the member’s hypothetical retired pay as of the date of divorce. Without stern supervision by the SM’s attorney, it’s possible that the order will omit the data points entirely.
How is retired pay calculated? Regular retired pay (i.e., retired pay based on active-duty service years) or non-regular retired pay (i.e., retired pay based on Guard/Reserve service) involves multiplying the retired pay base by the retired pay multiplier.
B) The retired pay multiplier for these SMs is 2.5% times the years of creditable service.
It would be all too easy for the final order to state that “the spouse’s share is 50%” and that “the marital fraction is 124 months of creditable service divided by total service at the time of retirement” but then to lose focus when it comes to what is to be divided. The order needs to contain a clear directive that “the pension to be divided is disposable retired pay measured on the date of divorce as if the military member had retired on that day,” subject only to passive cost-of-living adjustments (COLAs) under 10 U.S.C. § 1401a.
The second remedy is to appeal immediately if these essential clauses are not present. Failure to appeal means that, if enforcement proceedings follow, whatever was stated in the order will be binding on the SM/retiree based on res judicata. Appealing a trial court order can be expensive and time-consuming. It may require a specialist in appeals to be sure that the record is complete, the deadlines are met, and the arguments are crafted soundly. But a SM’s failure to appeal means that his hands are tied on the issue of full payment to the FS; the rule of res judicata (also called “the law of the case” and - in the Restatement of Judgments - “claim preclusion”) will bar future remedies and relief for him or her.
* his disposable retired pay for division herein is $4,567 X 24.5 X 2.5%, pursuant to 10 U.S.C. §1407 and 1409, or $2,797.29.
This is pursuant to Sec. 641 of the National Defense Authorization Act for 2017 and 10 U.S.C. §1408(a)(4)(B).
If the former spouse’s attorney is not alert to the issues in military pension division, it may even be possible for the SM to get an agreement providing for the specified sum as a fixed dollar amount. The award of a fixed dollar amount in a pension division order, decree or incorporated agreement means that the recipient receives no COLAs (cost-of-living adjustment), and this would be a substantial windfall for the SM.
Advocacy for the spouse or former spouse means two strategies. First of all, it means use of standard pension division orders and language. Inertia often governs what lawyers do when they prepare - at the end of the case - implementing orders for division of retired pay. Whether these orders are QDROs (qualified domestic relations orders) or other instruments, everyone wants a sample, a “go-by,” so that the blanks can be filled in, the signatures applied, the document filed and the case closed.
This is the time for the attorney for the spouse/FS to prepare what might be called the “standard order” using the usual language about division of the actual retired pay of the servicemember. If this is the order which the judge signs, then it becomes the governing instrument and can be enforced later on under res judicata; an unappealed order - even if it contains substantive legal errors - is binding on the parties and enforceable.
A) It was res judicata that formed the basis for upholding the division of military retired pay despite the Supreme Court’s holding in McCarty v. McCarty that military pensions could not be divided without Congressional authorization, enacted afterward as the USFSPA. In re Marriage of Sheldon, 124 Cal. App. 3d 371, 177 Cal. Rptr. 380 (1981) (state courts specifically held that the McCarty decision did not prevent division of military pension based on res judicata); cert. dismissed Sheldon v. Sheldon, 456 U.S. 941 (1982) (petition for certiorari was filed, but Supreme Court dismissed it for want of a substantial federal question; dismissal on this basis is an adjudication on the merits).
B) Even though federal law bars a court from dividing VA disability compensation, or the military retired pay that is waived to receive it, res judicata has been used to uphold the division of gross retired pay without deduction of the VA waiver. Mansell v. Mansell, 217 Cal.App.3d 219, 265 Cal.Rptr. 227 (1989), cert. den. 498 U.S. 806 (1990); Ocasio-Santiago v. Rockwood, No. 48066-2-II2017 Wash. App. LEXIS 740 (Wash. Ct. App., Div. Two, February 13, 2017) (appellate court denied claim of retiree that trial judge had impermissibly divided his military disability benefits, stating that appellant had not raised these arguments below and thus was barred from bringing them up in the appeal); Winters v. Winters, 2017 IL App (5th) 160217-U, 2017 Ill. App. Unpub. LEXIS 1563 (Ill. Ct. App., 5th Dist., July 31, 2017) (unpub.) (retiree’s agreement to pay share of pension to former spouse plus res judicata barred his later claim that he did not have to pay because of VA payments received and the “VA waiver”).
C) Even though in general MDRP (military disability retired pay) cannot be divided, res judicata has been employed to uphold a trial court’s division of MDRP. Evans v. Evans, 75. Md. App. 364, 541 A.2d 648 (1988) (collateral attack on such a judgment is barred when there was no previous appeal); Rudolph v. Jamieson, No. 88, September Term, 1988, 2018 Tex. App. LEXIS 3983, 2018 WL 2648514 (Tex. Ct. App., 3d Dist., June 5, 2018) (same).
D) The U.S. Supreme Court has specifically proclaimed that the refusal of a court to grant relief because of res judicata is not reviewable because of constitutional error: “Whether the doctrine of res judicata, as applied in California, should have barred the reopening of pre-McCarty settlements is a matter of state law over which we have no jurisdiction.” Mansell v. Mansell, 490 U.S. 581, 586, fn. 5 (1989).
(6) Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (1) [e.g., 50% of disposable retired pay] has been paid….
Numerous court decisions have held that orders which require the retiree to pay more than 50% of disposable retired pay are not void or invalid; they are simply not enforceable through garnishment from the retired pay center for amounts in excess of 50%. If challenged on the issue of what may be divided, counsel for the FS can attempt defeat the claim of the SM/retiree (that federal law preempts state court orders) by arguing that this section of USFSPA provides an “escape hatch” for the FS in enforcement of the pension division order.
