Tаmmy ADKINS; Gerrit J. Allen; Daniel Anderson; William Arnold; Donald O. Austin; Robert M. Balick; Charles A. Barat; Richard A. Becker; Paul A. Brandmire; Ricky L. Brennan, Sr.; Robert D. Buxton; John Capewell; Philip P. Casale, Sr.; William F. Conroy, III; Frederick A. Cook; Ronald L. Deming; William H. Drawbond; Brian D. Dunn; Clifford C. Eckert; Stephanie A. Eeckhout; Sherry E. Fancher; Wendell D. Farris; Richard D. Ferrell; Terry P. Fletcher; Robert Frick; Maurice R. Gagnon; Gregory L. Goins; Steven M. Hanger; Gregory Harris; Jackie D. Hawkins; Brian J. Hendricks; Diane Hobbs; James William Hunter; William Paul Kennemer; William J. Koselka; Roger Ledbetter; James W. Loberg; Kenneth Manring; Stephen Monks; Frederick Nehrings; John B. Noone, Jr.; Edwin E. Ostroot, II; Steven Perrin; Marvin L. Potts; Lorraine C. Reis; Ronald A. Resare; Donald E. Rotunda; Michael Speir; Lloyd E. Stanton, Jr.; Marvin G. Stroud, Jr.; Robert W. Throckmorton; Glenn Udart; Michael Varela; Mickey Wright; Dorothy J. Yarde; George Zamora; Carroll Zimmerman; ULSG, LLC; Bruce Paquette; Arthur Wilson, Plaintiffs-Appellants,
v.
Donald H. RUMSFELD, Defendant-Appellee.
No. 05-2307.
United States Court of Appeals, Fourth Circuit.
Argued May 22, 2006.
Decided September 18, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED ARGUED: David Jeremy Bederman, Emory University School of Law, Atlanta, Georgia, for Appellants. Dennis Carl Barghaan, Jr., Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Jonathan L. Katz, Marks & Katz, L.L.C., Silver Spring, Maryland, for Appellants. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.
Before WIDENER and MICHAEL, Circuit Judges, and JOSEPH R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge GOODWIN joined. Judge WIDENER wrote a separate concurring opinion.
MICHAEL, Circuit Judge.
The Uniformed Services Former Spouses' Protection Act (Act) gives states the option to classify a United States armed forces member's disposable military retirement pay as property divisible upon divorce. Pub.L. No. 97-252, 96 Stat. 730 (1982) (codified as amended at 10 U.S.C. § 1408). In addition, the Act establishes a payments mechanism allowing an eligible former spouse to receive the share of the retired pay directly from the military pursuant to a state court order in divorce proceedings. Id. In this case current and retired mеmbers of the armed forces whose retirement pay has been divided in state divorce proceedings, and an association representing such members, sued the Secretary of Defense. The plaintiffs allege that the Act and the regulations implementing it violate their constitutional rights to due process and equal protection of law. They also allege that the Act fails to respect the principle, purportedly rooted in the Constitution's Armed Forces and Full Faith and Credit Clauses, that legislation concerning military pay must have nationally uniform effect without variations among the states. The district court dismissed the individual plaintiffs' claims for lack of subject matter jurisdiction, reasoning that these plaintiffs impermissibly sought appellate review of their underlying state court divorce decrees. The court later dismissed or granted summary judgment to the Secretary on all of the association's claims. We conclude that the district court correctly rejected the association's constitutional challenges, and we also conclude that the individual claims cannot succeed, even though the district court had subject matter jurisdiction over them. We therefore affirm.
I.
A.
