* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 1 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GARLAND ROBERTSON,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA,

Defendant-Appellee. No. 97-5183 (D.C. No. 96-CV-888-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Plaintiff does not continue to argue on appeal thatthe Air Force did not

comply with prescribed administrative procedures inhis retirement process. See Appellant’s Br. at 41.

-2- Plaintiff Garland Robertson appeals from an order o f the district court determining that defendant Air Force did not violat e his First Amendment rights. As in the district court, plaintiff argues on appea l that his involuntary retirement from active duty as an Air Force chaplain should be set aside because his retirement was based upon performance evaluations w hich served as religious censorship in violation of his First Amendment rights and also served to establish a military religion in violation of the First Amend ment. 1 Additionally, plaintiff argues that his action was not barred from adjudication under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, pursuantto Feres v. United States , 340 U.S. 135, 146 (1950). We affirm. The district court thoroughly and accurately set fo rth most of the facts in its order. See R., vol. 1, tab 13 at 2-16. We provide only a bri ef summary here. On January 5, 1991, prior to Operation Desert Storm, p laintiff wrote a letter to the local newspaper editor indicating moral and ethical objections to initiating a war against Iraq. Plaintiff signed his name and indicated that he was a chaplain at Dyess Air Force Base. His commander reprimanded hi m for writing the letter setting forth his military title and base assignmen t. The commander stated that-3-

plaintiff had violated Air Force regulations preclu ding such political activity. Based on the reprimand, the senior chaplain refused to allow plaintiff to preach as scheduled the following Sunday and removed him fromthe preaching schedule until further notice. Thereafter, plaintiff’s orders to staff a hospital to care for soldiers wounded in Operation Desert Storm were canceled. Although he was twice selected for reassignment to another Air Force base, both bases refused him positions. In May 1991, plaintiff was returned to the preachin g rotation. Following a sermon in which he informed the congregation of the actions taken against him by Air Force officials, he received a letter of counse ling. In December 1991, after a Thanksgiving service, plaintiff was permanently rem oved from the preaching schedule for improperly focusing his sermon on Nati ve American spirituality, rather than on traditional Christian beliefs. Plaintiff received substandard performance reviews rating him as not meeting standards for leadership skills from April 1991 to April 1993. Plaintiff took issue with the reviews. Pursuant to orders, h e underwent three psychological examinations during that time period. The second a nd third examinations indicated that he suffered from a personality disor der, not otherwise specified, with narcissistic, obsessive-compulsive, and passiv e-aggressive traits.-4-

In March 1993, plaintiff was requested to retire vo luntarily, or face administrative action to remove him for substandard performance. On June 1, 1993, plaintiff requested voluntary retirement effe ctive June 1, 1994. On June 15, 1993, he was notified that a discharge proceeding h ad been initiated against him. The Board of Inquiry found that plaintiff should be removed from active duty and given an honorable discharge. On December 1, 1994, plaintiff retired. On December 16, 1994, he filed an application for c orrection of his military records with the Air Force Board for the Correctionof Military Records (AFBCMR). He requested that his poor performance r atings be removed from his personnel record. He also requested that the orderof involuntary retirement be rescinded. In November 1995, plaintiff filed an action in dist rict court asserting claims under the Administrative Procedure Act (APA), 5 U.S .C. §§ 701-706, and the FTCA. The district court dismissed the FTCA claims for lack of subject matter jurisdiction and dismissed the APA claims for failu re to state a claim, based on the doctrine of nonjusticiability. Plaintiff did n ot appeal. Subsequently, the AFBCMR denied his request to dele te his substandard performance reports from his record and to rescind his involuntary retirement.-5-

