Unpublished Disposition, 902 F.2d 39 (9th Cir. 1990)

MEMORANDUM^** 

Virginia Gurland appeals from the district court's dismissal of her 42 U.S.C. § 1983 complaint for lack of jurisdiction and on the basis of res judicata. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Gurland seeks to enjoin the defendants from enforcing the Arizona Court of Appeals' judgment in Kelly v. Kelly, 160 Ariz. 487, 774 P.2d 226 (Ariz.App.1989). The court held in that case that Gurland has no interest in the military retirement benefits of her former husband, Kelly. Id., 774 P.2d at 228.

We consider de novo a dismissal based on subject matter jurisdiction. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). Federal district courts lack the power to sit in direct review of state court decisions. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983); MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987). If the suit before the district court is merely a continuation of the state court proceedings, the district court lacks jurisdiction. MacKay, 827 F.2d at 544. This is also the case where the constitutional questions presented to the district court are "inextricably intertwined" with the state court's decision. Feldman, 460 U.S. at 482 n. 16. See also Worldwide Church of God v. McNair, 805 F.2d 888, 892 (9th Cir. 1986).

Although Gurland's complaint is couched in constitutional terms, she essentially seeks review of the decision of the Arizona Court of Appeals. The issue of whether Gurland had an interest in Kelly's benefits, and if so whether that interest was divested by McCarty v. McCarty, 453 U.S. 210 (1981), was the precise issue addressed by the parties before the state court. Gurland's argument to the district court that the Arizona court's resolution of this issue against her violated her constitutional rights does not present a new issue. Rather, it is an issue which is "inextricably intertwined" with the state court's decision. See McNair, 805 F.2d at 892. Moreover, Gurland's contention that her challenge is only to the rule of law promulgated in Kelly, as opposed to a final state court decision in a particular case, lacks merit. Where constitutional claims are inextricably intertwined with the state court's resolution of a particular case, the case is not a mere "general" constitutional challenge. See id. at 892.

Gurland, however, contends that the result in this case is controlled by our decision in Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985), vacated on other grounds, 477 U.S. 902 (1986). That case is inapplicable because in the instant case the state court did not act sua sponte.

The appellees urge us to impose sanctions on Gurland for filing a frivolous appeal. This court has discretion to impose sanctions under Fed. R. App. P. 38 and 28 U.S.C. § 1912 even if it lacks jurisdiction to hear the merits of the appeal. See Trohimovich v. Commissioner, 776 F.2d 873, 875 (9th Cir. 1985). Sanctions are appropriate if the appeal is frivolous, i.e., the result is obvious or the arguments are "wholly without merit." Wilcox v. C.I.R., 848 F.2d 1007, 1009 (9th Cir. 1988). We decline to impose sanctions in the instant case.

AFFIRMED.