Saum v. Widnall

• Decision Date: 29 January 1996
• Docket Number: Civil Action No. 95-K-1340.
• Parties: Elizabeth K. SAUM, Plaintiff, v. Dr. Sheila WIDNALL, Secretary, United States Air force, ex officio, et al., Defendants.
• Court: U.S. District Court — District of Colorado

912 F. Supp. 1384

Elizabeth K. SAUM, Plaintiff, v. Dr. Sheila WIDNALL, Secretary, United States Air force, ex officio, et al., Defendants.

Civil Action No. 95-K-1340.

United States District Court, D. Colorado.

January 29, 1996.

COPYRIGHT MATERIAL OMITTED

Doris Besikof, Denver, CO, for Plaintiff.

J. Benedict Garcia, Assistant U.S. Attorney, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

Air Force Academy cadet Elizabeth Saum initiated this action on May 25, 1995, asserting three claims for declaratory and injunctive relief against United States Air Force ("Air Force") Secretary Sheila Widnall and certain Air Force officers in their official capacities, and against various "John Doe" cadets and non-commissioned officers in their individual capacities. Jurisdiction, justiciability and abstention are the concepts forming the nexus of the instant controversy.

This case raises difficult and complex questions regarding the proper role of the courts in reviewing the conduct of military personnel and the military generally. It also presents novel issues regarding the nature and scope of relief, if any, available against the military when it violates the constitutional rights of one of its own. After careful review of the Amended Complaint as well as the parties' briefs and oral argument on the ex officio defendants' motion to dismiss, I find I have jurisdiction over Saum's claims and that Saum's claims are reviewable.

Saum claims she was sexually harassed and abused at the Academy generally, and in particular during her mandatory participation in the Academy's 1993 Survival Escape Resistance and Evasion Training (SERE). She maintains defendants' failure to comply with or to enforce Air Force rules and regulations prohibiting such treatment, and failure after she reported the events at SERE either to enforce certain punitive articles of the Uniform Code of Military Justice (UCMJ) or to accord her "crime victim" status under the Victims' Rights and Restitution Act of 1990, 42 U.S.C. § 10607 and Department of Defense (DOD) Instruction No. 1030.2, violated her liberty, due process, and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution. For her relief, Saum seeks a declaration under Fed.R.Civ.P. 65(1) that her constitutional rights were violated and (2) that she is a "crime victim" under § 10607 and DOD Instruction No. 1030.2. Saum also seeks a preliminary and permanent injunction requiring defendants (3) to release all information obtained during their investigation of her complaints and (4) to accord her "crime victim" status with all its attendant rights and benefits.

After the release of additional information by the Air Force in June 1995, Saum filed an Amended Complaint. The Amended Complaint identified certain of the "John Does" by name and added six claims for compensatory and punitive damages against the individual defendants.¹ It also clarified that the equitable relief sought against the ex officio defendants included restitution based on a theory of unjust enrichment.

Before me now is the ex officio defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. These defendants assert I lack subject-matter jurisdiction over Saum's claims and maintain Saum has failed to allege a jurisdictional basis for relief. Alternatively, defendants urge me to abstain from reviewing defendants' conduct because doing so would "embroil" the court in matters concerning military training in violation of Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) and Lindenau v. Alexander et al., 663 F.2d 68 (10th Cir.1981) (adopting the four-part test for reviewability articulated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971)).

Defendants also assert Saum's claims for declaratory and injunctive relief are non-justiciable under Gilligan because they have been mooted by subsequent events so that Saum lacks standing to pursue them. Saum's request for "restitution," they argue, is actually a claim for monetary damages barred by Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950) (barring claims brought under the Federal Tort Claims Act against the military for injuries to servicemembers arising out of or incident to military service). Finally, defendants argue there is no private right of action under the Victim of Crimes Act and urge dismissal of Saum's request for "crime victim" status for failure to state a claim upon which relief can be granted.²

Saum insists her claims are reviewable and, because she seeks only equitable relief, denies Feres applies. Review is appropriate, she argues, because it would neither require the court to scrutinize a particular military decision nor to intrude into matters affecting military discipline, training or readiness. According to Saum, this is an action challenging defendants' allegedly unconstitutional conduct and failure to comply with their own rules and regulations. The rights at issue are "fundamental," she argues, and the alleged violations "extreme." Under these circumstances, Saum maintains it is within my discretion to accept jurisdiction over her claims, declare defendants' conduct unconstitutional and fashion an equitable remedy sensitive both to the military's need for autonomy and her right to redress.

