Wilkins v. U.S.
| Decision Date | 31 January 2002 |
| Docket Number | No. 00-55117.,00-55117. |
| Citation | 279 F.3d 782 |
| Parties | Ronald G. WILKINS, Plaintiff-Appellant, v. UNITED STATES of America; Richard Danzig, Secretary of the Navy; Daniel T. Oliver, Vice Admiral, Chief of Naval Personnel; Anderson B. Holderby, Jr., Rear Admiral, Chief of Chaplains, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arthur A. Schulcz, Sr., Vienna, VA, for the plaintiff-appellant.
Patrick K. O'Toole, United States Attorney, Peter J. Sholl, Assistant United States Attorney, United States Attorney's Office, San Diego, CA, for the defendants-appellees.
Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-99-01579-IEG(LSP).
Before: FERNANDEZ, KLEINFELD, and McKEOWN, Circuit Judges.
This case arises from a military chaplain's claims that the Navy unconstitutionally administers its Chaplain Corps to prefer certain religious denominations. Ronald G. Wilkins, a non-liturgical protestant chaplain, filed a pro se complaint, requesting damages as well as declaratory and injunctive relief. The district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), holding that it lacked subject matter jurisdiction due to (1) the exclusive jurisdiction of the Court of Federal Claims, see 28 U.S.C. § 1491; (2) the Feres doctrine, see Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950); and (3) the exhaustion requirement. We affirm the dismissal of the claims for damages, but reverse the dismissal of the constitutional claims for declaratory and injunctive relief because the Feres bar does not extend to the claims for non-monetary relief.
Ronald Wilkins served in the United States Navy Chaplain Corps until his involuntary early retirement in 1995. He was, according to his complaint, a "Non-Liturgical chaplain endorsed by the Bible Churches Chaplaincy endorsing agency." The Navy categorizes chaplains as Roman Catholic, Liturgical, Non-Liturgical, and Other (e.g. Jewish, Muslim). Non-Liturgical denominations focus on sermonic content rather than formal rituals.
Upon his involuntary early retirement, Wilkins "filed written appeals to the Secretary of the Navy, the Judge Advocate General, the Chief of Chaplains and the Inspector General," contesting various forms of "religious repression, coercion and other illegal activities against the plaintiff and against his religious constituencies." He obtained no relief, and consequently filed suit in federal district court against the United States and various Navy officials.
In his federal complaint, Wilkins alleged that the Navy organizes the chaplaincy in an unconstitutional fashion. Specifically, he claimed that it maintains a so-called "Thirds Policy," under which chaplains in Roman Catholic, Liturgical, and Non-Liturgical/Other denominations were each guaranteed one-third of the chaplain corps positions. In his view, this allocation does not reflect the actual denominational composition of the service; Liturgical chaplains are, according to the complaint, proportionately three times as numerous as servicemembers of those religions.
Wilkins also alleged that the Chaplain Corps systematically prefers Liturgical chaplains over Non-Liturgical chaplains in its administration of assignments, evaluations, and the Selective Early Retirement system. According to Wilkins, the Navy policy and practice violated the Establishment Clause; the free exercise rights of Non-Liturgical sailors; the Equal Protection Clause; and the "Fifth Amendment guarantee of basic fairness." Wilkins also alleged that the Selective Early Retirement Board gave unconstitutional preference to minorities and women, violating the Equal Protection Clause.
On the basis of these charges, Wilkins sought a virtual smorgasbord of relief. He requested declaratory and injunctive relief to end the "sectarian spoils system," and to guarantee the free exercise rights of military personnel. He sought reinstatement (for himself and other unnamed Non-Liturgical chaplains), and a declaration that his involuntary early retirement was invalid and violative of due process. He also sought compensatory damages; changes to his records; a promotion; a new assignment; punitive and actual damages; monies to establish a new "Non-Liturgical watch-dog agency for the military chaplaincies;" various other forms of declaratory relief; and attorney's fees under the Equal Access to Justice Act.
The district court granted the Navy's motion to dismiss the complaint. In its order, the court concluded that it did not have subject matter jurisdiction. Under the Tucker Act, 28 U.S.C. § 1346, Wilkins's claims for non-tort damages against the United States in excess of $10,000 were subject to the exclusive jurisdiction of the Court of Federal Claims. To the extent that Wilkins asserted tort claims, the district court concluded that they were barred by the Feres doctrine. Finally, the court determined that Wilkins's failure to exhaust his administrative remedies constituted an independent ground for dismissal of the suit.
On appeal, now represented by counsel, Wilkins argues that the Feres doctrine does not apply to his constitutional claims; that he falls within various exceptions to the general rule requiring exhaustion of administrative remedies; and that the court improperly construed his pro se complaint in an unduly narrow fashion.
We review de novo a district court's decision to dismiss for lack of subject matter jurisdiction. La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir.2001). Whether the Feres doctrine applies to the facts in the record is reviewed de novo. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1997). On a dismissal for failure to exhaust nonjudicial remedies, the district court's underlying factual determinations are reviewed for clear error, and its application of substantive law is reviewed de novo. Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir.1988). We review the denial of leave to amend a complaint for abuse of discretion. Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725 (9th Cir.2000).
The district court properly dismissed Wilkins's claims for damages. The claims for back pay and other non-tort damages, which were well in excess of $10,000, lie within the exclusive jurisdiction of the Court of Federal Claims. See 28 U.S.C. §§ 1346(a)(2); 1491(a)(1); Glines v. Wade, 586 F.2d 675, 681-82 (9th Cir.1978), rev'd in part on other grounds sub nom. Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980). Wilkins concedes this point on appeal.
The district court also reasoned that Wilkins's tort claims were barred by the Feres doctrine. Although the United States is generally liable for tort damages under the Federal Tort Claims Act, 28 U.S.C. § 2674, it "is not liable ... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. 153; see generally Costo v. United States, 248 F.3d 863, 868-69 (9th Cir.2001) (), cert. denied, ___ U.S. ___, 122 S.Ct. 808, 151 L.Ed.2d 693 (2001).
Wilkins's position on his tort claims is slightly opaque. In his brief, he makes passing reference to district court error in dismissing his tort claims on Feres grounds, without distinguishing between monetary and non-monetary relief. His only argument in the brief, however, relates to whether the Feres doctrine applies to "constitutional claims not seeking money damages." We therefore deem abandoned any argument with respect to money damages for tort claims, see Pierce v. Multnomah County, 76 F.3d 1032, 1037 n. 3 (9th Cir.1996), and address whether the Feres bar extends to Wilkins's constitutional claims for declaratory and injunctive relief.
Wilkins also requested injunctive and declaratory relief for alleged constitutional violations.2 These claims are not so easily dismissed. Specifically, he sought injunctive relief to redress the structural establishment violations that result in built-in preferences for Liturgical chaplains, to ensure sailors' free exercise of religion, to rescind his selective early retirement because it was discriminatory, and to restore him to active duty.
This case cannot be characterized simply as a military discharge case with a few constitutional claims thrown in for good measure. Although Wilkins sought money damages and reinstatement, his chief complaint is with the Navy Chaplain Corps's organization and its system of evaluation, assignment, promotion, and selection for early retirement.
The Court of Federal Claims has exclusive jurisdiction over non-tort claims against the United States in excess of $10,000. 28 U.S.C. §§ 1346(a)(2) and 1491(a)(1). In addition, the court has jurisdiction to grant non-monetary relief "as an incident of and collateral to any ... judgment." 28 U.S.C. § 1491(a)(2). Specifically, the statute reads as follows:
To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.
Thus the court may grant injunctive relief when it is "associated with and...
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