Plaintiff then filed this second federal court acti on under the APA. He alleged the Air Force had violated his First Amendm ent rights and had established a military religion. The district court denied rel ief, and this appeal followed. As a preliminary matter, we first consider the dist rict court’s determination of justiciability. As the district court stated, i n Lindenau v. Alexander , 663 F.2d 68 (10th Cir. 1981), this court adopted the two-ste p justiciability test set forth in Mindes v Seaman , 453 F.2d 197, 201-02 (5th Cir. 1971). The first step requires that “a court should not review internal military a ffairs in the absence of (a) an allegation of the deprivation of a constitutional r ight, or an allegation that the military has acted in violation of applicable statu tes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” Id. at 201. Recognizing that not all such allegations are revie wable, Mindes requires at the second step a weighing of the following factors: ( 1) “[t]he nature and strength of the plaintiff’s challenge to the military determination[;]” (2) “[t]he potential injury to the plaintiff if review is refused[;]” (3 ) “[t]he type and degree of anticipated interference with the military function [;]” and (4) “[t]he extent to which the exercise of military expertise or discret ion is involved.” Id. The district court questioned the viability of the Mindes test in light of the Supreme Court’s holding in Darby v. Cisneros , 509 U.S. 137, 138, 153, 154 (1993), that plaintiffs are not required to exhaustadministrative remedies before-6-

seeking review under the APA where no statute or ag ency rule requires exhaustion before judicial review. Exhaustion, how ever, is not an issue in this case, as it is undisputed that plaintiff has exhaus ted military remedies. Regardless of exhaustion, the district court declin ed to apply any part of Mindes and proceeded to review the merits of the case. I n doing so, the district court noted there was no Supreme Court precedent fo r excepting the military from all judicial review under the APA, the APA expressl y includes claims of constitutional violations within its scope of revie w, Supreme Court authority permits deferential judicial review of constitution al challenges to military actions, and such a case would not be precluded from review under traditional political question doctrine. We conclude the district court erred in refusing to apply the Mindes test. At no time has this court overruled Lindenauor rejected application of the Mindes test. See Clark v. Widnall , 51 F.3d 917, 921 (10th Cir. 1995) (recognizing Lindenau ’s adoption of four-part second-step test of Mindes ); Costner v. Oklahoma Army Nat’l Guard , 833 F.2d 905, 907 (10th Cir. 1987) (recognizing adoption of Mindes ); Rich v. Secretary of the Army , 735 F.2d 1220, 1225 n.3 (10th Cir. 1984) (same). Accordingly, the Mindes test still applies to “insure[] that judicial intrusions into military matters are limited to the2 We need not reach the question of the viability of the exhaustion

component of the first step of the Mindes test in light of Darbybecause there is no issue of failure to exhaust in this case. We do note, as did the district court, that other courts have no longer required exhaustio n in military cases due to the holding in Darby . See, e.g. , Dowds v. Clinton , 18 F.3d 953, 1994 WL 85040, at **1 (D.C. Cir. 1994) (table); St. Clair v. Secretary of the Navy , 970 F. Supp. 645, 647-48 (C.D. Ill. 1997); Perez v. United States , 850 F. Supp. 1354, 1359-61 (N.D. Ill. 1994).

3 The Air Force does not argue that this case is not justiciable. We conclude it has waived the issue and has conceded justiciabi lity. -7- vindication of federal interests.” See Watkins v. United States Army , 875 F.2d 699, 736 (9th Cir. 1989) (Hall, J., dissenting). In this case, plaintiff alleged a violation of his First Amendment rights and exhausted any administrative remedies. 2 Thus, he met the first step of the Mindes test. In weighing the four factors in the second s tep, we conclude as a matter of law that plaintiff’s claims are of the type which a re reviewable on their merits. 3
See Rich , 735 F.2d at 1225 n.3, 1228-29 (concluding case wa s justiciable where First Amendment claim, among other claims, was rais ed); see also Goldman v. Weinberger , 475 U.S. 503 (1986) (reviewing First Amendment ch allenge to Air Force dress code regulation); Brown v. Glines , 444 U.S. 348 (1980) (reviewing First Amendment challenge to Air Force regulation r egarding circulating petitions); Ogden v. United States , 758 F.2d 1168, 1179 n.7 (7th Cir. 1985) (recognizing that application of Mindes test to circumstances of Goldmanclearly indicates judicial review was appropriate in that c ase; determining that because-8-

