Charles B. Armstrong, Jr. v. Elayne A. Armstrong

The district court dismissed Armstrong’s declaratory judgment action for lack of subject matter jurisdiction. We affirm.

Armstrong’s marriage was dissolved by a California court in 1973. At that time, Armstrong was on active duty in the United States Marine Corps. The court awarded 45% of Armstrong’s future military retired pay to his ex-wife as part of the community property settlement. In 1981, the Supreme Court held that congressional intent precluded the states from treating military retired pay as community property. McCarty v. McCarty, 453 U.S. 210 , 101 S.Ct. 2728 , 69 L.Ed.2d 589 (1981). Armstrong sought a declaratory judgment in federal district court that the 1973 judgment was no longer enforceable.

The only asserted ground of subject matter jurisdiction is 28 U.S.C. § 1331 , which confers jurisdiction in cases “arising under” federal law. Armstrong argues that his case depends upon interpretation of military retirement statutes, 10 U.S.C. ch. 571, §§ 6321, et seq., and preemption of state law under the Supremacy Clause, U.S. Const., art. VI. A case does not arise under federal law, however, when the federal question is merely an anticipated defense to a state lawsuit.…