To be eligible for retirement pay, members of the uniformed services must generally serve for a specified length of time, usually at least 20 years. See 10 U.S.C. § 3911 et seq. (Army); § 6321 et seq. (Navy and Marine Corps); § 8911 et seq. (Air Force). Members also face a mandatory retirement age of 62 regardless of how long they have served, subject to certain exceptions. 10 U.S.C. § 1251. The amount of retirement pay is usually a product of two factors: the number of years of creditable service and a fixed percentage of the member's "pay level achieved at retirement." Barker v. Kansas,
The division of spousal property upon divorce is usually a question of state law. "The whole subject of the domestic relations of husband and wife . . . belongs to the laws of the States and not to the laws of the United States." In re Burrus,
Congress made exactly that decision in passing the Uniformed Services Former Spouses' Protection Act. The statute provides that subject to specified limitations "a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." 10 U.S.C. § 1408(c)(1) (emphasis added). Disposable retired pay is the total monthly retired pay less certain deductions, § 1408(a)(4), and no more than half of the retiree's disposable retired pay may be awarded to the former spouse as divisible property, § 1408(e)(1). Retirement pay waived to receive disability benefits is excluded. § 1408(a)(4)(B); Mansell v. Mansell,
By referring to the "law of the jurisdiction" of a court issuing a divorce order, § 1408(c)(1) unambiguously leaves to the states the choice of whether to treat disposable retired pay earned for service during marriage as divisible property. See also Barker,
Another provision of the Act created a "payments mechanism," Mansell,
A Department of Defense (DOD) regulation issued pursuant to congressional authorization, 10 U.S.C. § 1408(j), sets forth further details of the payments mechanism. See DOD Financial Management Regulation, Volume 7B, Ch. 29, DOD 7000.14-R (July 2005), available at www.dod.mil/comptroller/fmr/07b/07b—29.pdf. After a former spouse submits a certified copy of the state court order, the DOD's Defense Finance and Accounting Service (DFAS) must verify that the order satisfies the statutory requirements. Id. ¶ 2906. If the order adjudicated the right of a member who was on active duty and not represented in court, the order must certify that the court afforded the member the procedural protections due under the Servicemembers Civil Relief Act (SCRA), 50 App. U.S.C. § 501 et seq. Id. ¶ 290602. If, however, the court order is regular on its face, DFAS does not further review the case to determine whether the rendering court had personal jurisdiction over the retiree. Id. ¶ 291003. Within 30 days of effective service of the order, DFAS must notify the affected retiree in writing. Id. ¶ 290901. The retiree is entitled to respond, and DFAS "will not honor the court order if it is defective or is modified, superseded, or set aside." Id. ¶ 290903. The retiree or the former spouse may later file a request that DFAS reconsider its decision regarding the court order based on specified reasons. DFAS must "respond to the request for reconsideration, giving an explanation of the determination reached." Id. ¶ 2912.
B.
The 58 individual plaintiffs in this case are either retired armed service members drawing retirement pay or active duty members who will be eligible for this pay on retirement. On various dates between 1978 and 2003, these 58 individuals were all divorced. They are subject to state court divorce orders granting their former spouses a portion of their retirement pay. DFAS makes direct payments to the former spouses of at least some of the plaintiffs. The plaintiff association is the Uniformed Services Former Spouses' Protection Aсt Litigation Support Group, or ULSG, a non-profit limited liability corporation. It has nearly 2,500 members, about half of whom have donated money to the association.
The plaintiffs sued the Secretary of Defense in April 2004 in the U.S. District Court for the Eastern District of Virginia. They sought a judgment declaring (1) that the Act violates the members' rights under the Equal Protection Clause and the substantive and procedural components of the Due Process Clause and (2) that the Act is unconstitutional because it allows state courts to apply it non-uniformly. The district court granted the Secretary's motion to dismiss. Adkins v. Rumsfeld,
On the plaintiffs' motion to alter the judgment, see Fed.R.Civ.P. 59(e), the district court granted ULSG leave to amend the complaint to allege associational standing. Once the amended complaint was filed, the Secretary moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. In March 2005 the district court concluded that an affidavit submitted by a ULSG member was sufficient to show that ULSG had standing to bring the equal protection, procedural due process, and uniformity claims. The court held, however, that ULSG could not proceed with its claim that the Act violated the substantive component of the Due Process Clause by retroactively reaching the retirement pay of service members who joined before the Act's passage. The court based this determination on the date the affiant joined the military, which was long after the Act's effective date. Reaching the merits, the district court went on to dismiss ULSG's equal protection claim and the uniformity claim, but allowed the procedural due process claim to go forward. Both sides moved for summary judgment on that surviving claim, and in October 2005 the district court granted summary judgment to the Secretary. This appeal challenging the district court's dismissal and summary judgment orders followed. Our review is de novo.
II.
We must examine at the outset whether the district court erred in holding that it lacked subject matter jurisdiction over the individual member's claims. Congress has vested only the Supreme Court with jurisdiction to review state court decisions. 28 U.S.C. § 1257. The Rooker-Feldman doctrine, a corollary to this rule, prohibits "lower federal courts . . . from exercising appellate jurisdiction over final state-court judgments." Lance v. Dennis, ___ U.S. ___, ___,
The Secretary argues that the individual claims fall within even thе narrowed doctrine because the plaintiffs lost in state divorce court proceedings before bringing their federal suit, and because their injury was ultimately caused by the adverse state court judgments. We need not decide whether we agree with that description of the claims because at least some of the individual plaintiffs — the ones whose pay DFAS redistributes — are not attempting to appeal unfavorable state court decisions. That is, even if these plaintiffs were "state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced," as the concurring opinion takes them to be, post at 23, they were not "inviting district court review and rejection of those judgments." Exxon Mobil,
Our reading of the claims also shows why the case presents a justiciable controversy in that the individual plaintiffs and ULSG have standing — a matter we must be assured of, even if it is uncontested on appeal. Friеnds of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
Because we conclude that federal subject matter jurisdiction is present, we may proceed to the merits of the constitutional claims.
III.
The plaintiffs challenge the district court's dismissal of their claims invoking substantive due process, the alleged need for uniformity in rules governing military affairs, and equal protection.
A.
The Act does not exempt service members who joined the armed forces prior to its enactment from state court divorce decrees dividing their military retirement pay upon divorce, nor does it exempt these members from the federal payments mechanism that DFAS administers. The service members who joined the military before the statute's enactment allege that the lack of these exemptions retroactively alters the compensation they expected when hired. They contend that this retroactivity amounts to a violation of the substantive component of the Due Process Clause of the Fifth Amendment. The district court did not resolve this claim because it erroneously concluded that it lacked subject matter jurisdiction. The error has no practical consequence for the claim, however, because the claim fails on the merits.
"[T]he retroactive aspects of economic legislation, as well as the prospective aspects, must meet the test of due process," Gen. Motors Corp. v. Romein,
The plaintiffs cite Larionoff in urging us to hold that they are entitled to their undivided military retirement pay. Larionoff is a very different case from this one, however. First, the Supreme Court's search in that case for a "clear expression of congressional intent" to alter the rights of members who had extended their enlistments, id., was simply an application of a familiar general rule: "`a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.'" Fernandez-Vargas v. Gonzales,
Next, the "settled expectations," Landgraf,
Yet even that argument fails. The complaint reveals that none of the individual plaintiffs is entitled to argue that, in the slim window between the McCarty decision and the Act's passage, they had a legitimate expectation that their retirement pay would be shielded upon divorce from division and garnishment. Only two plaintiffs in this case allege that they were divorced before the Act was signed into law in September 1982. Indeed, they were divorced before McCarty was decided. They are Lloyd E. Stanton, Jr., divorced in Arizona in March 1978, and Carroll Zimmerman, divorced in California in August 1979. Yet the courts of the states in which these plaintiffs were divorced treated military retirement pay as divisible on divorce at the time, see Van Loan v. Van Loan,
The individual plaintiffs did not state a substantive due process claim upon which relief could be granted. Thus, the district court's error in not reaching that claim does not affect the outcome of the case.
B.
In giving state courts the option to divide military retirement pay upon divorce, the Act tolerates variation among the states in how that pay is actually divided between spouses in individual cases. For example, although Congress provided that the former spouse's share of the member's retirement pay pursuant to an order dividing property may not exceed 50 percent, 10 U.S.C. § 1408(e)(1), state courts are free to award a lesser share as appropriate in an individual case. The plaintiffs argue that the Act "give[s] rise to disparate treatment to service members" and that it "produces non-uniform results when implemented in state law." J.A. 137. This alleged lack of uniformity, they contend, is impermissible under the Constitution's Armed Forces Clauses, U.S. Const., art. I, § 8, cls. 12-14, and the Full Faith and Credit Clause, id., art. IV, § 1.
We disagree. The portion of the Full Faith and Credit Clause the plaintiffs rely on provides that Congress "may by general Laws prescribe the Manner in which [state public] Acts, Records and Proceedings shall be proved, and the Effect thereof." Id. There is no indication that Congress invoked this clause when passing the Act into law, but even if it had, the clause does not impose on Congress any requirement of substantive uniformity in any area of the law. The word "uniform" is nowhere found in this provision, though it can be found elsewhere in the Constitution. See, e.g., U.S. Const., art. I, § 8, cl. 4 (empowering Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States"). As for the Armed Forces Clauses, "`judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies," Rumsfeld v. Forum for Academic & Institutional Rights, Inc., ___ U.S. ___, ___,
C.
The plaintiffs next argue that the Act violates their constitutional right to equal protection by distinguishing between persons based on three classifications. They first allege that the Act's scheme has a disproportionately harmful impact on female service members. This argument attempts to present a sex discrimination claim. The female plaintiffs contend that when Congress enacted the statute it aimed to protect former spouses not employed outside the home (whom Congress allegedly assumed were women) at the expense of the service members (whom Congress allegedly assumed were men). The plaintiffs further argue that although the number of women in the Armed Forces has increased, the statute has not been changed. They allege that allowing the former husbands of female service members to receive a share of their retirement pay is "manifestly unfair," as these former husbands in many cases have their own income. Appellants' Br. at 52. In other words, the plaintiffs contend that the Act discriminates against women in the Armed Forces and in favor of men because former husbands are more likely than former wives to have sources of income other than the divided military retirement pay.
This argument does not state a claim for sex discrimination in violation of equal protection. A statute that explicitly classifies people based on sex is subject to intermediate scrutiny, which means "it must be established at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of thоse objectives." Nguyen v. INS,
The Act's vocabulary is not sex specific. It refers to service members and former spouses, defining the term spouse as "the husband or wife . . . of a member who, on or before the date of a court order, was married to that member." 10 U.S.C. § 1408(a)(6). So we must apply the Feeney test. To satisfy the first element of the test, it is not enough that the statute be facially neutral; rather, there must also be no covert sex-based discrimination. Feeney,
The second Feeney element requires a showing "that a gender-based discriminatory purpose has, at least in some measure, shaped the . . . legislation." Feeney,
The statute therefore does not distinguish between men and women, but between retired service members and their former spouses. We apply rational basis review to this classification. "[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe,
The Act survives this rational basis review. First, Congress exhibited special concern for the personal and economic sacrifices that the spouse of a military service member makes to sustain the marriage. See S.Rep. No. 97-502, at 6, 1982 U.S.C.C.A.N. at 1601 ("Child care and management of the family household are many times solely the spouse's responsibility. The military spouse lends a cohesiveness to the family facing the rigors of military life, including protracted and stressful separations."). To be sure, Congress also demonstrated respect for the rights of service members. See Mansell,
Second, the Act was indeed rationally related to this legitimate government interest. As we have explained, the Act has a limited function. It simply freed state courts to divide upon divorce military retirement pay based on service completed during the marriage, which allowed the state courts to increase the property availablе to the former spouse. The Act additionally established the payments mechanism that makes it easier for some former spouses to receive their share of retirement pay pursuant to state court orders. For this scheme to work, of course, the Act must distinguish former spouses (who are entitled to take advantage of the payments mechanism) from the retired members (whose retirement pay is subject to distribution). The plaintiffs argue that the Act unconstitutionally favors the former spouses over service members by allowing the former spouses access to retirement pay even though they, unlike the members, are not obligated to continue to perform duties for the government if called upon and are not subject to the military justice provisions. Supra, part I.A. This argument presupposes that the retirement pay can only be characterized as compensation for services rendered during retiremеnt. The presupposition is false. Although military retirement pay has some unique features, it also resembles an ordinary civilian pension in many respects, and Congress grasped that resemblance in passing the Act. In particular, the Supreme Court has explained that the Act's "premise behind permitting the States to apply their community property laws to military retirement pay is that such pay is deferred compensation for past services," not "compensation for reduced current services" that the service member performs after retirement. Barker,
The plaintiffs also contend that the Act creates a second classification by treating retired service members less favorably than other former federal employees. One of their concerns is that the Act does not contain a remarriage cutoff, so a former spouse who remarries does not thereby forfeit the right to receive the determined portion of the service member's retired pay. In contrast, certain payments to former spouses of employees in the civil service, foreign service, and intelligence agency are terminated if those spouses remarry before reaching a specified age. See, e.g., 5 U.S.C. § 8445 (civil service); 22 U.S.C. § 4054 (foreign service); 50 U.S.C. § 2032 (Central Intelligence Agency). After reviewing the Act for Congress, the DOD concluded that the absence of a remarriage cutoff provision requires no legislative correction because the question is best answered in individual cases by state courts. See DOD, A Report to Congress Concerning Federal Former Spouse Protection Laws 82 (2001) ("State courts, not Federal law, should determine the effect of remarriage."), available at http://www.dod.mil/prhome/spouserev.html (hereinafter Former Spouse Protection Report). The decision whether to include a remarriage cutoff in the statute is properly left to Congress. The Constitution simply does not compel Congress to provide for the service members a system entirely identical to the one created for other government officers. The spouses of service members make unique sacrifices during marriage, foregoing in many cases the opportunity "to pursue . . . career[s]" of their own. S.Rep. No. 97-502, at 6, 1982 U.S.C.C.A.N. at 1601. Recognizing these sacrifices, Congress could reasonably have concluded that a remarriage cutoff was not necessary and that state courts should be free to resolve the question. If one purpose of аllowing the former spouse to receive a portion of the military retirement pay is to provide economic support, Congress was not obligated to assume that the need for this support would always disappear upon the former spouse's remarriage.
For these reasons, the district court correctly dismissed the equal protection claim.
IV.
Finally, the plaintiffs challenge the district court's grant of summary judgment in favor of the Secretary on their claim that the Act and its implementing regulations do not provide procedural due process. To evaluate the Act's compliance with the Due Process Clause's procedural component, a court must determine (1) whether the plaintiffs "los[t] something that fits into one of the three protected categories: life, liberty, or property," and (2) whether the plaintiffs "receive[d] the minimum measure of procedural protection warranted under the circumstances." Mallette v. Arlington County Employees' Supp. Ret. Sys. II,
In Endicott-Johnson Corp. v. Encyclopedia Press, Inc.,
We need not decide whether the plaintiffs' claim is properly assessed through a direct application of Endicott-Johnson or through the Mathews balancing test, because in the end they show the same thing: the Act and the regulations provide all that due process requires. Endicott-Johnson suggests that service members who dispute the state court's allocation of retired pay to their former spouses must present their legal or factual arguments to the state courts, not save these arguments to raise them later before DFAS. Mathews requires attention to three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including . . . the fiscal and administrative burdens that the additional . . . procedural requirement would entail.
The next concern is the risk of error. In enforcing state court orders, DFAS might err in several ways. For example, DFAS might accept a state court order as regular on its face and make payments accordingly even though there is some hidden jurisdictional, procedural, or substantive defect in that order. The plaintiffs offer no evidence that DFAS makes an unacceptably high number of errors under the existing scheme; indeed, they present no evidence concerning the error rate at all. The plaintiffs also present no evidence that DFAS commonly overpays former spouses, based on its own errors or on those of state courts, and then fails to compensate service members fоr the resulting loss. The only relevant evidence in the record was to the contrary: a DFAS employee testified that if a former spouse is overpaid because of a DFAS error, once DFAS learns of the error it reduces future payments to that former spouse until the effect of the overpayment is canceled out. The agency's lack of a written regulation governing this process is not relevant.
Without empirical evidence that the payments mechanism does not work in practice, we can only consider the risk of error in the mechanism as described in the statutes and regulations themselves, and we conclude that the risk is minimal. To begin with, we have no basis for assuming that state courts routinely favor former spouses over service members in dividing military retirement pay. Any mistakes state courts do make seem likely to be caught by DFAS personnel who, following the regulations, scan the certified state court orders presented for facial compliance with jurisdictional and procedurаl safeguards for service members. See DOD 7000.14-R ¶ 2906. And when that process fails, aggrieved members may request DFAS reconsideration of the decision. Id. ¶ 2912.
The plaintiffs speculate that if DFAS were to go beyond the face of the state court orders to assess their validity, DFAS would catch even more state court errors. They do not specify exactly what additional investigation they believe DFAS personnel must conduct to comply with due process, though they hint that DFAS must provide written explanations for individual garnishment decisions as well as create a channel for appellate review of those explanations. Requiring the addition of any procedures would bear on the government's interest in the Mathews balancing. More intensive review would slow payments processing. DFAS sends monthly retirement pay distributions to about 54,000 former spouses, see Former Spouse Protection Report, supra part III.C., at 19 (providing figures as of April 1, 1999), and all of them might have to wait longer to get their share of retirement pay if DFAS employees must review in finer detail the underlying merits of state court divorce orders. If DFAS did not want to increase case-processing time, it would have to hire additional staff, which would raise the government's total expenses for running the payments mechanism.
We conclude that requiring DFAS to conduct additional review before complying with state court orders would harm the government's interest in minimizing administrative expenses without demonstrably reducing the error rate of the existing enforcement system. Due process does not require more than DFAS already provides pursuant to the Act. The district therefore correctly granted summary judgment to the Secretary on the procedural due process claim.
V.
For all of these reasons, we uphold the statute and affirm the district court orders of dismissal and summary judgment.
AFFIRMED
WIDENER, Circuit Judge, concurring:
I concur in the result. I write separately, however, because I am of opinion that the district court correctly determined that it lacked subject matter jurisdiction under the Rooker-Feldman doctrine.
Exxon Mobil reaffirmed that the doctrine
is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.
Exxon Mobil Corp.,
That is precisely the case we have here. The plaintiffs are inviting district court review of their individual state court judgments when they ask the federal court to declare the Act unconstitutional. These plaintiffs are "state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced." Exxon Mobil Corp.,
Thus, I would affirm the judgment of the district court but on its reasoning: that the Rooker-Feldman doctrine divested it of subject matter jurisdiction.