Ninth Circuit Reinstates Evangelical Chaplain’s Bias Suit Against Navy

Friday, February 1, 2002

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Ninth Circuit Reinstates Evangelical Chaplain’s Bias Suit Against Navy

By KENNETH OFGANG, Staff Writer/Appellate Courts

A suit charging that the Navy discriminates against clergy of certain denominations in the promotion and retention of chaplains was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.

The suit by Ronald Wilkins is one of at least four, involving more than three dozen plaintiffs, alleging bias in recruiting, assignments, evaluations, and the operation of an involuntary early retirement system, the newspaper Christian Times recently reported.

Wilkins was involuntarily retired in 1995. He claimed in unsuccessful internal appeals that he was a victim of “religious repression, coercion and other illegal activities against the plaintiff and against his religious constituencies.”

Wilkins and the other plaintiffs claim that the Navy practices religious discrimination by implementing a “thirds policy” to assure that the Chaplain Corps will be divided equally among three groups—Roman Catholics, liturgical Protestants, and non-liturgical Protestants and “others” combined.

Liturgical denominations include most mainline denominations, including Episcopalian, Lutheran, Presbyterian and Methodist, while non-liturgical or evangelical groups do not baptize children, do not use vestments and have unfixed worship, the Christian Times explained.

The “others” or “special worship” category, which advocates for the evangelical chaplains claim “dilutes” their one-third, allegedly includes Seventh-day Adventists, Mormons, Christian Scientists, and non-Christians.

The alleged policy is unfair, the evangelicals say, because their adherents represent between 40 and 50 percent of sailors. Wilkins, who sought damages and injunctive and declaratory relief for violation of the Free Exercise and Establishment clauses, also claims that the “thirds policy” violates the Equal Protection Clause by giving preferences to women and minorities.

U.S. District Judge Irma E. Gonzalez of the Southern District of California dismissed Wilkins’ suit, citing the exclusive jurisdiction of the Court of Federal Claims over non-tort actions against the federal government involving more than $10,000, the Feres doctrine barring suits by service members against the government, and the exhaustion doctrine.

But Judge M. Margaret McKeown, writing yesterday for the Ninth Circuit, said Gonzalez was correct only with regard to the claim for damages.

The Feres doctrine, McKeown wrote, only applies to claims for monetary relief, while the jurisdiction of the Court of Federal Claims is limited to monetary claims and “collateral” injunctive relief.

Wilkins’ constitutional challenges to Navy policy go well beyond any monetary relief he might be entitled to for an unlawful early discharge, and must be heard by the District Court, rather than the Court of Federal Claims, to the extent he seeks declaratory and injunctive relief, the appellate judge wrote.

Dismissal for failure to exhaust administrative remedies, the judge went on to say, was premature at the pleading stage. She noted that Wilkins claimed to have “filed written appeals,” only to be rebuffed.

Nor can Wilkins’ failure to seek relief from the Board for Correction of Naval Records bar his action, because the BCNR has no jurisdiction to decide constitutional questions, McKeown said.

The case is Wilkins v. United States, 00-55117.