First Amendment rights were raised, review was prop er under Mindes analysis); St. Clair v. Secretary of the Navy , 970 F. Supp. 645, 648 (C.D. Ill. 1997) (holding First Amendment claims fall within scope of judicia l review). But see Khalsa v. Weinberger , 779 F.2d 1393, 1398-1400 (9th Cir.) (rejecting Fi rst Amendment challenge to Army appearance regulation under Minde s second step), aff’d , 787 F.2d 1288 (9th Cir. 1985) (affirming prior deci sion and noting Goldmanwas decided in circuit rejecting Mindes ). On appeal, plaintiff argues the Air Force improperl y put his duty as an officer ahead of his duty to the church. Plaintiff contends that his removal from the pulpit after writing the letter to the newspape r editor was the event from which all else emanates. Although plaintiff recogn izes that the Air Force may discipline him for engaging in unauthorized politic al activity, he maintains that removal from the pulpit enters a “religious dimensi on,” violating his First Amendment rights. Appellant’s Br. at 26-27. Furth ermore, he argues that by removing him from the pulpit after he wrote the letter, the Air Force determined the content of sermons, avoided presentation of sen sitive issues, determined the religious needs of the Air Force congregation were different from those of other congregations, and promoted a philosophy to enhance the national spirit prevalent at the time. Likewise, when he was removed from th e preaching schedule after the Thanksgiving Service, he believes the Air Force abused its authority and-9-

improperly disciplined him for an allegedly inappro priate focus. Because he continued to be endorsed for preaching by his denom ination, he believes that his ministry was not inappropriate. Accordingly, plain tiff argues that the Air Force improperly determines religious content in violatio n of the First Amendment. The district court rejected these arguments. Initi ally, the court recognized the need for deference when considering constitutio nal challenges to military decisions. The court further recognized that altho ugh plaintiff sincerely believed that the war he opposed would be morally unjust, th is sincerity did not require accommodation by the Air Force, which viewed any mo ral objection as political under its rules. The district court found no const itutional violation pertaining to the Air Force’s actions in censuring plaintiff’s cr iticism of the Persian Gulf War in his capacity as an Air Force officer; rather, th e court found that the Air Force was enforcing neutral, legitimate and significant i nterests which defeat challenge under the First Amendment. Additionally, plaintiff’s status as an Air Force ch aplain did not alter the district court’s finding. Noting that a chaplain i s a member of both military and religious denomination institutions, the court reco gnized serious implication of the Establishment Clause principles of excessive en tanglement and lack of neutrality in the military administration of chapla incy programs. Nonetheless, the district court determined the Air Force had neutral reasons for its actions. Thus,-10-

as to plaintiff’s constitutionally based request un der the APA to set aside the decision denying him reinstatement and expungement of his performance reviews, the district court concluded “that the conflict between the Air Force and [plaintiff] as an Air Force chaplain does not estab lish a constitutional violation of the religion clauses.” R., vol. I, tab 13 at 39. We have examined the record and relevant case law. After doing so, we conclude the district court thoroughly considered a nd correctly rejected plaintiff’s First Amendment arguments on their merits in its or der filed August 28, 1997. Seeing no reversible error, accordingly, we affirm for substantially the reasons stated by the district court. Plaintiff’s argument that he is not barred from bri nging suit under the FTCA is not properly before us as plaintiff did notraise any FTCA claims in the district court. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (holding court of appeals generally does not consider issues not first raised in district court). Plaintiff brought the underlyi ng action under only the APA, not the FTCA, and sought judicial review only of the re fusal to remove unfavorable reviews from his military record and the denial of reinstatement.-11-

AFFIRMED. Plaintiff’s request for oral argument is DENIED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge