Petition for Writ of Certiorari — Banks v. Garrett

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Supreme Court, U.S.

89-1966 FILED

( | JUN 1 1990

@OSEPH F. SPANIOL, JR

CLERK

~ e+

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1989

RICHARD A. BANKS,

Petitioner, Plaintiff

VS.

H. LAWRENCE GARRETT, III,

Secretary of the Navy,

Respondent, Defendant.

Petition For Writ Of Certiorari

To The United States Court Of Appeals For The

Federal Circuit

PETITION FOR WRIT OF CERTIORARI

PENROSE LUCAS ALBRIGHT. Esq.

2306 South Eads Street

Post Office Box 2246

Arlington, Virginia 22202

(703) 979-3242

Attorney for Petitioner

ROGER J. NICHOLS, Esq.

KADENACY & SCHWABER

S88 South Figueroa Street

Suite 1800

Los Angeles, CA 90017

(213) 622-667)

Of Counsel

Bowne of Los Angeles. Inc.. Law Printers. (213) 627-2200

QUESTIONS PRESENTED FOR REVIEW

Does the First Amendment and 10 U.S.C. $1034 bar the

Navy from punishing Petitioner, a military reservist, for

corresponding with members of Congress, while not on

active duty, and about a matter of national interest

involving government waste, fraud or abuse of authority?

Does the United States Court of Appeals for the Federal

Circuit treatment of Petitioner as a public employee

conflict with 5 U.S.C. §2105(d) which explicitly states a

reservist not on active duty is not a public employee?

Is U.S. Navy Regulation Articie 1149 on its face

unconstitutionally vague and overbroad and inconsistent

with 10 U.S.C. $1034 because of its prior restraint of any

person in the Navy from communicating with Congress

without first obtaining Navy permission?

Is the Navy’s maintaining of a secret file on the

Petitioner’s writing of a letter to members of Congress a

violation of the Privacy Act which prohibits any

government agency from maintaining any record describing

how a person exercises rights guaranteed by the First

Amendment unless certain circumstances exist?

Does the Navy’s ad hoc removal of Petitioner from his

paid reservist job without due process as required by Navy

Regulations, and solely because he exercised his rights

under the First Amendment and 10 U.S.C. $1034,

constitute a substantive right entitling him to recover back

pay pursuant to which the U.S. District Court has

jurisdiction under the Little Tucker Act?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....

CITATIONS OF OPINIONS BELOW ........

STATEMENT OF GROUNDS FOR JURIS-

POP TEOEE TT Teer ee ee ee

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED .........

STATEMENT OF THE CASE ..... ccc cccces

I. WHETHER A MILITARY RESERVIST

WHILE NOT IN A DUTY STATUS HAS

THE FIRST AMENDMENT

PROTECTION OF A CITIZEN TO

WRITE TO MEMBERS OF CONGRESS

CONCERNING GOVERNMENT WASTE

IS A SPECIAL AND IMPORTANT

QUESTION OF FIRST IMPRESSION FOR

REVIEW BY THE U.S. SUPREME

re ee er Act oat

A. The cases relied on below do not

consider the special circumstances of

an off duty reservist. ...........

Vili

Il.

III.

ill

B. Reservists’ constitutional and

statutory rights are important federal

questions in light of public policy to

use the reserves to foster efficiency

and defense cost savings while

maintaining defense preparedness. .

REVIEW OF THE DEGREE OF

PROTECTION OF WHISTLEBLOWERS

IN THE MILITARY IS AN IMPORTANT

AND SPECIAL REASON FOR

GRANTING THE WRIT IN THIS CASE.

A. Federal statutory protection (10

U.S.C. §1034) for Whistleblowers. .

B. Failure of the Federal Circuit to

consider the federal interest in

protection of military whistle-

THE FEDERAL CIRCUIT’S ANALYSIS

OF THE APPLICATION OF ARTICLE

1149 TO PETITIONER CREATES A

CONFLICT BETWEEN CIRCUITS AND

WITH A FEDERAL STATUTE. .....

A. Banks was not a public employee

under 5 U.S.C. §2105(d) and Woods

v. Covington County, 537 F. 2d 804,

OS ra

B. Analysis in the court below of

whether Banks acted “‘in his official

capacity” requires review also.

IV.

OTHER IMPORTANT ISSUES SUCH AS

INCONSISTENT TREATMENT OF

WHISTLEBLOWERS, DUE PROCESS,

PRIVACY ACT RIGHTS AND BANKS’

RIGHT TO BACK PAY ARISE FROM

THE PRIMARY FIRST AMENDMENT

QUESTION RAISED IN THIS CASE. .:.

A. Can the Navy selectively enforce

regulations to punish whistle-

ME 2 3 6a uo a8 6 ce Oe 0

B. The Navy did not follow its own rules

providing due process when it

| Se

c. The making and maintaining of the

secret negative fitness report on

Captain Banks’ exercise of his First

Amenament rights constitutes a

violation of the Privacy Act. .....

D. The wrongful removal of Banks from

his commanding officer position

without due process and for the

reason that he exercised First

Amendment rights supports his claim

for back pay of which the district

court had jurisdiction pursuant to the

fk. eee

oe TTT Cee Te eee eee

INDEX OF APPENDICES

APPENDIX A. Decision of the U.S. District Court .. A-1

APPENDIX B. Decision of the U.S. Court of Appeals . B-1

APPENDIX C. Statutory Provisions involved ........ C-1

TABLE OF AUTHORITIES

CASES

Banks v. Garrett, Civil No. 89-1485, (Fed. Cir. April 20,

SD 6 6 6 es Oe HENS 56S S EES A 4 0S SES 17, 18, 20

Bradley v. School Board of Richmond, 416 U.S. 696 (1973) 18

ldman v. Weinberger, 475 U.S. 503 (1986) ....... 9, 10

Kossick v. United Freight Company, New York, 365 U.S. 731

i. PEF Tree TTT eee ee eee ee ae 9

O’Hanlon v. United States, 11 Ct.Cl. 192 (1986) .... 27-29

Rice v. Sioux City Memorial Park Cemetery,

re ee ee ee 9

Sea-Land Service, Inc. v. United States,

ee EE 8S a So 6 ae 08 eh do ees ONS, 17

Thorpe v. Housing Authority of Durham,

pe Ge RS eer eee 18

United States v. Testan, 424 U.S. 392 (1976) ....... 28, 29

United States v. Wickersham, 201 U.S. 390 (1906) ..... 28

W. v. Covi Bank,

PE GG eke Sw asccasececescas 18-20

STATUTES

RE Ae ee eee 6, 27

re i, 18-20

8 | PTET Te eee i, 6, 8-12, 17, 18, 23, 30

is iw 5 ee 84.4 bone cack Ree ee 6, 27

oa 5 ad 6 a aw oN wee ONS Ok w OO Oe. owe 6

United States Constitution, First Amendment . i, 2, 611, 17,

18, 20, 23, 26-29

REGULATIONS

i Ts 66 6.6 6 6865 606 WES 666 Oe 8 19

eg ee ee 26

Navy Military Personnel Manual §3410100 .......... 24

Navy Regulation Article 1148 ............... B has RF

Navy Regulation Article 1149 ... i, 5, 8, 10, 17-22, 24-26, 29

vii

OTHER AUTHORITIES

Whistleblower Protection in the Military, Hearing Before the

Acquisition Policy Panel of the Armed Services of the

Committee on Armed Services, House of Representatives

H.A.S.C. No. 100-42, November 19, 1987 ......... 14-16

viii

CITATIONS OF OPINIONS BELOW

The minute orders and memorandum opinions of the

United States District Court for the Eastern District of Virginia,

Alexandria Division (File No. 86-0923-A) printed in Appendix

A, infra, were not officially reported. The opinion of the United

States Court of Appeals for the Federal Circuit, (File No. 89-

1485) printed in Appendix B, was officially reported at 901 F. 2d

1084 (Fed. Cir. 1990)

STATEMENT OF GROUNDS FOR JURISDICTION

The original opinion and judgment of the Court of Appeals

were dated and entered February 9, 1990. A timely Petition for

Rehearing was denied March 12, 1990. This Court has

jurisdiction under 28 U.S.©. §1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED

The United States statutes and regulations involved are

United States Constitution, First Amendment; 5 U.S.C. §552; 5

U.S.C. §2105; 10 U.S.C. §1034; 28 U.S.C. $1346; 42 U.S.C.

$1983; 45 Comp. Gen. 405; CNAVRES INST 1001.1c; Navy

Military Personnel Manual §3410100; Navy Regulation Article

1148; and Navy Regulation Article 1149, the most significant of

which are set forth in Appendix C.

STATEMENT OF THE CASE

Petitioner, Richard A. Banks (hereinafter “‘Banks’’), is a

Navy aviator in the United States Naval Reserve. From

December 1966 and continuing until December 1971, Banks

served as a Naval aviator flying attack bombers and his Navy

active duty record includes 126 missions of combat flying during

the Vietnam War.

Prior to July 1983, at the behest of Congress, the United

States Navy proposed for the first time to deliver new FA/18

Hornet attack aircraft to a Navy Reserve squadron. On July 25,

1983, Banks assumed command of VFA-303 which was to be the

first squadron to receive the newly constructed aircraft. Many

enlisted personnel were selected from all over the country. The

move to Lemoore moved 45 active duty enlisted personnel and

4 active duty officers and their families to Lemoore. The new

aircraft were scheduled for delivery starting April, 1984.

