Simanonok v. Simanonok

• Decision Date: 08 November 1990
• Docket Number: No. 89-1626,89-1626
• Citation: 918 F.2d 947
• Parties: Joseph E. SIMANONOK, Plaintiff-Appellant, v. Germaine B. SIMANONOK, Casper Weinberger, Individually and in capacity as Secretary of the Department of Defense, Wanda Davis and Alice K. Smith, Individually and in their capacities as Agents for the Department of Defense and/or the United States Air Force, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

Page 947

918 F.2d 947

Joseph E. SIMANONOK, Plaintiff-Appellant, v. Germaine B. SIMANONOK, Casper Weinberger, Individually and in capacity as Secretary of the Department of Defense, Wanda Davis and Alice K. Smith, Individually and in their capacities as Agents for the Department of Defense and/or the United States Air Force, Defendants-Appellees.

No. 89-1626.

United States Court of Appeals Federal Circuit.

Nov. 8, 1990.

Joseph E. Simanonok, Major, USAF, Ret., Dover, N.H., pro se.

Douglas E. Wade, Major, USAF, Trial Atty., General Litigation Div., Office of The Judge Advocate General, of Washington, D.C., submitted for defendants-appellees. With him on the brief was Stuart E. Schiffer, Acting Asst. Atty. Gen. Jeanne L. Coleman, Tampa, Fla., for defendant-appellee, Germaine B. Simanonok.

Before RICH, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MILLS, District Judge. ^*

RICHARD MILLS, District Judge.

Appellant--who likes to refer to himself as "Fugitive Slave Appellant Simanonok," but whom we shall call simply Simanonok--has asked that we reverse the district court's granting of appellees' motions for summary judgment.

We hold, however, that the district court lacked jurisdiction over that portion of this lawsuit which would afford this court appellate jurisdiction, and accordingly we cannot reach the merits.

Because we do not reach the merits, we will likewise not exhaustively summarize the facts of this case, but instead will provide only enough to support our conclusions and establish the context. For a more complete rendition of the factual backdrop, see Simanonok v. Simanonok, 787 F.2d 1517 (11th Cir.1986) (a previous appeal of this case to our sister circuit, about which there will be more later).

The genesis of this case occurred in California on May 1, 1972, when Simanonok divorced his wife of 24 years. At that time (as at present), Simanonok was receiving retirement pay from his 20-year stint in the armed forces (he retired from the United States Air Force in 1969 with the rank of Major). The California divorce decree determined that Simanonok's retirement pay was community property, and ordered him to pay 23/54ths of that pay (42.59%) to his former wife. In 1981, though, the Supreme Court invalidated divorce decrees such as the Simamonoks' to the extent those decrees provided that military retirement pay could be subject to a community property determination, by holding that the Supremacy Clause preempted any such state determinations of the allocation of federal retirement benefits. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

Congress responded quickly to the McCarty ruling, and in 1982 enacted the Former Spouse Protection Act, 10 U.S.C. Sec. 1408 (FSPA), which allows state courts to consider 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."

In her turn, Simanonok's former wife Germaine took quick action to regain the benefit of the California divorce decree, and in March 1983 she informed the Air Force of that decree and asked that it resume garnishing Simanonok's retirement pay of the decreed amount. The Air Force promptly determined that the divorce decree was regular on its face; it then contacted Simanonok, informed him of its determination, and inquired whether he could show that the decree had ever been amended, superceded, or set aside. Simanonok answered that the Air Force's questions violated his rights under federal statutes, and that the FSPA was unconstitutional. The Air Force was unmoved by these arguments, though, and forthwith began garnishing 23/54ths of Simanonok's monthly pay, thus providing his former wife with approximately $797.00 per month.

Simanonok filed this suit on December 27, 1983, in the Middle District of Florida. His complaint named as defendants his ex-wife Germaine, Casper Weinberger, both as an individual and in his official capacity as Secretary of Defense, and Wanda Davis and Alice Smith, the Department of Defense employees who apparently processed the monthly garnishment, in both their individual and official capacities. The suit seeks a ruling that Simanonok has been deprived of his constitutional rights to due process of law and equal protection of the laws in the garnishment proceedings, and asks for millions of dollars in compensatory and punitive damages, as well as declaratory and injunctive relief.

