Steel v. U.S.

• Decision Date: 07 April 1987
• Docket Number: No. 86-5638,86-5638
• Citation: 813 F.2d 1545
• Parties: Helen T. STEEL (Muff), Plaintiff-Appellant, v. UNITED STATES of America and Dean E. Steel, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1545

813 F.2d 1545

55 USLW 2576

Helen T. STEEL (Muff), Plaintiff-Appellant, v. UNITED STATES of America and Dean E. Steel, Defendants-Appellees.

No. 86-5638.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 8, 1987.

Decided April 7, 1987.

Kim W. Cheatum, San Diego, Cal., for plaintiff-appellant.

Michael E. Quinton and Steven A. Micheli, San Diego, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before FERGUSON, BOOCHEVER and WIGGINS, Circuit Judges.

FERGUSON, Circuit Judge:

Plaintiff-Appellant Helen T. Steel (Muff) seeks to establish the validity of a divorce judgment she obtained in California in 1978 over another judgment obtained by her former husband, Defendant-Appellee Dean Steel, in Virginia. If the validity of her judgment is established through a declaratory action, Helen seeks to require the Secretary of the Air Force to honor the California court's division of Dean's Air Force retirement benefits and to pay her share to her directly under the provisions of the Federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. Sec. 1408 [hereinafter FUSFSPA]. The district court dismissed Helen's complaint. It found that Dean did not have sufficient minimum contacts at the time of the filing of the complaint to allow personal jurisdiction, and that the United States has not waived sovereign immunity via FUSFSPA. We affirm the district court as to the dismissal of the United States but find, however, that measured properly, Dean had sufficient contacts with the State of California to allow personal jurisdiction.

I.

Helen T. Steel (Muff) and Dean Steel met in San Diego, California, in 1956, and were married in Las Vegas, Nevada. ¹ Their first child was born in San Diego on February 2, 1961. Their second child was born in Sacramento, California, on December 7, 1962. Dean had entered active duty with the Air Force in June 1961, and received a number of different assignments until 1972, when he was stationed in Italy.

In 1976, Dean received orders that would return him to a post at Victorville, California. In preparation for the family's return, Helen and the family returned to San Diego in June. Dean remained in Italy to complete his tour of duty, which extended through August. Dean and Helen purchased a house in the San Diego area, and they expected that Dean would commute from Victorville on weekends to be with his family. Dean also purchased an automobile for Helen's use, registering it in California in his name.

Helen's expectations were disturbed, however, by a change in Dean's assignment from Victorville to Washington, D.C. Dean returned to California for the month of August, and he and Helen determined that he would go to Washington while the family remained behind in San Diego. The change in assignment was at Dean's request. Dean moved from California to Washington in September 1976. Dean believes that he legally separated from Helen at that time, while Helen contends they separated on January 15, 1977, a time of "marital difficulties."

On January 20, 1978, a Virginia court entered a "Final Decree of Divorce," purporting to order that "the marital rights of each party to this suit in and to any property owned by the other be and the same are hereby extinguished." On December 21, 1977, Helen had filed a proceeding for divorce in the California Superior Court, and that court entered an Interlocutory Judgment of Divorce on May 23, 1978. That court found that Dean's anticipated service retirement benefits were community property under the laws of California, and awarded Helen an interest in those benefits in an amount to be determined upon Dean's retirement.

On May 9, 1978, however, Dean moved to quash the California proceedings on the grounds that he was not amenable to the service of process by California courts. On July 13, 1978, the California court denied the motion, and Dean did not appeal that decision.

In 1984, Dean retired, and Helen obtained an implementing order from the California court awarding her interest in his benefits. Helen served a copy of this judgment upon the Secretary of the Air Force under the Federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. Sec. 1408, in order to receive direct payment of the amounts due her. Dean contested the award, serving the Secretary with a copy of the divorce judgment he had obtained in Virginia. The Secretary, faced with two conflicting decrees, turned to the procedure specified by FUSFSPA and withheld the amount in controversy from both parties pending a determination of the validity of the two decrees.

