                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1735



DAVID A. GARRAGHTY,

                                            Plaintiff - Appellant,

          versus


VIRGINIA RETIREMENT SYSTEM, Commonwealth of
Virginia; W. FORREST MATTHEWS, JR., Director
of the Virginia Retirement System in his
Official and Individual Capacity; PAUL W.
TIMMRECK, Board Member of the Virginia
Retirement   System   in  his   Official   and
Individual Capacity; ALFONSO I. SAMPER, Board
Member of the Virginia Retirement System in
his Official and Individual Capacity; EDWIN T.
BURTON, Ph.D., Board Member of the Virginia
Retirement   System   in  his   Official   and
Individual Capacity; J. DOUGLAS CONWAY, JR.,
Board Member of the Virginia Retirement System
in his Official and Individual Capacity;
JUDITH EWELL, Ph.D., Board Member of the
Virginia Retirement System in her Official and
Individual Capacity; PALMER P. GARSON, Board
Member of the Virginia Retirement System in
his Official and Individual Capacity; VERNARD
W. HENLEY, Board Member of the Virginia
Retirement   System   in  his   Official   and
Individual Capacity; VIRGINIA DEPARTMENT OF
CORRECTIONS, Commonwealth of Virginia; GENE M.
JOHNSON, Director of the Virginia Department
of Corrections, in his Official and Individual
Capacity; JOHN M. ALBERTINE, Ph.D., Board
Member of the Virginia Retirement System in
his Official and Individual Capacity; RAYMOND
B. WALLACE, JR., Board Member of the Virginia
Retirement   System   in  his   Official   and
Individual Capacity,
                                          Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-05-254-3)


Argued:   May 24, 2006                Decided:   September 5, 2006


Before WILKINS, Chief Judge, and WILLIAMS and MICHAEL, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: James Broome Thorsen, THORSEN & SCHER, L.L.P., Richmond,
Virginia, for Appellant. Brian James Goodman, VIRGINIA RETIREMENT
SYSTEM, Richmond, Virginia, for Appellees.      ON BRIEF: Judith
Williams Jagdmann, Attorney General of Virginia, Guy W. Horsley,
Jr., Special Assistant Attorney General, Gregory C. Fleming,
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

      David A. Garraghty appeals a district court order dismissing

his complaint under 42 U.S.C.A. § 1983 (West 2003) for lack of

subject matter jurisdiction.          For the reasons set forth below, we

affirm.


                                         I.

      Garraghty was an employee with the Virginia Department of

Corrections (DOC) from 1972 until December 31, 2002, serving the

last ten years as Warden of the Greensville Correction Center in

Jarratt, Virginia.      During his tenure as Warden, the DOC provided

his   housing,    a    vehicle,    and        other    benefits   as   non-salary

perquisites.     Anticipating his retirement, Garraghty wrote to the

DOC in March 2002 inquiring whether his perquisites would be

included   in    his   total    creditable       compensation--on      which   his

retirement pay would be based--and whether he was eligible to

participate in the Virginia Law Enforcement Officers’ Retirement

System (VaLORS).       See Va. Code Ann. §§ 51.1-124.3, 51.1-212(vi)

(2005). The DOC replied that his perquisites would not be included

in his compensation and that he was not eligible for VaLORS.

      Garraghty formally grieved these decisions, claiming that the

DOC did not properly forward all of his earnings to the Virginia

Retirement    System    (VRS)   and    that      the   decision   regarding    his

ineligibility for VaLORS was arbitrary and capricious.                   The DOC

director denied both grievances.              With regard to the perquisites

                                         3
grievance, the director concluded that Garraghty’s perquisites were

not creditable compensation for retirement purposes and that, in

any event, the claimed statutory violation was not grievable.   The

director denied Garraghty’s VaLORS grievance on the basis that it

was untimely.

     Garraghty appealed to the Department of Employment Dispute

Resolution (DEDR), which affirmed the denial of the perquisites

grievance.   The DEDR determined that the VaLORS grievance was

timely but ruled that the complaint was without merit because the

DOC properly excluded Garraghty from VaLORS.     Garraghty appealed

these determinations to the state circuit court in Greensville,

which affirmed.

     Garraghty then requested final agency determinations from the

VRS and the DOC for his benefits claims.   The VRS noted that it was

longstanding VRS policy to exclude perquisites from creditable

compensation and that it did not determine eligibility for VaLORS.1

The DOC reconfirmed that Garraghty was ineligible for VaLORS.

