Lex Fori PLLC and Carson J. Tucker Submit Pro Bono Brief in Louisiana Supreme Court Defending Disabled Veteran

In keeping with our efforts in providing pro bono representation to disabled veterans and protecting their disability from being depleted by state courts and overwhelming legal fees, I filed an appearance and was admitted to the Louisiana Supreme Court in the case of Boutte v. Boutte.

On August 7, we filed our petition.

Today we filed a response brief in the Louisiana Supreme Court.

In keeping with our experiences thus far, our response had to contend with the opposing counsel’s insinuation that our client was trying to “weasel” his way out of paying the veteran’s disability pay he is entitled to because of his combat-related injuries. The opposing counsel also, again, unsurprisingly, attempted to question the veracity of the veteran’s injuries. See the opposition’s brief at pages 1 and 2. This frequent discrimination occurs in state courts (apparently even in state supreme courts) even though federal law clearly protects the benefits at issue (even prohibiting the veteran from agreeing to dispossess himself or herself of these benefits) and, second, the record in this case shows that as of November 2009 and June 2010 the VA assessed 30% and 70%, respectively, of Kevin’s disability as including “Post-Traumatic Stress Disorder, Mood Disorder, and Cognitive Disorder”.

Unfortunately, even in this day and age, 45 years after the end of the Vietnam War we still have to defend our disabled veterans from these vitriolic prejudices and misconceptions.

But, with grace and diplomacy, we must do so. And so, as we explained in our brief, speaking to the fact that veteran’s disability benefits are protected from any legal or equitable process:

“These restrictions on state courts imposed by Congress removed any negative tendencies one might have to question the disabled veteran’s integrity or to doubt the nature and extent of his or her injuries, an endeavor in which Appellee’s counsel unfortunately engages in his opposition before this Honorable Court. See Opposition Brief at page 1, describing the disabled veteran as trying to “weasel” out of a promise, and at page 2, refusing to accept the government’s conclusion that Kevin suffers from a combat-related disability. But see the Appellate Record at 279 (as of November 2009 and June 2010 the VA assessed 30% and 70%, respectively, of Kevin’s disability as including “Post-Traumatic Stress Disorder, Mood Disorder, and Cognitive Disorder”).

“In fact, Appellee’s counsel’s discreditable, but predictable reaction to this situation is precisely why the preemptive federal statutes are applicable in these cases. They remove the pain of having to choose a perceived injustice in following supreme and irrefutable law. Mansell v. Mansell, 490 U.S. 581, 593-594 (1989) (noting that the wisdom of Congress’s policy choices do not have to be consulted in light of the plain language of the statutes protecting veterans’ disability benefits). Subsection (a)(3)(A) of 38 U.S.C. § 5301 prohibits a beneficiary from entering into any agreement to dispossess himself or herself of the restricted benefits. “[I]n any case where a beneficiary entitled to compensation, pension, or dependency and indemnity compensation enters into an agreement with another person under which agreement such other person acquires for consideration the right to receive such benefit by payment of such compensation…such agreement shall be deemed to be an assignment and is prohibited.” (emphasis supplied)….

“Of course, it should be evident to anyone that a disabled veteran suffering from the brutal psychological and physical injuries of war would be protected from voluntarily agreeing to dispossess himself or herself of these necessary benefits. The provision has been described by the Court as preventing “the deprivation and depletion of the means of subsistence of veterans dependent upon these benefits as the main source of their income.” Rose v. Rose, 481 U.S. 619, 630 (1987). See also Hines v. Lowrey, 305 U.S. 85, 90 (1938) (addressing Congress’s exercise of its enumerated military powers to protect “all veterans, competent and incompetent, in all courts, state and federal” from payment of fees from the benefits beyond that authorized by the statute). But, neither Appellee nor this Court has to venture into the uncomfortable position of having to assess Kevin’s character or speculate as to the extent and nature of the wounds he received in defense of the nation….

“The powers of Congress in this realm are absolute. Only Congress can give state courts authority, and therefore jurisdiction, to consider certain federally appropriated funds as divisible “property” in state court divorce proceedings. There is no doubt that the preemption imposes upon state courts a jurisdictional bar to proceed to a judgment that would be in excess of the statutory grants of authority to the state. Lowrey, supra, was cited by the Court in Kalb v. Feurstein, 308 U.S. 433, 440, nn. 11 and 12 (1940), which also followed the rule that a court cannot act in excess of the jurisdiction and authority conferred upon it by federal law. “That a state court before which a proceeding is competently initiated may – by operation of supreme federal law – lose jurisdiction to proceed to a judgment unassailable on collateral attack is not a concept unknown to our federal system.” Id. at n. 12 (emphasis added)….

“For decades, disabled veterans have suffered immeasurably under wholly judicial creations developed as exceptions to the explicit protections afforded them by Congress’s exercise of its enumerated military powers. State theories of estoppel and the reliance interests of the parties have been raised with a resounding clamor in an effort to prevent the self-evident and explicit preemptive laws from simply taking effect. But the swell of defiance does not make these parties any more correct, nor can it insulate state courts from the constitutional rights of those who seek to regain and restore to themselves their earned entitlements. The passage of time and the din of dissension cannot erode the underlying structure guaranteeing the rights bestowed. The Supreme Court has recently expressed this sentiment in overturning more than a century of reliance on erroneous legal principles. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). There, Justice Gorsuch, writing for a majority of this Court stated: “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” Id. at 2482….

“The federal statutes and regulations passed pursuant to Congress’s enumerated military powers contain no allowance to the states to sequester the veterans’ disability benefits at issue in this case and force them to be paid over to any other individual. Rather, these benefits are (and always have been) explicitly excluded by statute from state jurisdiction and control….

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