The decision to provide new aircraft to the Naval Reserve

was not without controversy. indeed, once the Congressional

authorization had been made to transfer the aircraft to the

reserve squadron, members of the active duty Regular Navy

officers lobbied Congressional staff members to rescind the

authorization. Most of this lobbying effort apparently took place

by the active duty regular Navy officers lobbying Carl Smith,

who was then a staff member with the Senate Armed Services

Committee. Their position was that reservists who drove

Mercedes Benzes during the week should not be getting new

aircraft while regular Navy pilots were still flying older aircraft.

The intensive lobbying effort by the regular Navy establishment

officers in violation of Navy Regulations and Congressional

Statutes was not subject to criticism by the regular Navy, nor did

the Navy seek to punish these regular Navy officers in the same

way it sought to punish Banks when he sought to express his

First Amendment rights concerning what he perceived as a

serious problem of waste and threat io military readiness and

reserve mobilization.

In December of 1983, Banks heard that the delivery of the

FA/18 aircraft to the reserve units would be canceled.

Banks called Admiral Fred Palmer, former chief of Naval

Reserve, to seek his advice on what to do to express his

concerns regarding the possible reversal. He asked Palmer what

could be done. Palmer suggested a letter writing campaign to

Congress. In late December, 1983, Banks discussed two ways

of addressing the matter with his immediate superior, Captain

Thomas B. Latendresse. These two methods were a letter to

individual members of Congress expressing his concern, and an

official letter to the Secretary of the Navy via the chain of

command, expressing his concern. In December, 1983, Banks

forwarded an official letter to the Secretary of the Navy via his

chain of command, expressing his concerns. The letter was

subsequently returned to him to require the inclusion of

additional addressees. The letter was corrected and sent out

again with a later date. Banks never received a reply to the

letter from the Secretary of the Navy to whom the letter was

addressed or from anyone else to whom the letter was sent.

After January 1, 1984, events occurred which indicated

that a clear change in direction for Banks’ squadron, VFA-303,

was occurring. The squadron lost its assigned parking places at

Naval Air Station Lemoore, where it had only recently moved,

and a planned FA/18 maintenance conference for Banks

squadron in St. Louis when the aircraft were built was canceled.

Banks needed information to quell rumors and discontent.

He called Rear Admiral T.F. Rinard (hereinafter “‘Rinard’’) and

others on January 6, 1984. Rinard was not forthright and did

not tell Banks what was then known. The Navy’s position later

became there was no obligation ‘“‘on the part of anyone to tell

Commander Banks” what was happening, even though Banks

had the ongoing obligation in transitioning his squadron.

Banks also discussed writing the letter to Congress with

Rinard who was the Commander, Naval Air Reserve Forces.

Neither Latendresse nor Rinard discouraged Banks from writing

the Congressional letter, nor did they advise him of the limits of

what he could say in such a letter. Admiral Palmer had

similarly not given any advice on how to write Congress. Banks

then sought the advice of Captain John Bell at the Naval

Reserve Association. He was advised he could write members

of Congress using his rank and position as a Naval Reservist not

on active duty.

He also obtained a copy and read 10 U.S.C. $1034. In

determining to write the letter he followed the advice he

received and what to him was the plain language of the statute.

Banks with the assistance of the wife of another reservist,

drafted a letter to members of Congress dated January 6, 1984.

At the time Banks drafted the letter, Banks was not on any

duty status. That is to say, he was not on active duty, he was

not on active duty for training, he was not in an inactive duty

drill status, either for pay or non-pay. He was in fact in every

respect, a civilian. He had completed his duty and was on his

way home. He would not have been subject to jurisdiction

under Uniform Code of Military Justice, the Hatch Act, or any

similar act which controlled the activities of active duty

personnel or reserve personnel in an active duty status.

The letter stated that Banks was concerned about the

possibility that ‘the current planned transition of this command

to FA/18 aircraft is in jeopardy.”” Banks saw the cancellation of

the delivery of FA/18 aircraft to his reserve squadron as having

a serious impact on Naval Reserve mobilization and the

readiness of the Naval Reserve to respond in times of need in a

less costly manner than if regular Navy were exclusively used.

Banks, through his letters, attempted to point out the problem,

and to generate Congressional interest in following through on

a decision previously made by the Navy at Congressional

insistence and subsequent Congressional appropriations

approval.

Within days after he sent the letters to the individual

members of Congress, Banks learned from an anti-reserve Navy

Captain that, indeed, the Navy had changed its plans. Carl

Smith, having been successfully lobbied by the Regular Navy,

had put political pressure on the Secretary of the Navy and

caused the change.

When the active duty Navy received infomation about the

letter to individual members of Congress there was immediate

outcry. Captain Jerry Palmer contacted Banks and informed

him that his letter had “‘created a hornet’s nest and the Secretary

of the Navy was pissed.” os

Copies of the letter were received by Rinard and Vice

Admiral Kempt, the Chief of Naval Reserve. In late January of

1984 Rinard conferred with Vice Admiral Kempt and Vice

Admiral Kempt conferred with the Secretary of the Navy, John

F. Lehman, Jr., about what to do to Banks.

Lehman already knew about the problem and continued to

discuss it. Banks’ letter had also aggravated the Chief of Naval

Operations. Admiral Watkins “was more animated and was

angry about it.”” Kempt considered the problem a “hot potato”’

because of the conflicting interests of junior Regular Navy

personnel and the Reserves.

It was decided to relieve Banks from his command of

VFA-303, which was a pay billet with substantial pay and

significant responsibility, and to transfer him to a voluntary

training unit which was a non-pay unit and which contained

members who did not have mobilization assignments and were

not within the mobilization plans of the Navy Reserve. Neither

Rinard nor Kempt made any full research into applicable law or

regulations before firing Banks. Rinard told Banks by telephone

he was immediately transferred to a non-pay VTU.

In March, 1984, Rinard initiated and executed an adverse

fitness report on Banks. For the first time, Rinard in writing

stated that he had transferred Banks “‘solely”’ due to his alleged

violation of Article 1149 of Navy Regulations. Rinard

arbitrarily assigned Banks low grades across the face of the

fitness report and placed negative comments on the back of the

fitness report. The report would have prevented Banks

advancement from Commander to Captain. Banks replied to the

adverse report expressing his objection.

On January 10, 1986, after the initiation of this lawsuit, the

adverse fitness report was removed from Plaintiffs records

voluntarily by the Navy on the ground Rinard was not in a

position to write it. His immediate superior agreed Rinard was

not in a position to write it.

Subsequently, Banks petitioned the Navy’s Board of

Correction of Naval Records for relief. The fitness report that

was removed from his official record mysteriously reappeared

and formed the basis for a denial of his claim.

In early 1984, the Navy Investigative Service conducted an

investigation into the entire letter writing incident. This

investigation consisted of interviews of many members of the

squadron concerning Banks’ alleged misconduct. Banks’

position is that the investigation was done to harass him. The

Navy has refused to disclose how this investigation started. The

investigation lead to nothing.

Subsequently, Banks was the subject of further harassment.

He was asked to sit on an A-7 flight investigation board. When

Admiral Rinard learned of it, Banks was removed from the

board.

As it turned out, Banks’ concerns were well justified. The

Navy issued an ALNAV in February, 1984, delaying the

delivery of new FA/18 aircraft to VFA-303 and having VFA-303

personnel augment the regular Navy squadron at Lemoore,

VFA-125. The new FA/18 aircrafts were not delivered to VFA-

303 until September, 1986. VWFA-303 served only as an

augmentation unit until May, 1986.

Banks filed an action in U.S. District Court for the Eastern

District of Virginia on January 22, 1986 for mandamus and

declaratory relief that the Navy’s actions against him violated

the First Amendment, 10 U.S.C. §1034 and 42 U.S.C. §1983,

and therefore he was entitled to back pay for the time he was

not allowed to work, and damages for the violation of The

Privacy Act under 5 U.S.C. §552a(e) by the Navy in maintaining

a secret file containing the negative fitness report.

On July 29, 1988, after the Government filed a Motion To

Dismiss the district court dismissed Banks’ claims under the

Privacy Act, 5 U.S.C. §552(a)(e)(7).

On October 27, 1988, after the filing of another Motion To

Dismiss, the district court dismissed Banks’ claims under the

Little Tucker Act, 28 U.S.C. §1346(a)(2).

After a one day trial on the declaratory relief cause of

action, the court on February 1, 1989, granted the Navy’s

motion to dismiss the remainder of the complaint on the ground

that upon the facts and the law Banks had shown no right to

relief.

The U.S. Court of Appeals for the Federal Circuit

affirmed.

REASONS FOR GRANTING THE WRIT

I. WHETHER A MILITARY RESERVIST WHILE NOT

IN A DUTY STATUS HAS THE FIRST AMENDMENT

PROTECTION OF A CITIZEN TO WRITE TO

MEMBERS OF CONGRESS CONCERNING

GOVERNMENT WASTE IS A SPECIAL AND

IMPORTANT QUESTION OF FIRST IMPRESSION

FOR REVIEW BY THE U.S. SUPREME COURT.

A. The cases relied on below do not consider the

special circumstances of an off duty reservist.

There is no precedent other than the decision below in this

case on the issues presented in this case for review by the U.S.