Simanonok had little success with his suit in the district court. On September 17, 1984, that court agreed with the Government's position and dismissed the suit pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for want of jurisdiction, holding that the suit was "essentially a challenge to the validity of his California divorce decree."

Simanonok appealed that ruling to the Eleventh Circuit and that court reversed, holding that it was "unable to say that Mr. Simanonok's complaint [was] so completely devoid of merit that it [could not] meet the generous pleading standards heretofore established by [that court]." Simanonok, 787 F.2d at 1521. The court remanded to provide to Simanonok "an opportunity to clarify and support his objections to the Former Spouse Protection Act," noting that "given the conflicting versions of exactly what procedural rights a retiree is afforded under the Act and on the sketchy record before [it], [it was] unable to say definitely that a violation of due process has not occurred." Id. at 1523.

On remand, Simanonok filed an amended complaint, and later a second amended complaint, and in due course the district court considered and granted defendants' motion to dismiss or in the alternative for summary judgment. In its order entered July 29, 1988, the district court held that it had jurisdiction over all aspects of Simanonok's suit (despite the federal defendants' assertions to the contrary), but that sovereign immunity barred the suit against the federal defendants in their official capacities. The district court also held that Simanonok had no legitimate claim of entitlement to the portion of his retirement pay awarded to his ex-wife by their divorce decree, and so was not deprived of any property interest through the workings of the FSPA; alternatively, the district court held that in any event Simanonok had been provided all the procedure due him under the circumstances. The district court also held that the FSPA did not deny to Simanonok equal protection of the laws, and found Simanonok's argument that the California divorce court lacked the jurisdiction to affect his military retirement pay to be unfounded and untimely. Finally, the lower court found Simanonok's other challenges to the FSPA--for instance, that it violates the Universal Declaration of Human Rights, the American Convention on Human Rights, the Thirteenth Amendment, the Eleventh Amendment, and a host of other statutory, constitutional and administrative provisions--to be so lacking in merit as to warrant no serious consideration. The district court also renewed its decision to not enter a default judgment against Germaine Simanonok.

Simanonok once again appealed to the Eleventh Circuit, but that court, upon the Government's motion, transferred the appeal to this court, because "[t]he district court's jurisdiction was based at least in part on 28 U.S.C. Sec. 1346(a)(2)." See 28 U.S.C. Sec. 1295(a)(2).

And so this case arrived at our doorstep. Simanonok, of course, wants us to reverse the district court's "incredible post-remand order," arguing that "[t]he demeanor and output of the District Court have been very biased and prejudicial to Fugitive Slave Appellant...." The Government asks that we remand the portion of this suit leveled against the federal defendants in their official capacities, with an order that the district court transfer the case to the United States Claims Court, arguing that the district court lacked jurisdiction over that portion of the suit once the accrued amount of garnished pension topped $10,000, by virtue of the Tucker Act, 28 U.S.C. Sec. 1346(a)(2). Simanonok disputes this, claiming that the district court appropriately exercised jurisdiction over his Bivens action, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

None of the parties has addressed this court's jurisdiction, but we do so anyway, as we are beholden to do.

We note at the outset that Simanonok misconstrues the Government's jurisdictional argument. There is no question as to whether the district court had jurisdiction over those portions of the complaint seeking relief against the federal defendants in their individual capacities as a Bivens action (it is less clear what possible grounds Simanonok has to haul his ex-wife into federal court merely for utilizing a duly-enacted federal statute, see, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Wagner v. Metropolitan Nashville Airport Authority, 772 F.2d 227, 230 (6th Cir.1985), but we pass no judgment on this question now). As for Simanonok's claims against these federal defendants in their official capacities, however, it is well-established that no Bivens relief is available under circumstances such as these, because the United States has not waived its sovereign immunity for such an action, Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982); instead, relief against the United States can only proceed based upon some express waiver of sovereign immunity.

Simanonok's claims against the federal defendants in their official capacities, which are in effect suits brought against the United States itself, Amoco Production Co. v. Hodel, 815 F.2d 352, 359 (5th Cir.1987), cert. denied, 487...