Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

David A. NORDSTROM, et al., Plaintiffs-Appellants,v.The STATE OF WASHINGTON, et al., Defendants-Appellees.

No. 88-4318.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1989.Decided Feb. 16, 1990.

Before: WALLACE, PREGERSON and NELSON, Circuit Judges.


Appellant David A. Nordstrom appeals the district court's dismissal of his action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. He also appeals the district court's imposition of a $2,500 Rule 11 sanction against his counsel. Appellant, along with nine other plaintiffs, sought a declaratory judgment defining the legal character of military retirement pay as "current wages" so as to invalidate those portions of Washington State divorce decrees that had awarded a percentage of this pay to plaintiffs' former wives as community property. We agree with the district court's determination that it had no subject matter jurisdiction over this claim. We therefore affirm the dismissal of the action. We reverse and vacate, however, the sanction order on the ground that the district court failed to provide appellant's counsel with notice and an opportunity to be heard prior to the imposition of sanctions.

Appellant David A. Nordstrom is a retired member of the Military who is subject to a final Washington decree of dissolution of marriage granting part of his military retirement pay to his former spouse. Appellant, along with nine other similarly situated military retirees, brought this action in the U.S. District Court for the Eastern District of Washington against the State of Washington, the Chief Justice of the Washington Supreme Court, the United States, and various Secretaries of the Departments of the United States Army, Navy, and Air Force who were responsible for distributing the retirement pay. Nordstrom and the others sought: (1) a declaratory judgment defining the character of military retirement pay and invalidating the Washington decrees of dissolution of marriage; (2) a finding that Washington State courts are unconstitutionally applying the state law of Washington; and (3) an injunction directing the federal service secretaries not to disburse military retirement pay in accordance with the allegedly invalid Washington divorce decrees.

District court Judge Alan A. McDonald dismissed the claims for lack of subject matter jurisdiction based on a previous decision he rendered in a similar case affirmed by the Ninth Circuit in an unpublished disposition. Williams v. State of Washington, No. C-86-848-AAM (E.D. Wash. Jan. 26, 1987), affirmed, 833 F.2d 1018 (9th Cir. 1987). In that case, presented to Judge McDonald by the same attorney who represents appellant in the present action, Judge McDonald dismissed the claims for lack of subject matter jurisdiction. In dismissing the present action, Judge McDonald found that appellant's counsel presented the same issues and arguments that Judge McDonald had earlier resolved in Williams. It was this similarity between the cases that led the judge to impose sanctions upon appellant's counsel pursuant to Fed. R. Civ. P. 11. The Williams disposition affirming Judge McDonald's decision has now been published. See Williams v. State of Washington, No. 87-3709 (9th Cir. Jan. 16, 1990).

The notice of appeal in this case was filed on October 28, 1988 and named "David A. Nordstrom, et al." as appellants. Federal Rule of Appellate Procedure 3(c) requires, inter alia, that " [t]he notice of appeal shall specify the party or parties taking the appeal." A failure to comply with this requirement results in a jurisdictional bar to the appeal for those not specifically named in the notice of appeal. Meehan v. County of Los Angeles, 856 F.2d 102, 105 (9th Cir. 1989) (citing Torres v. Oakland Scavenger Co., 108 S. Ct. 2405, 2409 (1988)). The use of the phrase "et al." to designate appellants other than the named party in a notice of appeal does not satisfy Fed. R. App. P. 3(c). Torres, 108 S. Ct. at 2409; Meehan, 856 F.2d at 105.

Since David A. Nordstrom was the only appellant specifically named in the notice of appeal, this appeal is valid only as to him. Although additional parties participated in the suit at the trial level, they were merely designated by the phrase "et al." in the notice of appeal. Therefore, their participation in this appeal is jurisdictionally barred by Fed. R. App. P. 3(c).

We review de novo the existence of subject matter jurisdiction. Williams v. State of Washington, No. 87-3709, slip. op. 495, 496 (9th Cir. Jan. 16, 1990). In Williams, we held that a complaint challenging a state court classification of military retirement pay as community property and subject to division as a part of a decree of dissolution of marriage does not state a federal question for purposes of establishing subject matter jurisdiction. Id. This holding was based on the well-pleaded complaint rule. Id.

Williams is the latest decision in a line of Ninth Circuit opinions on this issue. See Fern v. Turman, 736 F.2d 1367 (9th Cir. 1984), cert. denied, 469 U.S. 1210 (1985); Whittington v. Whittington, 733 F.2d 620 (9th Cir. 1984); Armstrong v. Armstrong, 696 F.2d 1237 (9th Cir.), cert. denied, 464 U.S. 933 (1983). In those cases, we established that the proper course in challenging state court divorce decrees characterizing military pay is to assert claims of federal preemption and unconstitutionality as affirmative defenses in state court actions. Williams, slip op. at 496; Fern, 736 F.2d at 1369; Whittington, 733 F.2d at 621. We held that federal review of these claims is properly sought through an appeal1  from the state court judgment to the United States Supreme Court. Whittington, 733 F.2d at 621.

In addition, we have held that a request for declaratory relief does not transform the state defense into a federal question. Armstrong, 696 F.2d at 1238. We emphasized in Williams that the federal preemption and unconstitutionality claims raised in an attack on a state court's characterization of military retirement pay have validity only as defenses to the state court judgment. Williams, slip op. at 497. They are therefore not claims arising under the laws of the United States. Fern, 736 F.2d at 1369 (citing Whittington, 733 F.2d 620; Armstrong, 696 F.2d 1237). Accordingly, in Williams, Fern, Whittington, and Armstrong, we held that there was no subject matter jurisdiction.

Appellant Nordstrom argues that because his case is "ripe for review," these cases are not controlling. We rejected an identical argument in Williams, finding it "unpersuasive." Williams, slip op. at 497. We find the present case indistinguishable from the Williams case and therefore hold that the district court properly dismissed appellant's claims for lack of subject matter jurisdiction. We need not address the other arguments raised by appellant because lack of subject matter jurisdiction alone is a sufficient ground to dismiss a complaint under Fed. R. Civ. P. 12(b) (1).

The district court imposed a $2,500 sanction against appellant's counsel pursuant to Fed. R. Civ. P. 11.2  In imposing this sanction, Judge McDonald stated: "The court feels that if there is ever an action brought that frames [Rule 11's] concerns for courts with crowded dockets and sorely needed time for legitimate inquiries, it's the case at bar."

We have held that procedural due process requires both notice and an opportunity to be heard before a court may sanction an attorney pursuant to Rule 11. Tom Growney Equip. v. Shelley Irrigation Dev., 834 F.2d 833, 835-36 (9th Cir. 1987).

In the present case, the record indicates that these procedural due process requirements were not met. As in Tom Growney, the court imposed sanctions on appellant's attorney without giving him notice of its intention to do so and without giving him an opportunity to explain the allegedly improper filings. Therefore, we reverse and vacate that portion of the district court's order that imposed sanctions on appellant's counsel.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Pursuant to the 1988 amendment of 28 U.S.C. § 1257, Supreme Court review may now be obtained only through a writ of certiorari. See 28 U.S.C.A. Sec. 1257(a) (West Supp.1989)


Of this amount, $1,000 was awarded to the State of Washington as attorney's fees, $1,000 was awarded to the federal government as attorney's fees, and the remaining $500 was to be contributed to the unappropriated fund of the district court