Supreme Court. The crux of this case is the Navy

establishment’s punishment of a military reservist, Captain

Banks, for writing a letter to members of Congress concerning

their attempts to undermine a previous cost saving measure

adopted by the Navy and approved by Congress. He wrote the

letter while not in a duty status and after he attempted to go

through the regular Navy chain of command. Captain Banks

expressed concern in the letter that Congress’ previous

authorization to transfer new FA/18 aircrafts to his reserve

squadron for the first time instead of to the regular Navy

squadron had not been carried out and was in danger of never

being implemented by the regular Navy.

The Respondent Secretary of the Navy asserts that under

Article 1149 of Navy Regulations, the Navy has the unfettered

authority to cut off a military reservist’s First Amendment right

to express his views to members of Congress even when the

reservist is not in any duty status and has unsuccessfully

attempted to go through the chain of command. According to

Respondent the federal statute (10 U.S.C. §1034), and formerly

identical Navy Regulation (Article 1148), which are intended to

protect against such chilling, all pervasive exercises of authority,

have no affect to protect Captain Banks’ action. Further, the

Respondent asserts the Navy has the authority to maintain secret

records on this exercise of First Amendment rights by a military

reservist in direct contravention of the Privacy Act.

Finally, and most egregiously, the Navy asserts it may take

punitive action against a reservist for their exercise of First

Amendment rights without affording him any due process as

provided under the Navy’s own regulations. The unlawful

punitive action against Captain Banks consisted of: (1) relieving

him of his command; (2) transferring him to a non-pay — non-

mobilizable VWTU Unit from a pay mobilizable Unit; (3)

subjecting him to a Naval Investigative Service investigation; (4)

issuing and maintaining secret an unsatisfactory fitness report

solely for writing the letter to Congressmen; and (5) removing

him from sitting on a flight accident board concerning an aircraft

of which he was very familiar. In this case the Navy took such

action against reservist Captain Banks while members of the

regular Navy establishment actively and persona!ly lobbied Carl

Smith, who was then a staff member with the Senate Armed

Services Committee, to reverse the previous authorization to

provide new FA/18 aircrafts to Captain Banks’ squadron. The

Navy paid no attention to this conduct by regular Navy

personnel, yet “threw the book” at reservist Captain Banks.

Under Rule 17 of the U.S. Supreme Court Rules, a

petition for Writ of Certiorari is granted when there are special

and important reasons therefor such as “‘. . . a Federal Court of

Appeals has decided an important question of Federal law which

has not been, but should be settled by this Court or has decided

a Federal question in a way that conflicts with the applicable

decisions of this Court.”” Rice v. Sioux City Memorial Park

Cemetery, Iowa 349 U.S. 70 (1955). The principles involved

must be of importance to the public, as distinguished to that of

merely the parties. Id. The Federal question involved should be

novel. Kossick v. United Freight Company, New York 365 U.S.

731 (1961), rehearing denied 366 U.S. 941.

The issue of whether an off-duty military reservist can be

stripped of First Amendment rights and severely punished if he

exercises such rights has never been addressed by the U.S.

Supreme Court. It is a novel question of considerable public

importance. Respondent cited no cases involving off-duty

reservists. All the cases relied on involved active duty regular

military personnel. The precedent relied on by the Federal

Circuit addressed only active duty, regular military personnel.

Finally, the trial court below relied heavily in its decision

on Goldman v. Weinberger 475 U.S. 503 (1986) in supporting its

decision. The Goldman case, and any other cases cited by the

court below in its opinion, are simply not on point. Not only

was there no specific statute such as 10 U.S.C. §1034 to protect

Goldman, but all of the cases involve situations where the

Plaintiff was on active duty and in a duty status, and wearing a

uniform. In this case, Banks was not in a duty status. He was

free to exercise his First Amendment rights, he was not in Naval

service in any sense that he might forfeit his Constitutional rights

and therefore, Article 1149 of the Navy Regulations did not

apply to him.

Further, this Court should examine whether Goldman

should be applied to whistleblowers. Whistleblowers inherently

are contra to the military principles of “. . . instinctive

obedience, commitment and esprit de corp.” Goldman, supra

at 503. Yet Congress has already expressed its intent in 10

U.S.C. $1034 that the free flow of information, whether critical

of the military or not, takes precedence over the military

principles upheld in Goldman.

B. Reservists’ constitutional and statutory rights are

important federal questions in light of public policy

to use the reserves to foster efficiency and deferise

cost savings while maintaining defense

preparedness.

The First Amendment rights of military reservists is an

important public question today because of the critical public

policy to improve efficiency and cut defense spending in order

to reduce the overwhelming Federal deficit, while at the same

time maintaining national defense preparedness. The reserves

afford citizens an opportunity to serve our country and bolster

national defense preparedness at less cost to taxpayers. The

public policy is to encourage participation in the reserves as

demonstrated by Congress’ action to appropriate funds to

provide new FA/18 aircrafts to Captain Banks’ reserve squadron.

This action was considered a sign that Congress desired to

bolster confidence in the reserve system. However, the decision

in this case puts a damper on the encouragement and growth of

participation in the reserves. If Articles 1149 of Navy

Regulations is applied as broad sweeping as the Federal Circuit

has done in this case to override 10 U.S.C. $1034, confusion as

to the constitutional and statutory rights and military obligations

of reservists will persist and a chilling effect on qualified citizens

serving in the reserves will result. Clearly, this is an undesirable

and unconstitutionai result. This court presents the last resort

for a hearing on the First Amendment and statutory issues

presented by Captain Bank’s claims.

II. REVIEW OF THE DEGREE OF PROTECTION OF

WHISTLEBLOWERS IN THE MILITARY IS AN

IMPORTANT AND SPECIAL REASON’ FOR

GRANTING THE WRIT IN THIS CASE.

A. Federal statutory protection (10 U.S.C. §1034) for

Whistleblowers.

Captain Banks, in writing his letter to members of

Congress, acted as a military whistleblower. He sought to bring

to the members attention the Navy’s foot-dragging and/or

possible reversal of a previously approved, cost-saving defense

project to provide topflight, first class training to lower cost

reserves on new FA/18 aircraft.

There is express federal statutory protection for military

whistleblowers by virtue of 10 U.s.C. §1034 which read as

follows in 1984:

No person may restrict any member

of an armed force in communicating

with a Member of Congress, unless

the communication is unlawful or

violates a regulation necessary to the

security of the United States.

The exact same language is contained in Navy Regulation,

Article 1148 under the heading “Dealing with Members of

Congress.”

To further bolster the protection of military whistleblowers

Congress amended Section 1034 in 1988. As amended, Section

1034 was significantly strengthened by the 100th Congress in

1988 by imposing absolute restrictions against persons restricting

an armed service member from communicating with a member

of Congress and by providing specific measures for

administrative relief.

Banks’ outset position is that his action was clearly

protected by the 1988 change in 10 U.S.C. $1034, particularly in

view of its legislative history. The clear impact of this

amendment demonstrates that Congress was quite upset by past

incidents of military punitive actions against servicemen who

communicated abuse, fraud and other wrong doings in the

military to Congressmen.

Admittedly, the legislative history contains the following:

‘“*The amendment to section 1034 of title 10, United States Code,

made by subsection (a)(1), shall apply with respect to any

personnei action taken (or threatened to be taken) on or after

the enactment of this Act as a reprisal prohibited by subsection

(b) of that section.” Act Sept. 29, 1988, P.L. 100-456, Div. A,

Title VIII, Part D., §846 (d), 102 Stat. 2030.

Nevertheless, it is clearly people like Banks that Congress

thought should be protected by 10 U.S.C. $1034. The amending

language essentially continues the prohibition of military

interference with servicemen who write Congressmen. It simply

gives servicemen a specific remedy rather than protracted,

expensive, and as this case exemplifies, uncertain judicial

remedies available to them. The Conference Committee Report

states as follows:

“Safeguarding military whistleblowers (sec. 846)

The House bill contained a provision (sec. 810) that

would protect lawful communications by military personnel

to a Member of Congress or an Inspector General in the

Department of Defense. The House bill would prohibit

retaliatory personnel actions as a reprisal for such a

communication, require an investigation by the DOD

Inspector General of certain allegations, and provide

statutory guidance of the Boards of Correction of Military

Records in viewing all allegations of such reprisals.

The Senate amendment contained no similar -

provision.

The Senate recedes with an amendment which

clarifies the rights protected by this provision and revises

the review and reporting procedures.

The conferees note that in the course of their

duties, members of the Armed Forces may become aware

of information evidencing wrongdoing or waste of funds.

It is generally the duty of members of the Armed Forces

to report such information through the chain of command.

Mem f rmed for however, have the right to

mmunicate directly with Mem of Congress and

Inspector Generals (except to the extent ". a

communication is unlawful under applicable law or

regulation), and there may be ee in_ which

rvi mem lieve it is n a disclose

information directly to a Member of oe or an

Inspector General. [underlining added] When they make

lawful disclosures, they should be protected from adverse

personnel consequences (or threats of such consequences),

and there should be prompt investigation and

administrative review of claims of reprisals. When such a

claim is found to be meritorious, the Secretary concerned

should initiate appropriate corrective action, including

disciplinary action when warranted.

It is the intent of the conferees that the Secretaries

of Defense and Transportation implement this section in a

manner consistent with the Inspector General Act of 1978

and the Uniform Code of Military Justice.” Act Sept. 29,

1988, P.L. 100-456, Div. A, Title VIII, Part D, §846(e).