I. FACTS

For the purposes of this motion, the allegations in Saum's Amended Complaint and affidavit incorporated by reference therein are taken as true. Thus understood, the following facts are asserted:

In early 1992, plaintiff Elizabeth "Libby" Saum was a senior at a Toledo, Ohio, Catholic prep school. She was an excellent student, president of the Spanish club and a diving champion. She had won early admission to Davidson College in North Carolina and a full tuition scholarship. Offers from other schools had come in as well. She also caught the attention of the Air Force Academy.

The Academy began recruiting Saum for its diving team. Although the application deadline had passed, Saum was invited to visit the Academy in Colorado Springs. Drawn by the promise of an education valued at $230,000, as well as an opportunity to attend medical school and other benefits, Saum turned down her other offers and accepted an appointment to the Academy.

Saum arrived at the Academy in the summer of 1992. She was 18 years old. At 5'3" and in excellent physical condition, she weighed 100 lbs. Beginning at once, Saum was subjected to harassment "so verbally and physically abusive" as to create an intimidating and offensive work environment. The harassment was nearly always sexual in nature. It included being called to the office of a professor and told she was "too feminine" and "too pretty" to be an officer; being called a "bitch" and a "whore" and subjected to constant rumors and taunting about her supposed sexual conduct and preferences; being prohibited from locking her dormitory room door at night after upperclass male cadets continued to come in uninvited; being required to stand at attention and stare at posters of offensive, nude or partially clothed women; and being singled out to recite knowledge on command by other cadets in a manner different from male cadets. She maintains she was targeted for this abuse because of her sex and petite, feminine appearance. Despite this treatment, Saum made the dean's list for academics as well as the dean's list for athletes each semester until her departure in 1994.

In June 1993 Saum participated in mandatory Survival, Escape, Resistance and Evasion training (SERE). She had been warned all year that upperclassmen were "going to get her" at SERE. Upon arrival with other cadets for training, she was selected as the victim in a simulated rape and exploitation scenario. Within earshot of her co-"prisoners," she was forced to lie on the ground, her shirt was removed and her legs pried apart. She was hooded during the proceedings and does not know the identities of the participating cadets. Other cadets stood by and observed, joking about what was occurring, until an NCO halted the event.

The simulated rape was filmed and the videotape shown to other cadets at SERE. In addition, Saum alleges she was shaken so violently—without the required neckroll or other protection—that she suffered bruises to her chest, neck and ribs requiring medical attention.³ Her "training," she asserts, included having to kneel down while a male cadet put his crotch in her face and made sexually explicit comments to her, having her fatigues soaked with urine, and being forced to put a stick in her pants and call it her "masturbation stick." Compared to male participants, Saum was singled out for a disproportionate number of "beatings," "interrogations," and "torture,"⁴ most of which were sexually charged. This treatment was a continuation of the harassment she suffered throughout her service at the Academy and was directed at her solely because of her sex. Though other female cadets were harassed, the frequency and severity of her ill-treatment was accentuated because of her appearance.

After she completed SERE training, Saum showed her bruises and described her experience to defendant Stoneman, who referred her to defendant Kummerfeldt. When she met with defendant Kummerfeldt in late June or early July of 1993, she was asked whether she wanted to "press charges" based on the incidents at SERE. Fearing further retaliation if she did, Saum declined. During that meeting, defendant Kummerfeldt instructed Saum not to speak with anyone about her SERE experience.

Saum sought medical attention for her bruises and was examined by defendant Guzman in late June. Defendant Guzman documented her injuries, but did not request an investigation of what had occurred. Saum was not referred for counselling or any further de-briefing on the events at SERE.

During the 1993-94 school year, Saum began exercising...