holding “crux” of military chaplain’s complaint was challenge to the Chaplain Corps’ structure in hiring certain percentages of liturgical and non-liturgical chaplains, and injunctive relief to address changes to that structure was outside CFC’s jurisdiction
How later courts described this case
- holding “crux” of military chaplain’s complaint was challenge to the Chaplain Corps’ structure in hiring certain percentages of liturgical and non-liturgical chaplains, and injunctive relief to address changes to that structure was outside CFC’s jurisdiction
- explaining the distinction between non-monetary claims subject to the Feres doctrine from the “[b]road-based declaratory and injunctive relief regarding Navy policies affecting the structure of the military chaplaincy” challenged by Wilkins
- holding that RITCHIE V. UNITED STATES 19 “the Feres bar does not extend to the claims for non-monetary relief”
- holding that “the Feres bar does not extend to the claims for non-monetary relief’
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
concurring:
I concur in Parts I, II A, II B and III of the majority opinion. I also concur in Part II C, but I concur in that part, and in the ultimate resolution of this case, solely because the district court dismissed the action under Rule 12(b) of the Federal Rules of Civil Procedure, and it is possible that Wilkins’ harm was caused by Navy regulations and policies approved by naval authorities whose decisions the BCNR cannot review. But, as seems more likely from the tone of the complaint, the regulations and policies are fine in themselves, and Wilkins’ alleged harm was caused by the actions of individuals, who were not properly following those regulations and policies. In that event, the BCNR could correct the effect that those abuses had upon Wilkins, even if they resulted in (or are alleged as) constitutional violations. See Christoffersen v. Wash. State Air Nat’l Guard, 855 F.2d 1437 , 1442 (9th Cir.1988); Muhammad v. Sec’y of Army, 770 F.2d 1494, 1495-96 (9th Cir.1985); see also Liu v. Waters, 55 F.3d 421, 425-26 (9th Cir.1995); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994). That cannot be decided from the face of the complaint and the limited materials before us.
If, as it turns out, the matter was within the jurisdiction of the BCNR, the case must be dismissed for failure to exhaust the remedies available there. In other words, Wilkins’ failure to exhaust would eliminate any right he might have to reinstatement, and, because he would not then *791 be a member of the Service, he would have no standing to complain about alleged ongoing violations. In short, those violations, if any, could not affect him. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2180 , 2136, 119 L.Ed.2d 351 (1992); Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir.1995).
Only time will tell. Thus, I concur.