As noted in the Conference Committee Report, the House

spearheaded the bill. The sense of the House Committee

hearings on the bill manifests Congressional approval of actions

like Banks took.

Representative Charles E. Bennett of Florida, Chairman,

Seapower and Strategic and Critical Materials Subcommittee

stated:

I want to congratulate Mrs. Boxer and the

Chairman of the committee, and the total military

structure, civilian and otherwise, in coming to grips

with this issue, because it is really a very important

issue when people express concerns about things that

are not going just right. They may be right or

wrong, the people that raise the criticism, but they

ought to be encouraged, not discouraged, and people

ought to know that people like constructive and

creative thinking, and every time we get an

opportunity to give an accolade to people that have

that kind of courage, we ought to do it.

Whistleblower Pr: ion in the Military, Hearing Before

the Acquisition Policy Panel of the Armed Services of the

Committee on Armed Services, House of Representatives

[H.A.S.C. No. 100-42, November 19, 1987, page 1]

Representative Nicholas Mavroules of Massachusetts,

Chairman, Acquisition Policy Panel said:

This morning the panel on Acquisition Policy

meets to receive testimony on the protection afforded

to members of the military services who step forward

with information on waste, fraud or wrongdoing in

the military. These individuals are frequently

referred to as “military whistleblowers.’”’ In fact,

“‘whistleblower”’ may be too simplistic a description.

More correctly, those from the military

services who step forward with information on a

range of problems provide Members of Congress

with a real service. Nothing is more important to

this panel, nor should it be to the Department of

Defense, than candid and direct information.

Without such candid and direct information, for

instance, it would have been impossible for the

House Armed Services Committee to develop the full

facts associated with the B-1B program or the MX

Inertial Measurement Unit.

A member of the military, whether he be a

petty officer, sergeant or a general, should never fee!

threatened by stepping forward with the facts. Yet,

there are instances where members of the military

are reluctant to step forward for fear of retaliation or

retribution. No serviceman or woman should ever be

forced to compromise their honesty, integrity or, for

that matter, their career.

Whistleblower Protection in the Military, supra, pages 1-2.

Representative Barbara Boxer of California said:

There is a basic disagreement, at least with

this Member and the Pentagon over how well the

current system is working. When I hear from Mr.

Vander Schaaf the small number of cases that are

coming forward, I could say that I, as one Member

of Congress, could better than double those cases,

people who have felt that they were wronged.

So something is not working, and I think, Mr.

Chairman, the main reason that, we in my opinion,

put forward legislation such as this is to put into play

a deterrent, a deterrent, because you are so right,

Dr. Johns [the previous witness]. We are not going

to change a culture. It is very difficult to do that

unless the military itself decides they want to do that.

I hope some day they will, but in the meantime there

are people who are put into psychiatric wards, there

are people who are discriminated against, have their

careers ruined.

No matter whether it is five, ten, or twenty,

or one hundred, we are really not sure. We know it

is happening out there. It seems to me that the

people that are inflicting that kind of injustice on

these individuals should know that there is a penalty

involved if they are doing that and they are not right

in doing that, and that is why we talk about a

deterrent.

Whistleblower Protection in the Military, supra, page 131.

<TC

dam.

B. Failure of the Federal Circuit to consider the

federal interest in protection of military whistle-

blowers.

The Federal Circuit completely ignored the legislative

intent of 10 U.S.C. §1034 and failed to consider the

whistleblower content of Banks’ letter. In the Federal Circuit

opinion below at footnote 1 the court opines that the amendment

to 10 U.S.C. §1034 is not retroactive and therefore ‘“‘is not

applicable to this appeal, and we intimate no disposition whether

Article 1149 is invalid under section 1034, as amended. That

issue is for another day.” Banks v. Garrett, Civil No. 89-1485,

slip op. at 6-7, footnote 1 (Fed. Cir. April 20, 1990).

This conclusion of the Federal Circuit is incomprehensible.

“That issue” of whether Article 1149 is invalid under section

1034 as amended, is squarely before the court in this case.

Clearly, the legislative intent of Section 1034 has always been to

protect military whistleblowers. The 1988 amendment merely

added certain remedies. Banks is not asking for those remedies.

However, he is asking for the protection of his conduct that

Section 1034 is intended to afford.

The Writ should be granted in this case in order to

examine these significant questions as to whether Navy

Regulation Article 1149 on its face and as applied to Petitioner

who was a reserve officer in no duty status is constitutional

under the First Amendment and 10 U.S.C. $1034 which is

embodied within Navy Regulation Article 1148.

With respect to the issue of inference of retroactivity of an

amendment to a statute, it is true that generally retroactivity is

not inferred, See, Sea-Land Service, Inc. v. United States, 493

F. 2d 1357, 1369 (1974). However, there is no final judgment

in this case and this Court may and should seriously consider the

1988 change in 10 U.S.C. $1034 and the reasons therefor. See

Bradley v. School Board of Richmond, 416 U.S. 696 (1973);

Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969).

Ill. THE FEDERAL CIRCUITS ANALYSIS OF THE

APPLICATION OF ARTICLE 1149 TO PETITIONER

CREATES A CONFLICT BETWEEN CIRCUITS AND

WITH A FEDERAL STATUTE.

A. Banks was not a public employee under 5 U.S.C.

§2105(d) and Woods v. Covington County Bank,

537 F. 2d 804 (1976).

The Federal Circuit opines that the “trial court properly

balanced the First Amendment interest of Banks, as a public

employee, against the government employer’s interest. . .”

Banks, slip. op. at 10.

In another part of the opinion where the court is reviewing

the trial court’s analysis of the application of the phrases “‘in his

official capacity” and ‘“‘person in the naval service” to Captain

Banks under the circumstances of this case it holds the trial

court’s finding he acted in his official capacity is “‘not clearly

erroneous” and that “Banks has shown no authority for

construing that phrase [person in the naval service] so as to

exclude reserve officers in reserve units.” Banks, slip. op. at 9.

Apparently the Federal Circuit did not consider

Petitioner’s citation of 5 U.S.C. §2105(d) which reads as follows:

(d) A Reserve of the armed forces who is

not on active duty or who is on active duty for

training is deemed not an employee or an individual

holding an office of trust or profit or discharging an

official function under or in connection with the

ee eo cae) ~ head,

United States because of his appointment, oath, or

status, or any duties or functions performed or pay

or allowances received in that capacity.

See also, Woods v. Covington County Bank, 537 F. 2d

804, 810-811 (1976) and 45 Comp. Gen. 405.

Banks’ status is further reflected in 45 Comp. Gen. 405

which states:

Section 29(d) of the Act of August 10, 1956,

ch. 1041, 70A Stat. 632, 5 U.S.C. §30r(d) [now 5

U.S.C. §2105(d)], provides that when a reservist is

not on active duty for training, he “‘is not on active

duty, or when he is on active duty for training, he “‘is

not considered to be an officer or employee of the

United States or a person holding an office of trust

or profit or discharging any official function under,

or connection with, the United States because of his

appointment, oath, or status, or any duties or

functions performed or pay or allowances received in

that capacity.”

Despite this authority the Federal Circuit concludes

apparently that because Banks held a Reserve commission, he

was subject 24 hours a day, 365 days a year, to the restraints

applied by Article 1149 of Navy Regulations (and by extension,

many other Articles of Navy Regulations). This argument,

although accepted by the trial court and the Federal Circuit is at

odds with the leading case involving the rights of Naval

Reservists. See Woods v. Covington County Bank, supra at 810-

811. Under Woods a reservist while not on active duty is not

a public employee. Id at 810-811. Even if you consider Banks

status just prior to his writing the letter, he was on duty for

training only. Such reservist training duty does make him a

public employee under 5 U.S.C. §2105(d).

This Court must grant this writ and determine whether it

was erroneous to treat Petitioner as a “public employee,”

contrary to applicable law and precedent. The treatment of

Banks as a public employee creates a conflict between the

Circuits in light of Woods. This Court should resolve the

conflict.

B. Analysis in the court below of whether Banks acted

“in his official capacity” requires review also.

On the issue of whether Banks wrote his letter “‘in his

official capacity” as referred to in Article 1149 of Navy

Regulations, the Federal Circuit affirmed the determination of

the trial court below. The trial court below cited the fact that

Banks used Navy letterhead and signed and referred to his title

as Commander of his squadron. Banks, slip. op. at 9.

Petitioner respectfully submits that “official capacity”

means a great deal more than these superficial facts. These

facts should not be controlling and dispositive of the important

First Amendment rights at stake here.

If one understands that the institution of Congress and

individual Congressmen are different entities, then it should also

be understood that Navy Regulation, Article 1149 does not bar

use of official letterhead in letters to members of Congress, just

as it does not bar communicating with members of Congress

from a telephone located on military base or talking to them

while in uniform as this Court knows, which is the practice of

the military in Washington, D.C.. Moreover, at oral argument

on appeal the Navy stated that the decision to fire Banks would

have been the same whether Navy letterhead was used or not,

nt a eae Y

since the mere writing of the letter in the form written, was

contrary to “good order and discipline.”

Banks’ letter, cannot be considered in a vacuum. It is

submitted that-no one who has dealt with the government (and

the district court below did not question the matter) would for

a minute consider that Congressmen receiving Banks’ letter were

misled into thinking that Banks was communicating to them,

much less to Congress, in behalf of an institution [the Navy] in

his official capacity.

