Wilkins

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 injunc-tive relief because the Feres bar does not extend to the claims for non-monetary relief.

Backgkound

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…

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…