On June 17, 1985, Helen filed suit in the Southern District of California. Helen brought suit against Dean and the United States in an effort to secure her rights under FUSFSPA. She sought declaratory relief under 28 U.S.C. Sec. 2201 to establish the priority of the California state court judgment of divorce and division of marital property over the Virginia judgment. She alleged subject-matter jurisdiction based upon diversity of citizenship and FUSFSPA, although the complaint failed to allege any amount in controversy. The record reveals, however, that the value of the share of Dean's past and future pension payments claimed by Helen exceeds $10,000. See Aetna Casualty & Sur. Co. v. Flowers, 330 U.S. 464, 467-68, 67 S.Ct. 798, 799-800, 91 L.Ed. 1024 (1947); see also Canadian Indem. Co. v. Republic Indem. Co., 222 F.2d 601, 603 (9th Cir.1955). The government answered, suggesting that Helen failed to state a claim against it, and that its actions were substantially justified. It also moved for interpleader to bring Dean into the action. Dean moved to dismiss for lack of personal jurisdiction. The government then moved to dismiss for lack of subject-matter jurisdiction and on the basis of sovereign immunity. The district court ruled in favor of both defendants and dismissed the action in an unpublished order entered January 6, 1986. Although the order was not accompanied by findings of facts and conclusions of law, the court stated that it granted Dean's motion because "minimum contacts here are insufficient," for the instant proceedings was "not simply ... an enforcement of a decree, but a new dispute." The district court later reaffirmed that it was examining minimum contacts as they existed at the time of the complaint. The district court also dismissed the action against the government on sovereign immunity grounds.

II.

In most cases, when a trial court has dismissed for lack of personal jurisdiction without holding an evidentiary hearing, we review the materials presented (in this case, affidavits) de novo to determine whether the plaintiff has made a prima facie showing of personal jurisdiction over the defendant. Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir.1986); Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986). All factual disputes presented by the affidavits are resolved in favor of the plaintiff. See Pacific Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir.1985). In this case, however, the parties disagree on only two jurisdictional facts that could not affect the result here: whether Dean was registered to vote in California and when the separation occurred. We review the dismissal of the government on the basis of sovereign immunity de novo. See United States v. Yakima Tribal Court of the Yakima Indian Nation, 806 F.2d 853, 857 (9th Cir.1986).

III.

The district court did not determine whether it had subject-matter jurisdiction over Helen's complaint, except insofar as it dismissed the United States as barred by sovereign immunity. This court must address the question, however, for if we lack subject-matter jurisdiction it is unnecessary to determine whether Dean's contacts with California were sufficient to confer personal jurisdiction. We conclude that the district court had subject-matter jurisdiction based on diversity of citizenship. Helen contends that the court also had jurisdiction under FUSFSPA. Congress enacted that law to reverse the Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). See H.R.Conf.Rep. No. 749, 97th Cong., 2d Sess. 165 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 1555, 1569, 1570; S.Rep. No. 502, 97th Cong. 2d Sess. 1 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 1596, 1596. The Court held in McCarty that federal law preempted a spouse's community property interest in federal retirement benefits. See 453 U.S. at 235, 101 S.Ct. at 2742. Subsection 1408(c)(1) of Title 10 specifically overrides the decision in McCarty and authorizes courts to treat retirement benefits as community or separate property in accord with the law of the applicable state.

FUSFSPA, however, was not intended to expand the subject-matter jurisdiction of federal courts; it merely empowered a court that otherwise had jurisdiction to divide marital property. In defining "court" for the purposes of the statute, section 1408(a)(1) incorporates the requirement of "competent jurisdiction." FUSFSPA does not create jurisdiction, but grants power to courts once they have jurisdiction. Thus, no federal question jurisdiction lies, and diversity jurisdiction can be the only basis for subject-matter jurisdiction here. Because the case is brought under diversity, the court must apply the standards of due process applicable to state assertion of jurisdiction. See Republic Int'l Corp. v. Amco Eng'rs, Inc., 516 F.2d 161, 167 (9th Cir.1975). ²

We must apply California's long-arm statute to determine if jurisdiction may be had over Dean. The first issue is the timing of minimum contacts. The district court examined Dean's contacts with California at the time of the suit. At the hearing, the judge stated:

THE COURT: I think the minimum contacts here are insufficient based on the evidence that's been...