It should also be noted that even if Banks had been

ostensibly communicating “‘in his official capacity,” more is

required to violate U.S. Navy Regulation, Article 1149. To

violate such Article, five elements are involved; (1) Banks must

be “‘a person in the Naval service” within the meaning of that

Article; (2) He must be acting in his official capacity; (3) He

must “‘apply”’ to: (a) The Congress, or (b) either House thereof,

or (c) any Committee thereof; (4) The application must be for:

(a) legislation or (b) appropriations or (c) Congressional action

of any kind; and of course (5) it must be without consent and

knowledge of the Secretary of the Navy.

In summary, taking these (except (5) up in order, it is

clear that:

(1) At the time Banks acted, he was not within the

meaning of Article 1149, “a person in the Naval Service.” He

was not in any duty status at the time he sent the letters to

members of Congress. The uncontroverted testimony at trial

was that Banks wrote and sent the letters after he completed his

drill duty.

(2) As indicated above, none of the addressees would

considered Banks was acting “‘in his official capacity.”’

(3) Banks did not apply to, or for anything, as such.

The word “apply” connotes asking or soliciting for something

specifically, some action. He certainly did not apply to “the

Congress,”’ but rather wrote to members of Congress and the

same is true respecting “either House thereof’ or “any

Committee thereof.”

(4) Banks did net ask for legislation or for

appropriations, or even ask for any “Congressional” action. He

offered information on the lack of follow through on past

Congressional action. At most, he invited the Congressmen

concerned to call him if they had any questions on the subject.

** Congressional actions” relate to actions from a formal

assembly of Congressmen and an invitation for a Congressman

to call him hardly qualifies as applying for any type of

Congressional action.

What Article 1149 is really intended to prohibit -- and all

that makes any sense -- is the palming off by some Naval official

of an institution (Navy) to institution (Congress) communication,

which the Banks’ letterhead or reference to his title could not

do.

The response of the Navy was a knee jerk and get rid of

him attitude as evidenced by the failure of the Secretary of the

Navy to even respond to the official letter. As Representative

Barbara Boxer said in her Whistleblower statement, supra,

“Something is not working.” There were any number of ways

the Navy could have responded to the letters besides relief from

command, assignment to a non-pay unit, a Naval Investigation

Service Investigation and a lousy fitness report, all of which

were punitive.

ee ee ee Oe kee eee

ee ee r

Only this Court may now properly analyze the issue giving

appropriate consideration to the broader issue of the special

First Amendment protection afforded a whistleblower.

IV. OTHER IMPORTANT ISSUES SUCH AS

INCONSISTENT TREATMENT OF

WHISTLEBLOWERS, DUE PROCESS, PRIVACY

ACT RIGHTS AND BANKS’ RIGHT TO BACK PAY

ARISE FROM THE PRIMARY FIRST AMENDMENT

QUESTION RAISED IN THIS CASE.

A. Can the Navy selectively enforce regulations to

punish whistleblowers?

The courts below refused to even consider the inconsistent

regulatory treatment the Navy was applying to Banks.

While it was clear that active duty members of the Navy

were lobbying Carl Smith to get the Senate Armed services

committee to change its mind concerning the giving FA/18’s to

reservists, and this was a fact known by Secretary of Navy

Lehman, Admiral Kempt and Admiral Rinard, they nevertheless

sought to ignore these efforts at lobbying and instead, to focus

their wrath on a reservist, Banks, who, acting as a

whistleblower, thought he was doing the right thing in the right

way.

The court below refused to understand, or even consider,

or even admit evidence concerning the dual standard the Navy

was applying with respect to Banks on one hand, and regular

Navy officers on the other hand. The court gave no recognition

to the special protection afforded whistleblowers under 10

U.S.C. $1034.

As we noted in our statement of the case, Banks’ concern

resulted from rumors which were the result of a shifting position

in the Department of the Navy. It is clear enough that the

shifting position was the result of the regular Navy who was

continuously lobbying Carl Smith, who was at that time on the

staff of the Senate Armed Services Committee. The lobbying

effort of the regular Navy establishment with respect to Carl

Smith, resulted in action which delayed for more than two years

VFA-303 from receiving aircraft. Banks’ efforts to the members

of Congress was different only in that it was in writing as

compared to that of his regular Navy counterparts who were

very effective in their verbal, personal lobbying. They were not

the victims of any immediate relief or transfer from command to

a non-pay billet. This selective enforcement of a whistleblower

is a special question which should be reviewed by this Court.

B. The Navy did not follow its own rules providing

due process when it removed Banks.

As we have continually noted, it is the Navy’s position that

Banks was in Naval service at the time he wrote the letter, and

therefore, was subject to the full implementation of Article 1149

of Navy Regulations. Although the Navy has taken the position

that Banks was in every way subject to Navy Regulations, the

Navy itself failed to follow its own rules as set forth in the Navy

Military Personnel Manual.

§3410100 thereof concerns officer performance. §5 of that

section, which appears at 34-3 in the July 1982 edition, provides

for stringent rules for relief for cause. That section begins:

‘ta. The detachment of an officer for cause is

the administrative removal of an officer from his or

her current assignment by reason of misconduct,

* Leta dat Cb Ay

unsatisfactory performance of duty, or marginal

performance of duty.

b. Detachment for cause is one of the

strongest administrative measures used in the case of

Officers....””

Exact procedures are set forth in paragraph 5 concerning

the detachment for cause. Included in the section under

5(b)(f)(1) is a statement as follows: ‘A statement of the officer

whose detachment is requested is required by Navy

Regulations.” Banks was given no such opportunity to make a

statement at the time he was removed from command and

transferred. Even though Navy Regulations were allegedly

being applied to him, the Navy sought not to grant Banks the

due process provided under these rules with respect to Banks’

detachment.

Subsection f(5) appearing at page 34-6 states: ‘The officer

concerned should be afforded a reasonable period of time,

normally ten working days, in which to prepare his or her

statement to the detachment for cause request. Specific

requirements of the statement of the officer concerned are

delineated below.”

The Navy Military Personnel Manual thereafter indicates

in detail what the officer’s statement should contain and more

importantly what the detachment for cause request should

contain.

The Navy takes the position that the transfer of Banks

from a pay unit as commanding officer, to a non-pay unit in a

voluntary training unit did not require the followine of the

procedure set forth in the Manual. Nevertheless, in contrast,

they seek to assert that Navy Regulations Article 1149 is all

pervading, and that Banks had to follow that regulation while

the Navy need not follow its own Military Personnel Manual or

Navy Regulations. Banks offered the Navy Military Personnel

Manual version of July 1982 in evidence in the court below, but

the Navy objected. Banks believes that the Navy Military

Personnel Manual with respect to detachment of officers is

applicable to Banks if it is the Navy’s position that Navy

Regulation Article 1149 is also applicable to him.

Further, the Navy did not even follow its own instructions

concerning transfers and termination of officer assignments. The

key instruction is CNAYRES INST 1001.1c of November 20,

1980. Chapter 2, section B2101 requires under paragraph (6) on

any individual transfers as follows: ‘‘(6) When an officer is

transferred from a drill pay to a non-drill pay status, he/she will

be mailed a letter informing him/her of this transaction prior to

the effective date of transfer.’’ In the instant matter, Banks was

immediately terminated and transferred to the VTU without

notification required pursuant to CNAVRES inst. 1001.Ic,

without the Navy ever following CNAVRES inst. 1001.1c.

The Navy cannot have it both ways. It cannot on one

hand say that Banks was in Naval service and he can be relieved

from command, and this was not punitive, and at the same time,

not follow its own regulations with respect to the relief from

command of persons in the Naval service.

C. The making and maintaining of the secret negative

fitness report on Captain Banks’ exercise of his

First Amendment rights constitutes a violation of

the Privacy Act.

It is undisputed that an offending Fitness Report and other

related papers were placed in Banks’ Naval records and, while

they were later removed, they were subsequently retrieved for

the purposes of Banks’ case before the Board for Correction of

Naval Records. Admiral Kempt testified at trial you could

never undo a record.

Under the circumstances, 5 U.S.C. §552a(e)(7) appears to

have been directly violated. There is no suggestion by the Navy

that the exceptions of this provision apply. The action

unquestionably has had an adverse effect on Captain Banks, and

it can hardly be denied that the violation was intentional or

willful. But the latter facts were never considered in a trial in

view of the lower court’s preemptory dismissal of Plaintiff's

Privacy Act Claim. This subsidiary issue flows from the primary

First Amendment issue involved and is a significant issue

warranting this Court’s review.

D. The wrongful removal of Banks from his

commanding officer position without due process

and for the reason thet he exercised First

Amendment rights supports his claim for back pay

of which the district court had jurisdiction pursuant

to the Little Tucker Act.

The Federal Circuit held that the triai court properly

dismissed Captain Banks’ Little Tucker Act Claim because

Banks failed to state a claim under the Little Tucker Act.

Banks did not demonstrate a substantive right to payment by the

United States separate from 28 U.S.C. §1346(a)(2). This ruling

ignores the most important issue in this case. Captain Banks

was removed from his position as commanding officer of VFA-

303 for exercising his First Amendment right by writing a letter

to Congressmen concerning an issue of possible waste and with

which he was greatly concerned ~— the denial of new FA/1&

aircraft to his reservists unit. This ruling is contra to O’Hanlon

v. United States, 11 Ct.Cl. 192, 198 (1986) wherein that

Plaintiff, like Banks, was transferred from a pay to a non-pay

status in the Selected Reserve and the Claims Court’s

jurisdiction to consider the legality of this action was recognized.

