Fern v. Turman

736 F.2d 1367
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 10, 1984
DocketNos. 82-4577, 82-4581
StatusPublished
Cited by19 cases

This text of 736 F.2d 1367 (Fern v. Turman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fern v. Turman, 736 F.2d 1367 (9th Cir. 1984).

Opinion

BROWNING, Chief Judge:

Appellants are retired military officers. Both were required by divorce decrees to pay a fixed percentage of their military retired pay to their former wives as divisible community property under state law. Both ceased payments after the United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that state courts were not free to divide retired military pay under community property laws.

The wives filed motions in the state courts to compel appellants to comply with the decrees. The husbands removed the cases to federal district court. They also filed complaints in federal court naming as defendants not only their wives but also the Secretaries of the Army and Air Force. They asked that the state divorce decrees be declared invalid insofar as they required payment of retired pay to their former wives or, in the alternative, for a declaration that the husbands were no longer subject to recall to active duty.

The complaints were dismissed on the basis of the domestic relations exception to diversity jurisdiction and the failure of the officers to state a federal claim other than as a defense to a claim based entirely on state law. These appeals followed.

While the appeals were pending, Congress passed the Uniform Services Former Spouses’ Protection Act (FSPA), permitting state courts to treat retired pay as either personal or community property in accordance with state law. 10 U.S.C. § 1408(c)(i).

Federal question jurisdiction

Appellants argue their claims arise under federal law because their rights to military retired pay are determined by federal statute. They also argue federal question jurisdiction flows from their claims against the federal defendants.

The wives’ claims for portions of their husbands’ retired pay awarded the wives by the divorce decrees are at the heart of this litigation. These claims arise entirely under state law. The husband’s federal preemption claims are defenses to [1369]*1369these state claims. They are therefore not claims arising under the laws of the United States. See Whittington v. Whittington, 733 F.2d 620 (9th Cir.1984); Armstrong v. Armstrong, 696 F.2d 1237 (9th Cir.1983). The same is true for appellants’ claim, raised for the first time on appeal, that the FSPA is unconstitutional. This conclusion is not altered by the fact that appellants seek declaratory relief. Appellants’ proper course is to assert their federal preemption defenses and unconstitutionality claims in the state court actions and, if rejected there, to seek review in the United States Supreme Court. Whittington, supra.

The district court may well have had federal question jurisdiction over appellants’ claims against the Secretaries of the Army and Air Force. The contention underlying these claims is that military retired pay is actually reduced compensation for current services, see McCarty, 453 U.S. at 222-23, 101 S.Ct. at 2736; Costello v. United States, 587 F.2d 424, 426 (9th Cir.1978), including exposure to recall to active duty at any time. 10 U.S.C. § 688(a). Appellants argue that if they are no longer to be paid for this service they cannot be required to perform it. They therefore ask that if the decrees are held valid despite appellants’ arguments, the Secretaries be required to remove appellants’ names from the active duty recall roster. Jurisdiction to hear this claim is asserted under 28 U.S.C. §§ 1331, 1332, and 1361.

In view of our holding that appellants must pursue their claims in state court, appellants’ claims against the Secretaries of the Army and Air Force are not ripe for resolution. Ripeness has “ ‘a twofold aspect, ... the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” Pence v. Andrus, 586 F.2d 733, 737 (9th Cir.1978) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)).

State court proceedings are ongoing. Until these proceedings are completed and it has been determined that appellants must relinquish a portion of their retired pay, a decision by this court on the claims against the federal defendants would be premature. See Bergstrom v. Bergstrom, 623 F.2d 517, 519-20 (8th Cir.1980); Rhodes v. Laurino, 601 F.2d 1239, 1241 (2d Cir.1979); Mendez v. Heller, 530 F.2d 457, 461 (2d Cir.1976) (Oakes, J., concurring).

Even were we to assume an adverse decision by the state court, another contingency would • remain. Until the Secretaries take some action to enforce appellants’ military obligations, any decision by this court would address a purely hypothetical situation. There is no indication either appellant faces recall. Appellants’ claims against the federal defendants are therefore unfit for judicial resolution because they are contingent both upon a decision of the state court not yet final and an administrative action not yet taken. See Toilet Goods Ass’n. v. Gardner, 387 U.S. 158, 163-64, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967).

Moreover, until appellants demonstrate a “threat of significant and immediate impact” from Secretarial action, Kerr-McGee Chemical Corp. v. United States Dept. of Interior, 709 F.2d 597, 600 (9th Cir.1983), denial of jurisdiction works no hardship on appellants and their claim based upon potential recall for active duty is not ripe. Id. at 602.

We reach the same conclusion regarding appellants’ argument that the garnishment provision of the FSPA, 10 U.S.C. § 1408(d)(5), under which the Secretary may remit retired pay directly to former spouses, provides the court with jurisdiction. The claim that this provision is contrary to the requirements of McCarty is not ripe for adjudication until a garnishment order is served upon the Secretary.

Diversity jurisdiction

Although the order in Fern v. Turman is somewhat ambiguous, we conclude that in both cases the district court indicated an intention to exercise its discretion to decline jurisdiction based on the domestic re[1370]

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