The second issue which must be addressed is the standard denominator of the marital or coverture fraction used in most states. Except for Texas, Florida, Tennessee, Kentucky and Oklahoma, virtually all states divide the pension payments actually received, and they use a fraction to determine what portion of the pension was acquired during the marriage. The numerator of the fraction is always that time during marriage in which the pension was earned; it ends at the date specified in state law for classification and valuation of marital or community property (e.g., the date of divorce, date of separation or date of marital dissolution filing). The denominator of the standard time-rule fraction is the total time of service toward the pension.
Here is the choice point for the spouse’s attorney. And there is a risk with either choice that is made.
Should the denominator remain the full term of pension service?
The advantage of this would be its consistency with the rest of the “standard order” that the FS’s attorney is using. If nothing is changed, nothing is unusual and nothing is out of place, then there is nothing to alert the other side of the “actual retired pay” which is being divided - not the fixed benefit as of date of divorce. This denominator is the standard denominator specifying the full career of John Doe, the SM.
The disadvantage is that - if the court in the future only enforces the fixed benefit to be divided, then the spouse is actually receiving a double discount - one for getting the frozen benefit as of the divorce date, and another discount for the steadily increasing denominator, which dilutes her or his share every month of every year of further service.
Or should the denominator be fixed as of the divorce date?
To do this would be fully consistent with the Frozen Benefit Rule, which fixed the amount to be divided as of the divorce date. It makes sense mathematically to have a denominator which is fixed on that date as well, and such an approach prevails in the five states mentioned above which - through state law - already used the fixed benefit approach to pensions of all types at the time of divorce.
If, however, the denominator is fixed, won’t that alert the other side to the issue of a fixed benefit?
Due to the complexities of military pension division, especially in cases where the Frozen. Benefit Rule comes into play, counsel for either party must be alert and fully prepared, with full knowledge of the rules set out in the DoDFMR. When the 10/10 Rule is not met, payments will not be transmitted through income-withholding at the retired pay center, and vigilance is even more important for the attorney for the spouse or the servicemember. This infoletter provides some of the guidance necessary for both sides.
This SILENT PARTNER was prepared by COL Mark E. Sullivan (USA-Ret.). For revisions, comments or corrections, contact him at Sullivan & Tanner, P.A. in Raleigh, N.C. - 919-832-8507, or at mark.sullivan@ncfamilylaw.com.
 The Frozen Benefit Rule, prescribed in Sec. 641 of the National Defense Authorization Act (NDAA) for 2017 and clarified at Sec. 624 of NDAA 2018, limits the disposable retired pay which can be divided in divorce and legal separation cases to the hypothetical retired pay of the SM. The Rule is set out at 10 U.S.C. §1408(a)(4)(B).
 10 U.S.C. § 1408 (d)(2).
 The “pension division order” is a decree of divorce, dissolution, legal separation or annulment, or a settlement agreement incorporated therein. 10 U.S.C. § 1408(a)(2).
 See 10 U.S.C. §1408(a)(4) for “disposable retired pay.” The 50% limit is found at 10 U.S.C. §1408(e)(1).
 Cost-of-living adjustments (COLAs) under 10 U.S.C. § 1401a are added to this amount between the divorce date and the date of actual retirement.
 To assist the retired pay center in calculating this amount, the rules at Section 2908 of Volume 7B, Chapter 29 require that the instrument dividing military retired pay must set out these two numbers as of the date of divorce: the SM’s “High-3” pay (i.e., the monthly average of his or her highest 36 months of compensation, pursuant to 10 U.S.C. §1407) and the SM’s years of creditable service (or, in the case of Guard/Reserve personnel, the total retirement points).
 10 U.S.C. § 1407. See also DoDFMR, Vol. 7B, Ch. 1, ¶010102.
 10 U.S.C. § 1409. For RC members, the “years of service” component is determined by dividing the total number of retirement points by 360. 10 U.S.C. § 12733.
 This example assumes, for the sake of simplicity, that there are no deductions from gross retired pay for the SBP premium, a VA waiver or other items set out at 10 U.S.C. §1408(a)(4)(A).
 See also Brett R. Turner, Equitable Distribution of Property (3rd Ed. & 2016-2017 Supp.), Sec. 6.4.
 See, e.g., In re Hicks, 530 B.R. 912 (M.D. Fla. 2015); In re Madsen, 2002 Bankr. LEXIS 2037 (Bankr. S.D. Iowa 2002); In re Mackmeekan, 117 B.R. 642 (D. Kan. 1990); Ex Parte Smallwood, 811 So. 2d 537 (Ala. 2001); Grier v. Grier, 731 S.W.2d 931 (Tex. 1987); Forney v. Minard, 849 P.2d 724 (Wyo. 1993); Marquis v. Marquis, 175 Md. App. 734, 931 A.2d 1164 (Md. Ct. Spec. App. 2007); Deliduka v. Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984); Stout v. Stout, 144 So. 3d 177 (Miss. App. 2013); Gonzalez v. Gonzalez, 2011 Tenn. App. LEXIS 21; Maxwell v. Maxwell, 796 P.2d 403, 406 n.6 (Utah Ct. App. 1990); In re Marriage of Bocanegra, 58 Wn. App. 271, 792 P.2d 1263 (Wash. Ct. App. 1990); and Geesaman v. Geesaman, 1993 Del. Fam. Ct. LEXIS 126 (Del. Fam. Ct. 1993).