Q’Hanlon held a “fiction” is recognized whereby an individual

lawfully appointed to a federal position whose removal (or

transfer) from that position contravened pertinent statutes or

regulations is deemed to have never been removed (or

transferred) from his position. United States v. Wickersham,

201 U.S. 390 (1906). Id. at 198.

Accordingly, in view of O’Hanlon, the Federal Circuit was

in error to uphold the district court’s dismissal of the Little

Tucker Act claim.

Further, a careful reading of the case cited in the court

below, United States v. Testan, 424 U.S. 392 (1976) on page 402

reveals that this Supreme Court specifically distinguished the

situation in the case at hand involving a removal from the

situation in Testan which involved a promotion. Testan applied

only to promotions, not to removals in this case. Therefore

Testan is not controlling.

In this case there is no reason to believe that Captain

Banks would not have attended drills and otherwise performed

his duties as Commanding Officer of VFA-303 if he had not

been removed from his position in pay status for having

exercised his First Amendment right to write letters to

Congressmen concerning an issue with which he was greatly

concerned. Banks in fact performed drills wihtout pay. Both

the district court below and the panel hearing this case on appeal

took the position that Banks had to drill to be entitled ot relief

under the Little Tucker Act. Banks did in fact drill without pay

in a voluntary training unit after being fired for writing Congress

and did the drilis he would have doen in a pay status as

Commanding Officer. Therefore, he performed the drills and he

should have been paid for his work.

00. lich Ns tad a dj AeA: jis apticd tl se

Under these circumstances his entitlement to pay for active

duty for training was authorized by 37 U.S.C. § 204(a)(2) and

his drill pay was authorized by 37 U.S.C. § 206. These pays for

Captain Banks, in terms of the above language of Testan, are

emoluments of his position to which he is entitled. These are

specific statutes which authorize the pay that Captain Banks

would have received except for his wrongful removal and for

exercising his First Amendment Rights.

This is an issue of first impression requiring review by this

Court. This is not a case where the claimant refused or failed

to perform acts for which he is requesting payment. This is a

case where the reservist was prevented from performing his

duties by the wrongful act of the Navy. O’Hanlon supports

Banks’ back pay claim under these circumstances.

Vv. CONCLUSION

The Federal Circuit summarily rubber-stamped the trial

court decision supporting the position presented by the Navy in

this case without any thorough, reasoned consideration of the

application of broad First Amendment constitutional principles

to Captain Banks’ writing of a letter concerning military waste

to members of Congress, and the Navy’s subsequent punishment

of him for the letter. The opinion does not offer a constitutional

analysis of Article 1149 of Navy Regulations on its face or as

applied to an off duty reservist.

Nor does it consider the whistleblower content of Banks’

letter and the special protection afforded military whistleblowers

under 10 U.S.C. $1034. This case presents these novel issues for

review by this Court. They are special and important issues of

first impression which warrant review. For these reasons the

writ in this case should be granted.

Respectfully Submitted by,

Penrose Lucas Albright,

Attorney for Petitioner,

Richard A. banks

xe.

INDEX TO APPENDIX A

A. Order dated July 29, 1988, denying Defendant’s

Motion to Dismiss, or in the Alternative for

Summary Judgment, except for granting

Defendant’s Motion to Dismiss Plaintiffs Privacy

ere eee rarer. a eee a eee A-1

B. Order dated September 2, 1988, denying

Plaintiffs Motion to Reconsideration and

Defendant’s Partial Cross-Motion for

6 os os gn ew ee Bk ee os A-3

c. Order dated October 27, 1988, granting

Defendant’s Motion to Dismiss Plaintiff's

Complaint Seeking Damages Under the Little

ES is Gs ot 6 4k wey a-ha a aee a A-5

D. Order dated February 1, 1989, Granting

Defendant’s Motion to Dismiss and Dismissing

Plaintiffs Complaint with Prejudice, and

accompanying Memorandum of Opinion. ..... A-7

E. Order dated March 2, 1989, denying Plaintiff's

Motion for a New Trial, Amendment of the

Findings of Fact and Conclusions of Law, and

Amendments to the Complaint. ........... A-25

Dk tt lh a

A-1

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

RICHARD A. BANKS, ) Civil Action No.

) 86-0923-A

Plaintiff, ’ Filed July 29, 1988

)

v. )

)

JOHN LEHMAN, Secretary )

of the Navy, )

)

Defendant. )

)

ORDER

For reasons stated in open court, it is accordingly

ORDERED:

(1) that the defendant Secretary of the Navy’s Motion

to Dismiss, or in the Alternative for Summary Judgment is

DENIED, except as to defendant’s Motion to Dismiss Plaintiff's

Privacy Act Claim which is GRANTED.

A-2

(2) that the Clerk shall forward copies of this Order

to all counsel of record.

July 29, 1988

Alexandria, Virginia

United States District Judge

er ee ee

ea ie Aca eta ar il it detensd SR i MG An OREN Nicht rt

AN a OL Milt SUR ahah Ma A Dive aac Sinn at

A-3

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

RICHARD A. BANKS, ) Civil Action No.

) 86-0923-A

)

Plaintiff, ) Received

) September 9, 1988

v. )

)

WILLIAM L. BALL, III, )

Secretary of the Navy, )

)

Defendant. )

)

RDER

Upon consideration of the plaintiffs Motion for

Reconsideration and the defendant’s Partial Cross-Motion for

Reconsideration, and after reviewing the briefs, it is accordingly

ORDERED:

(1) that the plaintiff's Motion for Reconsideration is

DENIED;

(2) that the defendant’s Partial Cross-Motion for

Reconsideration is DENIED;.

A-4

(3) that the Clerk shall forward copies of this Order

to all counsel of record.

September 2, 1988

Alexandria, Virginia

United States District Judge

A-5

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

RICHARD A. BANKS, ) Civil Action No.

) 86-0923-A

)

Plaintiff, ) Received

) November 3, 1988

v. )

)

WILLIAM L. BALL, III, )

Secretary of the Navy, in his )

official capacity, )

)

Defendant. )

)

ORDER

Upon consideration of the Defendant, Secretary of the

Navy’s Motion to Dismiss Plaintiff's Tucker Act Claim, and

after reviewing the pleadings, authorities, and arguments of

counsel, and the court being of the opinion that the court lacks

jurisdiction in accordance with United States v. Testan, 424 U.S.

392, 96 S. Ct. 948, 47 L.Ed 114 (1976) and Adair v. United

States, 648 F.2d 1318 (Ct. Cl. 1981), it is accordingly

ORDERED:

A-6

(1) that Defendant, Secretary of the Navy’s, Motion

to Dismiss Piaintiff's Complaint Seeking Damages Under the

Little Tucker Act, 28 U.S.C. § 1346(a)(2), is GRANTED on the

grounds of lack of jurisdiction;

(2) that the Clerk shall forward copies of this Order

to all counsel of record.

October 27, 1988

Alexandria, Virginia

United States District Judge

A-7

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

RICHARD A. BANKS, ) Civil Action No.

) 86-0923-A

)

Plaintiff, )

) Filed

Vv. ) February 1, 1989

)

WILLIAM L. BALL, III, )

Secretary of the Navy, )

Defendant. )

)

; )

ORDER

In accordance with the accompanying Memorandum

Opinion, it is accordingly ORDERED:

meron =a ee oe ee

(1) that the defendant’s Motion to Dismiss is

GRANTED. The plaintiffs Complaint is DISMISSED with

prejudice.

phe tS pn haar

A-8

(2) that the Clerk shall forward copies of this Order

to all counsel of record.

February 1, 1989

Alexandria, Virginia

United States District Judge

A-9

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

RICHARD A. BANKS, ) Civil Action No.

) 86-0923-A

)

Plaintiff, )

) Filed

v. ) February 1, 1989

)

WILLIAM L. BALL, III, )

Secretary of the Navy, )

| )

)

Defendant. )

)

MEMORAN PINION

This matter is before the court on the plaintiff's

Complaint seeking a declaratory judgment that Article 1149 of

Navy Regulations be declared unconstitutional in violation of the

First Amendment and declared unconstitutional’ in violation of

the First Amendment and be declared not applicable to the

plaintiff, Richard A. Banks (”Banks”) as a Naval reservist.’

;

Shdpehe.2 bs dies Necemaaed nase ee

| This case was transferred on August 1, 1986 from the United

States District Court for the District of Columbia to the United

States District Court for the Eastern District of Virginia.

A-10

Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure

defendant moves for dismissal of plaintiff's action on the grounds

that — the facts and the law plaintiff has skown no right to

relief.“ For the reasons set forth below, the defendant’s Motion

is granted.

The court adopts the party’s Stipulation of Uncontested

Facts and in addition finds the other relevant facts to be as

follows:

Plaintiff, Richard A. Banks, (”Banks”) served on active

duty as a Naval aviator, commencing in December, 1966 and

continuing until December, 1971. Following his tour of

extended active duty, plaintiff continued to serve as a Naval

aviator in the U.S. Naval Reserve. Plaintiffs Naval record

includes 126 missions of combat flying during the Vietnam War.

(Plaintiffs Proposed Findings of Fact 1).

The defendant, William L. Bail, III, is the Secretary of

the Navy and is being sued in his official capacity.2 However,

during all periods material to this case, the Secretary of the

Navy was John F. Lehman (”Lehman”). (Lehman Dep. at 6).

