Simanonok v. Simanonok

• Citation: 787 F.2d 1517
• Decision Date: 29 April 1986
• Docket Number: No. 84-3811,84-3811
• Parties: Joseph E. SIMANONOK, Plaintiff-Appellant, v. Germaine B. SIMANONOK, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1517

787 F.2d 1517

Joseph E. SIMANONOK, Plaintiff-Appellant, v. Germaine B. SIMANONOK, et al., Defendants-Appellees.

No. 84-3811.

United States Court of Appeals, Eleventh Circuit.

April 29, 1986.

Joseph E. Simanonok, pro se.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE and HATCHETT, Circuit Judges, and SWYGERT, ^* Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

Joseph and Germaine Simanonok were married on September 8, 1948 in Madison, Maine, and divorced on May 1, 1972 in Orange County, California. ¹ California is one of eight states to apply community property principles to the division of property in divorce proceedings. ² Cal.Civ.Code Sec. 4800(a). In community property states each spouse has a one-half interest in all property acquired by either spouse during the term of the marriage. Under California law pension benefits are community property to the extent that they are earned through employment occurring during the course of a marriage. In re Gillmore, 29 Cal.3d 418, 174 Cal.Rptr. 493, 629 P.2d 1, 3 (1981).

Joseph Simanonok, the plaintiff-appellant in this case, retired in 1969 from the United States Air Force after twenty years of active duty with the rank of major. This period of service entitles him to retirement pay. 10 U.S.C. Secs. 3911, 3929. In its judgment of dissolution the Superior Court of California found that this retirement pay was community property under California law and ordered Simanonok to pay 23/54ths of his retirement pay, "as and when" he received it, to his former wife. ³

The proposition that federal military retirement pay can be considered community property for purposes of a state divorce decree has not always been certain. In In re Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, cert. denied, 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974), and again in In re Milhan, 27 Cal.3d 765, 166 Cal.Rptr. 533, 613 P.2d 812 (1980), the California Supreme Court held that military retirement pay could be considered by a court in the division of marital property subsequent to a divorce. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court disagreed holding that there was a conflict between the military retirement scheme and the community property principles asserted by the California courts. The Court invoked the Supremacy Clause of the Constitution to reverse a California divorce decree applying community property principles to military retirement pay. See also Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (striking down California's application of community property principles to federal Railroad Retirement benefits).

In response to the McCarty decision Congress, in 1982, enacted the Former Spouse Protection Act, 10 U.S.C. Sec. 1408. The Act provides that a court may treat military retirement pay "either as property solely of the [retiree] or as property of the [retiree] and his spouse in accordance with the law of the jurisdiction of such court." 10 U.S.C. Sec. 1408(c)(1). According to the legislative history the "primary purpose" of the Act was to reverse the effect of the McCarty decision. S.Rep. No. 97-502, 97th Cong., 2d Sess. 1, reprinted in 1982 U.S. Code Cong. & Ad. News 1596. The Act "would accomplish this objective by permitting Federal, State, and certain other courts, consistent with the appropriate laws, to once again consider military retired pay when fixing the property rights between the parties to a divorce, dissolution, amendment or legal separation." Id. ⁴

In a letter received March 8, 1983, Germaine Simanonok asked the Air Force to initiate direct payment (garnishment) of her portion of her former husband's retirement pay. She made no allegations that Major Simanonok had been remiss in making those payments on his own initiative. In a letter dated March 22, 1983, Mr. Simanonok was informed by an Air Force claims examiner that Germaine Simanonok's application appeared to be valid. He was afforded an opportunity to show whether the court order his ex-wife had submitted had been amended, superseded, or set aside. In a letter dated April 9, 1983, Simanonok protested the planned garnishment of his retirement pay, but he did not, indeed could not, claim that his divorce decree had been amended, superseded, or set aside. Instead, in the April letter, and again in a letter dated May 20, 1983, Simanonok raised a series of legal objections to the execution of the Former Spouse Protection Act against his retirement pay. Simanonok's objections were not well-received by Air Force authorities. ⁵

Appellant thereupon filed a complaint in the federal district court for the Middle District of Florida on December 27, 1983, alleging violations of an assortment of constitutional and legal rights and seeking millions of dollars in punitive and compensatory damages. The action was filed against his former spouse, the Secretary of Defense, and various Air Force officials. ⁶ On April 30, 1984, the Government filed a motion to dismiss for lack of federal subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). ⁷ On September 17, 1984 the district court granted the motion declaring that the plaintiff's complaint is "essentially a challenge to the validity of his California divorce decree."

I

We begin by observing that it is extremely difficult to dismiss a claim for lack of subject matter jurisdiction. "[T]he test is whether the cause of action alleged is so patently without merit as to justify ... the court's dismissal for want of jurisdiction." Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 70, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978). In Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), the Supreme Court reversed lower court rulings that the complaint in that case had failed to establish federal subject matter jurisdiction. The Court noted that the petitioners' assertion "cannot be said to be so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." 414 U.S. at 666, 94 S.Ct. at 777. See also Hagans v. Lavine, 415 U.S. 528, 542-43, 94 S.Ct. 1372, 1381-82, 39 L.Ed.2d 577 (1974). In the seminal case of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Court stated that:

Jurisdiction ... is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.... A suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

327 U.S. at 682, 66 S.Ct. at 776.

This court has also erected formidable barriers to dismissal for want of subject matter jurisdiction. In Williamson v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), ⁸ the court observed that "[w]here the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action ... is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." Williamson, 645 F.2d at 415. ⁹ The court went on to state that a claim cannot be dismissed for lack of subject matter jurisdiction because of the absence of a federal cause of action unless the claim "has no plausible foundation or is clearly foreclosed by a prior Supreme Court decision." Id. at 416.

In Eaton v. Dorchester Development, 692 F.2d 727 (11th Cir.1982), the court noted that "[w]here the jurisdictional issues are intertwined with the substantive merits, the jurisdictional issues should be referred to the merits, for it is impossible to decide one without the other." Id. at 733. See also Brock v. Writers Guild, 762 F.2d 1349, 1352, n. 3 (9th Cir.1985). In the present case the existence of subject matter jurisdiction depends upon the plausibility of Major Simanonok's federal claims. Our task in reviewing the district court's dismissal has thus been immensely simplified by prior authority. Where the existence of federal subject matter jurisdiction is based on alleged violations of federal law, a district court may not dismiss under Rule 12(b)(1) unless it determines that the claimed violations are completely meritless. ¹⁰

We are even more reluctant to approve a dismissal under Rule 12(b)(1) where the plaintiff, as in this case, is proceeding pro se. It is well-established that a pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). See Cook v. Whiteside, 505 F.2d 32, 34 (5th Cir.1974). See also Beard v. Stephens, 372 F.2d 685, 689 (5th Cir.1967). Moreover, Fed.R.Civ.P. 8(f) requires that all pleadings must be construed so as to do "substantial justice" to the parties. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983).

II

We are unable to say that Mr. Simanonok's complaint is...