Green v. Skulute

• Decision Date: 07 December 1993
• Docket Number: No. 93-CV-0079-J.,93-CV-0079-J.
• Citation: 839 F. Supp. 797
• Parties: Suzanne L. GREEN, Plaintiff, v. Major General SKULUTE, The Judge Advocate General of the United States Air Force; the Secretary of the United States Air Force; and the United States Air Force, Defendants.
• Court: U.S. District Court — District of Wyoming

839 F. Supp. 797

Suzanne L. GREEN, Plaintiff, v. Major General SKULUTE, The Judge Advocate General of the United States Air Force; the Secretary of the United States Air Force; and the United States Air Force, Defendants.

No. 93-CV-0079-J.

United States District Court, D. Wyoming.

December 7, 1993.

Marvin J. Johnson, Billie Ruth Edwards, Edwards & Johnson, Attys., Cheyenne, WY, Stephen L. Pevar, American Civil Liberties Union, Denver, CO, Hilary Holland, Westminster, CO, for plaintiff.

David A. Kubichek, U.S. Attorney's Office, Casper, WY, for defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

ALAN B. JOHNSON, Chief Judge.

This matter having come before the Court on defendants' motion to dismiss for lack of subject matter jurisdiction, and a hearing having been held on August 26, 1993, the Court, having considered the materials filed both in support of and in opposition to the motion and the arguments of counsel, and being fully advised in the premises, now FINDS and ORDERS as follows:

Background

Plaintiff Suzanne L. Green commenced this action on March 4, 1993, against defendants Major General Morehouse, the Judge Advocate General of the United States Air Force; the Secretary of the United States Air Force; and the United States Air Force.¹ Plaintiff alleges that this Court has jurisdiction over the claims asserted in her Complaint by virtue of 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361 (mandamus), and 28 U.S.C. § 2201 (declaratory judgment). She seeks a judgment from this Court under 28 U.S.C. §§ 1331 and 2201, voiding her January 23, 1991, court-martial conviction and directing defendants pursuant to 28 U.S.C. § 1361, to vacate the conviction and restore all rights and benefits lost as a result of the court-martial. Plaintiff does not seek to recover monetary damages from the federal government. In fact, on August 20, 1993, she filed a document entitled, "Waiver of any Claim for Back Pay," expressly indicating that she is waiving any claim in this action for monetary damages, including back pay. See Docket No. 20.²

Plaintiff is a former commissioned officer of the United States Air Force, commissioned as a Lieutenant in 1987 and assigned to F.E. Warren Air Force Base ("F.E. Warren AFB") in September 1987. Complaint, ¶¶ 7, 8. In November 1990, charges were preferred against plaintiff under the Uniform Code of Military Justice ("UCMJ") for various infractions of 10 U.S.C. § 933, Conduct Unbecoming an Officer, specifically, fraternization between plaintiff and enlisted members of the United States Air Force. Complaint, ¶ 9 and ¶ 17.

Following an Article 32 investigation pursuant to 10 U.S.C. § 832, plaintiff's case was referred to the General Court-Martial Convening Authority, which in turn referred the matter for trial by general court-martial. Plaintiff was convicted on January 23, 1991, of four charges under § 933. The courtmartial imposed a penalty consisting of: (1) a reprimand; (2) forfeiture of $1,500 per month for four months; and (3) restriction to F.E. Warren AFB for two months. Plaintiff was administratively discharged from the Air Force shortly thereafter.

Plaintiff's conviction was finalized when the guilty finding and the sentence were approved by the General Court-Martial Convening Authority on March 4, 1991. Because the penalty imposed by the court-martial involved neither dismissal nor confinement at hard labor for one year or more, plaintiff's sole course of review was by means of a mandatory review by the Judge Advocate General pursuant to 10 U.S.C. § 869. Under this statutory provision, the Judge Advocate General must examine the trial record of the court-martial and if any part of the findings or sentence is found to be unsupported in law, or if reassessment of the sentence is appropriate, he may modify or set aside the findings, the sentence, or both. The Judge Advocate General denied all issues raised by plaintiff's military counsel and upheld the court-martial conviction and sentence on May 29, 1991. Complaint, ¶ 12.

A Court of Military Review may review any court-martial case subject to action by the Judge Advocate General under § 869, if such review is ordered by the Judge Advocate General. The Judge Advocate General did not order the Court of Military Review to review plaintiff's court-martial. Consequently, plaintiff had no further appellate rights within the military justice system. Complaint, ¶ 13. She filed a petition for extraordinary relief to the United States Court of Military Appeals under the All Writs Act, 28 U.S.C. § 1651(a). That petition was denied on March 9, 1992. Complaint, ¶ 14. Plaintiff did not elect to pursue correction of her military record through the Air Force Board for Correction of Military Records.³ Having exhausted all military remedies available to her, plaintiff commenced this lawsuit.