2, On July 29, 1988 this court dismissed plaintiff's claim under

the Privacy Act 5 U.S.C. § 552a(e)(7). On October 27, 1988

this court dismissed the plaintiff's claim under the Little Tucker

Act 28 U.S.C. § 1346(a)(2).

3. The action as originally filed also named the Secretary in his

individual capacity. Plaintiffs Complaint was subsequently

amended naming the Secretary as a party only in his official

capacity.

A-11

Effective July 25, 1983 Banks assumed command of

VFA-303. His assignment was approved by the Commander of

the Naval Reserve Forces, Rear-Admiral T. F. Rinard, United

States Naval Reserve (”Rinard”). (Stip. of Fact ¥ 3, Plaintiff's

Exh. 1, Testimony of Rinard).

VFA-303 was designated as the first Naval Reserve

Aviation Squadron to. receive the new F/A-18 Hornet

(”"Hornet”) aircraft. (Lehman Dep. at 18, Testimony of Banks).

The transition to allow Naval Reserve Squadrons to use

new aircraft like the Hornet was a part of the Navy’s

"Horizontal Integration, [program] which was to modify the

reserve forces with the latest equipment so they could both

mobilize immediately and bear the peacetime burden on a

day-to-day basis with active forces.” (Lehman Dep. at 9,

Testimony of Banks, Testimony of Rinard).

Banks was initially informed that the new Hornet aircraft

would be delivered in April, 1984. The April delivery date was

subsequently changed to June of 1984. (Testimony of Banks).

The delay in delivery was occasioned by the oppos: on

of a Senate Arms Service Committee staffer, Carl Smith, to any

Naval Reserve squadrons receiving Hornets prior to the active

duty units. (Lehman Dep. at 20-21).

As of December, 1983 Banks had heard rumors that the

planned delivery of the Hornets to the reserve units was to be

canceled. (Defendant’s Exh. K).

In late December, 1988 Banks discussed his concern

about the rumors with his immediate superior, Captain Thomas

B. Latendresse, U.S.N. Commander, Carrier Air Wing Reserve

THIRTY. Banks discussed the possibility of sending letters

A-12

about his concern to members of Congress. Latendresse told

him to give it a try, but he also told him to ”be careful.”

(Testimony of Banks).

In December, 1983 Banks forwarded an official letter to

the Secretary of the Navy via his chain of command expressing

his concerns. Banks’ letter was returned to him by Rear

Admiral Rinard for the inclusion of additional addresses. The

letter was corrected and sent out again. Banks never received

a reply from the Secretary. (Defendant’s Exh. A at 3,

Testimony of Rinard).

In late December, 1983 or early January, 1984 Banks

called Rinard regarding the delays in receiving the Hornets.

Rinard assured Banks that his squadron’s training schedule, to

prepare for receipt of the aircraft, was still on track. However,

Rinard informed Banks that there were some uncertainties as to

when Banks’ squadron would be receiving the new Hornets.

Banks discussed the idea of writing members of Congress with

Rinard. Rinard advised Banks that he could write as a private

citizen or use a procedure through the Navy chain of command.

Rinard counselled Banks against writing in his official capacity.

(Testimony of Rinard, Defendant’s Exh. A at 4).

Commander Banks drafted the letters dated January 6,

1984 to members of Congress. Certain VFA-303 military

personnel prepared one copy for each of the twelve to fifteen

members of the House of Representatives and Senate Armed

Services Committees. Commander Banks authorized one of his

subordinate officers in the squadron to sign his name to the

letters and to mail them. Although Commander Banks did not

personally sign the letters, he does not deny and assumes full

responsibility for their issuance. (Testimony of Banks; Stip. of

Fact 4’s 4, 5; Defendant’s Exh. A at 5).

A-13

The letters, addressed to the members of Congress, were

typed on official Navy letterhead. The letter began: ”As the

Commanding Officer of Strike Fighter Squadron THREE ZERO

THREE I would like to draw your attention to the possibility

that the current planned transition of this command to the

F/A-18 aircraft is in jeopardy.” Through the letters Banks was

attempting to point out what he saw as a problem and obtain

support from Congress. In addition, Banks included his home

and office telephone numbers, volunteered his presence in

Washington if the congressmen deemed it necessary, and signed

the letter ”R. A. Banks, Commanding Officer.” (Defendant’s

Exhibit I).

Banks also urged other members of his Squadron to write

letters to Congressmen. (Defendant’s Exh. A at 5, Defendants

Exh. K).

One of the letters had been addressed to Congressman

William Whitehurst of Virginia who subsequent to receiving the

letter contacted the Secretary of the Navy. A Captain Jerry

Palmer contacted Banks and informed him that his letter had

"created a hornet’s nest and the Secretary of the Navy is

pissed.” (Testimony of Banks, Defendant’s Exh. I).

Copies of the letters were received by Rear Admiral

Rinard and Vice Admiral Kempf (”Kempf”). (Testimony of

Rinard, Testimony of Kempf).

Rinard determined that Banks had violated Navy

regulations by sending his letter to the congressmen and ignored

the advice that he had given him in late December, 1983 or

early January, 1984 to not send the letters in his official

Capacity. (Testimony of Rinard; Defendant’s Exh’s. M, 0).

A-14

Rinard had the authority to direct the reassignment of an

officer in a command billet. (Stip. of Fact ¥ 3, Testimony of

Rinard). On January 24, 1984 Rinard called Banks and advised

him that because of the letter writing he was transferred to a

voluntary (non-paying) training unit in Alameda, California.

Rinard felt that the letters had created a controversy but it did

not warrant relieving Banks of command. (Testimony of Banks,

Plaintiff's Exh. 4, Defendant’s Exh. A at 6).

Rinard’s decision to reassign Banks from Squadron

Commander of VFA-303 to a voluntary training unit was an

administrative decision and not punitive action. Rinard was

disappointed with Banks because he had acted contrary to his

instructions and felt that Banks would not follow other orders.

(Testimony of Rinard, Defendant’s Exh. 0).

Prior to reassigning Banks, Rinard discussed his

proposed action with Admiral Kempf. Admiral Kempf did not

direct the action that Rinard should take but discussed the

proposed reassignment with Secretary Lehman. Lehman had no

objection to the proposed action. (Testimony of Rinard,

Lehman Dep. at 32- 34).

In March, 1984 Rinard initiated and executed an adverse

fitness report on Banks. He stated in the comment section that

he was transferring Banks due to his violation of Article 1149 of

the Navy Regulations. Rinard assigned Banks low grades in

judgment, organizational support, and desirability for command.

(Defendant’s Exh. M, Testimony of Rinard).

Secretary Lehman did not direct the preparation of the

fitness report on Banks. (Testimony of Lehman, Lehman Dep.

at 31-32, Testimony of Rinard).

A-15

Secretary Lehman did not give his approval to Banks’

letter. (Lehman Dep. at 47).

On January 10, 1986 the adverse fitness report was

removed from plaintiffs records. (Defendant’s Exh. Z). The

Naval Investigative Service has conducted an investigation of the

entire letter writing incident. (Plaintiffs Exh. 18).

IT.

This case presents itself as a Motion to Dismiss Pursuant

to Rule 41(b) of the Federal Rules of Civil Procedure.*

Rule 41(b) expressly authorizes a motion for dismissal by

a defendant after the plaintiff has completed the presentation of

his evidence on the grounds that upon the facts and the law, the

plaintiff has shown no right to relief. Rule 41(b) states in

pertinent part:

After the plaintiff, in an action

tried by the court without a jury,

has completed the presentation of

evidence, the defendant,

without waiving the right to offer evidence in the event the

motion is not granted, may move for a dismissal on the ground

that upon the facts and the law the plaintiff has shown no right

to relief. The court as trier of the facts may then determine

The defendant made his motion at the conclusion of the

plaintiff's case. However, it should be noted that by stipulation

of counsel as to order of proof, the plaintiff testified first, the

defendant put on two of his witnesses, the plaintiff rested and

then the defendant’s motion was made.

A-16

them and render judgment against the plaintiff or may decline

to render any judgment until the close of all evidence.

In deciding a motion for involuntary dismissal under

Rule 41(b), the court is free to weigh the evidence and pass on

the credibility of witnesses, which it may not do when deciding

whether or not to grant a motion for a directed verdict in a jury

case. Rule 41(b) requires a court rendering judgment on the

merits against the plaintiff to make findings as provided in Rule

52(a) of the Federal Rules of Civil Procedure.

The Fourth Circuit has held that Rule 41(b):

requires the judge, as the trier of

fact, to weigh and consider all of

the evidence, and he may sustain

the motion even though the

plaintiff may have presented a

prima facie case.

Holmes v. Bevilacqua, 794 F.2d 142, 147 (4th Cir. 1986).

The court’s review of this case is governed by the

arbitrary and capricious standard. Under this standard in order

to uphold the Secretary’s action, the court must find that his

action was not ”arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law”. See 5 U.S.C. §

706(2)(A) (1977). The Supreme Court in Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814,

824 (1971), clarified the court’s review of agency decisions

stating:

Although this inquiry into the

facts is to be searching and

careful, the ultimate standard of

review is a narrow one. The

‘

A-17

court is not empowered to

substitute its Judgment for that of

the agency.