     Believing that both letters were final agency decisions,

Garraghty filed suit in the Richmond circuit court, seeking review

under the Virginia Administrative Process Act (VAPA), see Va. Code

Ann. § 2.2-4026 (2005).    The court dismissed, ruling that the



      1
       In its response to Garraghty, the VRS also noted that in
 2003 the Virginia General Assembly had affirmed the VRS policy by
 excising the provision relating to perquisites from the Virginia
 Code. See Va. Code Ann. § 51.1-124.3.

                                4
Greensville court order was final and that the VAPA was “not [the]

appropriate forum” for Garraghty’s claims.      J.A. 71.     The Virginia

Court of Appeals affirmed, and the Supreme Court of Virginia denied

certiorari.

     Garraghty subsequently filed this action in federal court,

alleging that the VRS and DOC (collectively, “the Commonwealth”)

violated his procedural due process rights under the Fifth and

Fourteenth    Amendments   by   denying   him   the   full    retirement

compensation he had earned and by refusing to hear the merits of

his claims.   The Commonwealth moved to dismiss for lack of subject

matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), asserting that

the action was barred by the Rooker-Feldman doctrine, see D.C. Ct.

of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust

Co., 263 U.S. 413 (1923), and the doctrine of substantiality.

After a hearing, the district court granted the motion.



                                  II.

     We review a decision granting a motion to dismiss for lack of

subject matter jurisdiction de novo.       See Evans v. B.F. Perkins

Co., 166 F.3d 642, 647 (4th Cir. 1999).         It is well established

that “[f]ederal courts are courts of limited jurisdiction and are

empowered to act only in those specific instances authorized by

Congress.”    Goldsmith v. Mayor & City Council of Baltimore, 845

F.2d 61, 63 (4th Cir. 1988) (internal quotation marks omitted).


                                   5
Consequently, a federal court must dismiss a case whenever it

appears that it lacks subject matter jurisdiction.                     See Fed. R.

Civ. P. 12(h)(3); Goldsmith, 845 F.2d at 64.

       Garraghty    claims      a    deprivation     of   property     without    due

process, in violation of the Fifth and Fourteenth Amendments.

These claims are clearly within the ambit of § 1983; however, the

mere existence of a cause of action under § 1983 does not confer

subject matter jurisdiction.             See Goldsmith, 845 F.2d at 63; see

also Davis v. Pak, 856 F.2d 648, 650 (4th Cir. 1988).                  To this end,

Garraghty relies on 28 U.S.C.A. § 1331 (West 1993), which confers

jurisdiction       over    “all       civil     actions    arising      under     the

Constitution, laws, or treaties of the United States.”

       The existence of subject matter jurisdiction depends upon the

assertion of a substantial claim.               See Hagans v. Lavine, 415 U.S.

528,   536-37    (1974).        “[F]ederal      courts    are   without   power    to

entertain claims otherwise within their jurisdiction if they are so

attenuated and unsubstantial as to be absolutely devoid of merit,

wholly insubstantial, obviously frivolous, plainly unsubstantial,

or no longer open to discussion.”               Id. (internal quotation marks &

citations omitted); see Davis, 856 F.2d at 651 (holding that

federal courts are precluded from exercising jurisdiction when the

only   federal     claim   is       obviously    meritless).      In   particular,

district courts must guard against litigants who assert a federal

claim “as a pretext to allow a state law issue, the real focus of


                                           6
the claim, to be litigated in the federal system.”   Davis, 856 F.2d

at 651; see Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999).

      We agree with the district court that Garraghty has not

asserted a substantial federal claim. Due process requires “notice

and opportunity for hearing appropriate to the nature of the case”

before an individual can be deprived of a property interest.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

(internal quotation marks omitted).    The record amply demonstrates

that Garraghty received both.    When stripped of the alleged due

process violation, it is evident that all Garraghty seeks is

federal consideration of a state law issue.   Because Garraghty has

failed to present a substantial constitutional claim, we affirm the

dismissal for lack of subject matter jurisdiction.2



                                III.

     For the reasons set forth above, we affirm.


                                                           AFFIRMED




      2
       Because the doctrine of substantiality sufficiently
 addresses the issues before us, we do not consider whether the
 Rooker-Feldman doctrine applies.

                                 7