By this action, plaintiff is seeking judicial review of the constitutionality of her courtmartial. She claims that the fraternization charges against her were based upon an Air Force "custom" rather than a statute, regulation, or order, proscribing certain conduct. She contends that the custom was "so unsettled as to preclude any reasonable person, officer, enlisted, or otherwise" from ascertaining what conduct was proscribed. Complaint, ¶ 21. She claims that this unsettled condition denied her reasonable notice of proscribed conduct in violation of her right to due process. This claim was presented during the course of plaintiff's court-martial by means of a motion to dismiss and a motion for directed verdict. Both motions were denied. Plaintiff contends that this claim also was presented in her petition to Major General Morehouse in her § 869 review. Complaint, ¶ 23.

Plaintiff also asserts that the exclusion of certain evidence at her court-martial violated her constitutional rights. She sought to introduce evidence respecting the then existing number of officer-enlisted marriages within the Air Force for the purpose of rebutting the alleged "custom" which formed the basis for the charges against her. The evidence was excluded as not relevant. Plaintiff contends that this issue likewise was presented to Major General Morehouse in her § 869 review. Complaint, ¶ 30. Plaintiff alleges in her Complaint that both the lack of adequate notice of proscribed conduct as well as the exclusion of the proffered evidence violated her right to due process. Defendants have filed a motion to dismiss the Complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Defendants claim that the action is barred by the doctrine of sovereign immunity in that the United States has not consented to suit under the statutes pleaded in plaintiff's Complaint. Defendants further contend that plaintiff may maintain this action only as a suit for monetary damages under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), a jurisdictional basis not alleged in plaintiff's Complaint. The Little Tucker Act confers jurisdiction upon district courts for actions in which a plaintiff seeks to recover monetary damages of $10,000 or less from the federal government. Because plaintiff has not pleaded the Act as a basis for jurisdiction, defendants argue that this Court lacks jurisdiction to hear a collateral attack on her court-martial conviction. Plaintiff's waiver of monetary damages precludes the application of the Little Tucker Act to this case.

Defendants further contend that plaintiff has waived the constitutional claims by which she seeks to collaterally attack her courtmartial conviction by failing to raise them before the Judge Advocate General. Finally, defendants contend that plaintiff's claims present factual questions beyond the scope of judicial review in a collateral attack on her court-martial conviction. For these reasons, defendants urge the Court to dismiss the Complaint for lack of subject matter jurisdiction.

Standard of Review

The law is well settled that a federal district court has jurisdiction to decide whether it has jurisdiction. Amoco Pipeline Co. v. Admiral Crude Oil Corp., 490 F.2d 114, 116 (10th Cir.1974). Federal courts are courts of limited jurisdiction, however, and there is a presumption against jurisdiction. Accordingly, the party seeking to invoke jurisdiction bears the burden of proof. Penteco Corp. v. Union Gas System Inc., 929 F.2d 1519, 1521 (10th Cir.1991).

Plaintiff contends that defendants' motion under Rule 12(b)(1) should be converted to a motion for summary judgment because defendants submitted extraneous materials to the Court in support of their motion. As a general rule, a 12(b)(1) motion cannot be converted into a motion for summary judgment under Rule 56. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987) citing Nichols v. United States, 796 F.2d 361, 366 (10th Cir.1986) (quoting 5 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1366 (Supp.1986)); Crawford v. United States, 796 F.2d 924 (7th Cir.1986); Stanley v. CIA, 639 F.2d 1146, 1157-58 (5th Cir. Unit B Mar. 1981).

There is a widely recognized exception to this rule for those cases in which the jurisdictional question is intertwined with the merits of the case. In such circumstances, the issue should be resolved under Rule 12(b)(6) or Rule 56. Id. (citations omitted). "When subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined." Id. (citations omitted).

The Court finds that the jurisdictional claim and the merits of this case are not so intertwined as to justify converting defendants' 12(b)(1) motion to a motion under either Rule 12(b)(6) or Rule 56. Accordingly, plaintiff retains the burden of proof as to whether the Court may appropriately exercise jurisdiction in this matter.

Discussion

I. The Court is not precluded from exercising jurisdiction to collaterally review the circumstances of plaintiff's c...