FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 20, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10187

Non-Argument Calendar

________________________

D. C. Docket No. 04-80443-CV-KLR

STEWART GREENBERG,

Plaintiff-Appellant,

versus

JAMES ZINGALE, Chairman,

Executive Director Florida

Department of Revenue, in

his official capacity,

FLORIDA DEPARTMENT OF REVENUE,

15TH JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR PALM BEACH COUNTY, The

Honorable Edward Fine, Chief Judge,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 20, 2005)
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Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

Plaintiff Stewart Greenberg appeals the district court’s grant of the

defendants’ motion to dismiss his complaint challenging the constitutionality of

Florida’s alimony provisions, Fla. Stat. ch. § 61.08 et seq. After review, we

affirm.

I. BACKGROUND

In a separate state court case, the Florida state trial court awarded alimony

to Mrs. Elaine Greenberg, pursuant to Fla. Stat. ch. § 61.08. Subsequently, Mr.

Greenberg, pro se, filed a complaint in federal court challenging the

constitutionality of Florida’s alimony provisions. Upon the defendants’ motion,

the district court dismissed Greenberg’s complaint. Greenberg appeals. 

II. DISCUSSION

A. Facial Constitutional Challenges

On appeal, Greenberg argues that the alimony provisions in Fla. Stat. Ann. §

61.08 et seq., are facially unconstitutional because they violate: (1) the due process

clause of the Fourteenth Amendment; (2) the equal protection clause of the

Fourteenth Amendment; and (3) the Thirteenth Amendment’s ban on involuntary

servitude.
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1. Due Process

We first conclude that Greenberg has failed to state a substantive due

process claim. The Due Process Clause of the Fourteenth Amendment provides

that no “State [shall] deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. Substantive due process protects

those rights that are considered “fundamental” or “implicit in the concept of

ordered liberty.” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en

banc) (quotation marks omitted). This Court has recognized that “the right to

marry is a fundamental right protected by the substantive component of the Due

Process Clause of the Fourteenth Amendment. . . .” Parks v. City of Warner

Robins, Ga., 43 F.3d 609, 613 (11th Cir. 1995) (citing Planned Parenthood v.

Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992); Zablocki v. Redhail, 434 U.S. 374,

98 S. Ct. 673 (1978); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967);

McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994)).

Greenberg argues that the district court erred in failing to apply the strict

scrutiny standard of review to Fla. Stat. ch. § 61.08. We disagree. “[T]he

Supreme Court has held that not every statute ‘which relates in any way to the

incidents of or prerequisites for marriage’ must be subjected to strict scrutiny.”

Parks, 43 F.3d at 613 (quoting Zablocki, 434 U.S. at 386, 98 S. Ct. at 681). “‘To
Although there is no decision directly on point under the United States Constitution, the 1

Florida courts have rejected a constitutional challenge to Florida’s alimony provisions under the

Florida Constitution. See Pacheco v. Pacheco, 246 So. 2d 778, 782 (Fla. 1971) (considering

under the Florida Constitution the constitutionality of permitting the denial of alimony to an

adulterous wife, and concluding that, “§ 61.08 is a valid exercise of the State’s police power and

does not contravene constitutional assurances of due process and equal protection”); see also

Barna v. Barna, 850 So. 2d 603, 604 (Fla. Dist. Ct. App. 2003) (finding constitutional attack on

Florida alimony provisions to be so frivolous as to support the award of attorney’s fees against

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the contrary, reasonable regulations that do not significantly interfere with

decisions to enter into the marital relationship may legitimately be imposed.” Id.

(emphasis in original) (quoting Zablocki, 434 U.S. at 386, 98 S. Ct. at 681). “A

statutory classification must interfere “directly and substantially” with the right to

marry before it violates the Due Process Clause.” Id. (quoting Zablocki, 434 U.S.

at 387, 98 S. Ct. at 681). 

We conclude that Florida’s alimony provisions do not directly and

substantially interfere with the right to marry. The Florida alimony provisions do

not prohibit marriage, nor prevent a person from marrying, nor substantially

interfere with the right to marry. Moreover, the alimony provisions do not

prohibit divorce, prevent a person from dissolving his or her marriage, nor

substantially interfere with the decision to divorce. Indeed, the alimony provisions

do not affect a Floridian’s ability to obtain a divorce or to remarry. The Florida

provisions simply provide a mechanism for parties to receive spousal support

while they dissolve their marriage. 

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the party who asserted it). 

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Because Florida’s alimony provisions do not directly and substantially

interfere with the right to marry, we subject the provisions to rational basis

scrutiny. Parks, 43 F.3d at 614-15. Rational basis review only requires that a

statute be “rationally related to the achievement of a legitimate government

purpose.” Gary v. City of Warner Robins, Ga., 311 F.3d 1334, 1338-39 (11th Cir.

2002) (quotation marks and citation omitted). We conclude, and Greenberg does

not dispute, that the alimony provisions satisfy rational basis review. Thus,

Greenberg has failed to state a substantive due process claim.

2. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that no

state shall “deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1.

