10th Cir. Reports Split Re Justiciability of Equitable Relief Claims by Servicemembers for Unconstitutional Personnel Decisions
Per Hanson v. Wyatt, 540 F.3d 1187 (10th Cir. Sep 10, 2008):
In Dibble v. Fenimore, 339 F.3d 120, 126 (2d Cir.2003), the court noted a circuit split regarding "the justiciability of claims [by servicemembers] who seek equitable relief for alleged constitutional violations in personnel decisions." It counted five circuits that permit "equitable challenges to personnel decisions only when they constitute facial challenges to the constitutionality of military regulations, and not in cases of discrete individualized actions." Id. And it counted three that "have entertained equitable actions protesting military personnel decisions that were not facial challenges to the constitutionality of a military regulation." Id. Citing Walden v. Bartlett, 840 F.2d 771 (10th Cir.1988), the court put this circuit in the minority camp.