Adkins v. Rumsfeld

• Decision Date: 18 September 2006
• Docket Number: No. 05-2307.,05-2307.
• Citation: 464 F.3d 456
• Parties: Tammy 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.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 456

464 F.3d 456

Tammy 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.

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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 members 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, 503 U.S. 594, 599, 112 S.Ct. 1619, 118 L.Ed.2d 243 (1992); see 10 U.S.C. §§ 1406-07, 1409 (setting forth rules for computation of retirement pay). Federal law may impose obligations on members even after retirement. Many retirees remain members of the Armed Forces. See, e.g., 10 U.S.C. § 3075(a) (Army); § 8075(a) (Air Force). They may in some circumstances be recalled into active duty, see 10 U.S.C. § 688, and they may not violate the provisions of the Uniform Code of Military Justice, see § 802(a)(4). These obligations, though significant, do not imply that military retirement pay is to be regarded for all legal purposes as compensation for reduced job activities during retirement. In some contexts this pay may instead be viewed as "deferred compensation for past services," Barker, 503 U.S. at 603, 112 S.Ct. 1619, just like ordinary public sector employee pensions. Divorce is one example. Id.

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, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890). But application of state family law under some narrow circumstances cuts into substantial federal interests and must yield to federal law under the Supremacy Clause. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581-83, 590, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). The Supreme Court identified one of these circumstances in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). There the Court found an irreconcilable conflict between the federal statutes governing military retirement pay — which the Court construed as making retirement pay the property of the retiree — and state law that treated pay earned during marriage as divisible spousal property. The Court went on to hold that state law could not be allowed to divide a military retiree's retirement pay in divorce proceedings. Id. at 232-33, 101 S.Ct. 2728. That is, the retiree's former spouse could not receive a share of the retiree's retirement pay. Remarking that the "plight of an ex-spouse of a retired service member is often a serious one," the Court emphasized that its determination was subject to legislative correction: "Congress may well decide . . . that more protection should be afforded [such] a former spouse. . . . This decision . . . is for Congress alone." Id. at 235-36, 101 S.Ct. 2728.

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, 490 U.S. 581, 594-95, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). Although it was signed into law on September 8, 1982, and became effective February 1, 1983, the statute expressly covered payments to retirees after June 25, 1981, the day the Court handed down McCarty. Congress later clarified that former spouses could not seek a share of retired pay if their divorce or separation became final before June 25, 1981, and the state court did not "treat (or reserve jurisdiction to treat) any amount of [the] retired pay of the member" as divisible property. 10 U.S.C. § 1408(c)(1).

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, 503 U.S. at 603, 112 S.Ct. 1619 (describing the Act as "giving the States the option of" dividing such pay). It appears that nearly every state has elected to treat military retired pay as divisible marital property. See generally State-by-State Analysis of Divisibility of Military Retired Pay, 2002 Army Law. 42. Nevertheless, a division under § 1408(c)(1) can only be made by a state court that has "jurisdiction over the member" based on residence, domicile, or the member's consent. 10 U.S.C. § 1408(c)(4).

Another provision of the Act created a "payments mechanism," Mansell, 490 U.S. at 585, 109 S.Ct. 2023, under which the military directly transmits to former spouses the share of retired pay to which they are entitled under state court divorce decrees. See 10 U.S.C. § 1408(d). To be eligible for the direct payments, the former spouse must have been married to the member for at least 10 years, and during the marriage the member must have completed at least 10 years of creditable military service. § 1408(d)(2). A former spouse initiates the direct payment process by serving upon the Secretary concerned a state court order "specifically providing for the payment of an amount of the disposable retired pay." § 1408(d)(1). The court order must be "regular on its face," § 1408(b)(1)(B), which means that it "is issued by a court of competent jurisdiction," § 1408(b)(2)(A), and contains no indication that it was issued without legal authority, § 1408(...