In Orr v. Orr, 440 U.S. 268, 282-83, 99 S. Ct. 1102, 1112-14 (1979), the

Supreme Court struck down Alabama’s alimony statute because it allowed wives,

not husbands, to receive alimony. The Alabama alimony statute on its face treated

men filing for divorce differently than women, even though the two were similarly

situated. Applying intermediate scrutiny, the Supreme Court determined that the

statute violated the Equal Protection Clause. Id.
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In this case, Greenberg has not alleged that the Florida alimony provisions

on their face create classifications between similarly situated people. Any party

filing for divorce has the right to request alimony pursuant to Fla. Stat. ch. §

61.08. Accordingly, Greenberg has failed to state a claim under the Equal

Protection Clause.

3. Involuntary Servitude

The Thirteenth Amendment provides that “[n]either slavery nor involuntary

servitude, except as a punishment for crime . . ., shall exist within the United

States. . . .” U.S. Const. Amend XIII, § 1. As stated by the Supreme Court, “[t]he

primary purpose of the [Thirteenth] Amendment was to abolish the institution of

African slavery as it had existed in the United States at the time of the Civil War. .

. .” United States v. Kozminski, 487 U.S. 931, 942, 108 S. Ct. 2751, 2759 (1988). 

In Kozminski, the Supreme Court noted that “in every case in which this Court has

found a condition of involuntary servitude, the victim had no available choice but

to work or be subject to legal sanction.” Id. at 943, 108 S. Ct. 2760.

In this case, Greenberg has failed to state a cause of action under the

Thirteenth Amendment. Alimony is not the type of subject matter the Thirteenth

Amendment was designed to address. Further, the Florida alimony provisions do

not employ the use of physical or legal coercion to force people into involuntary
Greenberg also argues that he was entitled to an evidentiary hearing because the district 2

court failed to accept the facts in his complaint as true; however, he fails to state any specific

examples of facts that the district court did not accept as true. 

The Rooker-Feldman doctrine is based on the following two cases: District of Columbia 3

Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust

Co., 263 U.S. 413, 44 S. Ct. 149 (1923).

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servitude. Although Floridians who are required to pay alimony must do so or

face consequences, such as being held in contempt of court, the district court

correctly concluded that this does not amount to involuntary servitude.2

B. As Applied Constitutional Challenge

Although the district court had jurisdiction to address Greenberg’s facial

constitutional challenges to Fla. Stat. ch. § 61.08 et seq., the district court correctly

determined that it lacked subject matter jurisdiction under the Rooker-Feldman

doctrine to address Greenberg’s “as applied” constitutional challenge. In contrast 3

to the facial constitutional challenge, Greenberg’s as applied challenge is

inextricably intertwined with the state court proceedings and is barred by the

Rooker-Feldman doctrine.

According to the Rooker-Feldman doctrine, “‘a United States District Court

has no authority to review final judgments of a state court in judicial proceedings. 

Review of such judgments may be had only in [the United States Supreme

Court].’” Powell v. Powell, 80 F.3d 464, 466 (11th Cir. 1996) (alteration in
This Court does have jurisdiction to hear Greenberg’s facial challenge to the alimony 4

provisions. This facial challenge is not “inextricably intertwined” because this claim does not

succeed only to the extent that the state court wrongly decided the issues before it. See Feldman,

460 U.S. at 482-83 & 486, 103 S. Ct. at 1315-16 & 1317 (stating that federal courts “have

subject matter jurisdiction over general challenges to state [statutes] . . . which do not require

review of a final state-court judgment in a particular case”); see also Dale v. Moore, 121 F.3d

624, 626-27 (11th Cir. 1997) (noting that district courts have jurisdiction over facial

constitutional challenges); Blue Cross and Blue Shield of Maryland v. Weiner, 868 F.2d 1550,

1554 (11th Cir. 1989) (“Thus, although federal district courts have jurisdiction over general

constitutional challenges, Rooker and Feldman prohibit such courts from exercising jurisdiction

to decide federal issues that are inextricably intertwined with a state court’s judgment.”). 

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original) (quoting Feldman, 460 U.S. at 482, 103 S. Ct. at 1315). “The doctrine

applies not only to claims actually raised in the state court, but also to claims that

were not raised in the state court but are ‘inextricably intertwined’ with the state

court’s judgment.” Powell, 80 F.3d at 466.

The Florida state trial court awarded alimony to Mrs. Greenberg, pursuant to

Fla. Stat. ch. § 61.08. Mr. Greenberg’s claim that the alimony provisions are

unconstitutional as applied to him is inextricably intertwined with the state court’s

decision to award alimony to Mrs. Greenberg. If we were now to hold that the

Florida trial court unconstitutionally applied the Florida alimony provisions as to

Greenberg, we would “effectively nullify” the state court’s judgment that Mrs.

Greenberg receive alimony. See Powell, 80 F.3d at 467 (holding that RookerFeldman barred “as applied” challenge to state court decision to distribute a

portion of husband’s naval retirement pay to wife upon divorce). 

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Thus, the district court properly dismissed Greenberg’s as applied challenge

for lack of subject matter jurisdiction.

III. CONCLUSION

For the foregoing reasons, the district court properly dismissed Greenberg’s

complaint.

AFFIRMED.