The D.C. Circuit in Trans-Pacific Freight v. Federal

Maritime Com’n, 650 F.2d 1235, 1251, (D.C. Cir. 1980), cert.

denied, 451 U.S. 984, 101 S. Ct. 2316 (1981), provided

additional guidance in reviewing agency decisions stating that the

reviewing court, after satisfying itself that the agency acted

within its statutory authority and that the action was

accompanied by appropriate procedural safeguards and sufficient

evidence, "must inquire whether the rationale of the agency is

both discernable and defensible.”

With these principles in mind, the court turns to a

discussion of the subject regulations.

Article 1149 of the United States Navy Regulations

(1973) is as follows:

1149. Communications to the Congress.

No person in the naval service shall, in his

official capacity, apply to the Congress or to

either house thereof, or to any committee

thereof, for legislation or for appropriations or

for Congressional action of any kind except with

the consent and knowledge of the Secretary of

the Navy. Nor shall any such person, in his

official capacity, respond to any request for

information from Congress, or from either house

thereof, or from any committee of Congress,

A-18

except through, or as authorized by, the

Secretary of the Navy, or as provided by law.

Article 1148 of the United States Navy Regulations

(1973) which is titled "1148. Dealings With Members of

Congress” is exactly the same as 10 U.S.C. § 1034 (1983) both

of which state:

No person may restrict any member of an armed

force in communicating with a member of

Congress, unless the communication is unlawful

or violates a regulation necessary to the security

of the United States.

The plaintiff, Banks, maintains that Article 1149 does not

apply to him as a Naval Reservist, and therefore his removal as

commanding officer of WFA-303, was arbitrary, capricious,

whimsical and without legal justification. Banks contends that

Article 1149 is unconstitutionally over-broad as it does not apply

to Naval Reservists, and that it violates his First Amendment

rights under the United States Constitution.

The Secretary insists that the plaintiff was a person

within the department of the Navy, and a person within the

meaning of Article 1149. Accordingly, the Secretary contends

that Banks was required to follow Navy Regulations, that he was

responsible for his acts in communicating with Congress, and in

so doing violated Article 1149. The Secretary further contends

that Article 1149 does not conflict with the First Amendment.

According to Secretary Lehman the rational of Article

1149 is that it is necessary for national security because "there

must be an orderly process for policy, debate and disagreement

within the executive branch”. However, once a decision is made

then the official voice as opposed to the private voice should be

Satie

A-19

the one dealing with the Congress. Secretary Lehman is of the

opinion that a communication on official stationery without

authorization violates good order and discipline in the Navy.

(Dep. of Lehman at 48-49, Testimony of Rinard).°

The Regulation also effectuates the military’s position of

neutrality in politics which reflects "a 200-year tradition of

keeping the military separate from political affairs, a tradition

that . . . is a constitutional corollary to the express provision for

civilian control of the military in Art. II, § 2, of the

Constitution.” Greer v, Spock, 424 U.S. 828, 841, 96 S. Ct.

1211, 1219 (1976) (BURGER, C.J., concurring). Article 1149

serves the national security by contributing to the effectiveness

of civilian control over the military.

Commander Banks had several alternatives open to him

in order to express his views. Banks could have sent a letter

through the chain of command and/or he could communicate in

a private capacity with members of Congress without the use of

official Navy stationery.

In the case at bar, Banks used official Navy letterhead,

wrote his letter as the Commander of VFA-303, and signed the

letter in his official capacity as Commander. It is quite clear

that if Congressmen were to receive such letters from various

>. There is one credibility call that the court must make in this

case, although the court dces not feel it is critical to the

decision. Admiral Rinard testified that in December, 1983 or

early January, 1984 he advised Banks against writing a letter to

members of Congress in his official capacity. Commander

Banks denies that any such advice was given to him. On the

credibility call, the court finds Rinard to be more credible on

this issue than commander Banks.

A-20

——_mili rsonnel it would be confusing as to the Navy’s official

ailitary per s te

licy.

policy rege 7

As to the First Amendment concerns raised by the

plaintiff, the court is aware that the First Amendment’s

guarantec of free speech is "not absolute, and that regulation as

to time, place and manner of exercise is proper when reasonably

related to a valid public interest.” Kannisto v, City and County

of San Francisco, 541 F.2d 841, 842 (9th Cir. 1976), cert.

denied, 430 U.S. 931 (1977) (citing Cox v. Louisiana, 379 U.S.

536, 558, 85 S. Ct. 453, 466 (1965)}. See also Breard v.

Alexandra, 341 U.S. 622, 642, 71 S. Ct. 920, 932 (1951).

In Pickering v. Bd. of Education, 391 U.S. 563, 8S S. Ct.

1731 (1968), the Supreme Court established a balancing of

interests test to determine whether the actions of a governmental

employer violate the First Amendment. The Court stated that:

[t]he problem in any case is to arrive at a balance

between the interests of the .. . [employee], as

a citizen, in commenting upon matters of public

concern and the interest of the . . . [government],

as an employer, in promoting the efficiency of

the public services it performs through its

employees.

Id. at 568, 88 S. Ct. at 1734. The Supreme Court in Connick v.

Meyers, 461 U.S. 138, 103 S. Ct. 1684 (1983) has recognized the

difficulty in balancing the public employee’s and the government

employer’s interests. This court also is aware-of the opposing

interest problem raised by cases such as Commander Banks’.

In distinguishing governmental employers from private

employers several cases have held that police forces are para-

nt at Seibel

A-21 en

military units, and as such, the departments’ interest in

maintaining discipline, esprit de corps and uniformity are to be

given great weight. See Kannisto, 541 F.2d at 843, Jurgensen v.

Fairfax County, Va., 745 F.2d 868 (4th Cir. 1984). The court

recognizes that the several branches of the military naturally

maintain these same interests.

The Supreme Court in Goldman v, Weinberger, 475 U.S.

503, 106 S.Ct. 1310 (1986), was faced with an Orthodox Jew and

ordained rabbi Air Force officer who was ordered not to wear

a yarmulke while on duty and in uniform pursuant to an Air

Force regulation. The officer argued that the Air Force

regulation infringed on his First Amendment freedom to exercise

his religious beliefs. In upholding the regulation, the Supreme

Court stated:

Our review of military regulations challenged on

First Amendment grounds is far more deferential

than constitutional review of similar laws or

regulations designed for civilian society. The

military need not encourage debate or tolerate

protest to the extent that such tolerance is

required of the civilian state by the First

Amendment; to accomplish its mission the

military must foster instinctive obedience, unity,

commitment, and esprit de corps. See, e.g.,

Chappell v. Wallace, supra, 462 U.S. at 300, 103

S. Ct., at 2365; Greer v. Spock, 424 U.S. 828,

843-844, 96 S. Ct. 1211, 1220, 47 L.Ed.2d 505

(1976) (POWELL, J., concurring); Parker _v.

Levy, supra, 417 U.S., at 744, 94S. Ct., at 2556.

The essence of military service "is the

subordination of the desires and interests of the

individual to the needs of the service.” Orloff v.

A-22

Willoughby, supra, 345 U.S., at 92, 73 S. Ct., at

539.

Id. at 507, 106 S. Ct. at 1313.

The Court in Goldman went on to point out that:

Not only are courts "ill-equipped to determine

the impact upon discipline that any particular

intrusion upon military authority might have,”

Chappell v. Wallace, supra, 462 U.S., at 305, 103

S. Ct., at 2368, quoting Warren, The Bill of

Rights and the Military, 37 N.Y.U.L.Rev. 181,

187 (1962), but the military authorities have been

charged by the Executive and Legislative

Branches with carrying out our Nation’s military

policy. ”Judicial deference . . . is at its apogee

when legislative action under the congressional

authority to raise and support armies and make

rules and regulations for their governance is

challenged.” Rostker v. Goldberg, 453 U.S. 57,

70, 101 S. Ct. 2646, 2655, 69 L.Ed.2d 478 (1981).

In Goldman the Jewish Air Force officer was faced with

the choice of not wearing a yarmulke and complying with Air

Force regulations or wearing the yarmulke and being in

violation. Unlike the case in Goldman Banks had other avenues

open to him to exercise his First Amendment rights. He could

have written a letter as a private citizen or circulated a letter

through the Navy chain of command.

Banks by writing letters on of*cial Navy letterhead and

in his official capacity violated Article 1149 of Navy regulations.

Obviously, writing to congressmen about the type of aircraft that

wns one

ee sr

A-23

will be used by reserve units is a matter of public concern.

However, balanced against that is the military’s interest in

uniformity, esprit de corps and discipline. Banks had other

avenues open to him to exercise his First Amendment rights

which he did not utilize. The court feels that the military’s

interest in uniformity, esprit de corps and efficiency of the Navy

outweigh the plaintiff's exercise of his First Amendment rights

in this case. The court finds Article 1149 to be a proper

regulation as to time, place and manner and reasonably related

to valid public interests. Accordingly, the court holds that the

regulations are valid and not a violation of the First

Amendment.

This case involves an actual controversy as to whether

the plaintiff's rights as a Naval Reservist, which are protected by

10 U.S.C. § 1034 and the First Amendment, were violated by

Article 1149 of Navy Regulations. The court has jurisdiction

pursuant to 28 U.S.C. § 2201 and 2202.

The court finds that the plaintiff was a person within the

department of the Navy, and a person within the meaning of

Article 1149. The court further finds that Commander Banks

was required to follow Navy Regulations, that he was

responsible for his acts in communicating with Congress, and in

so doing violated Article 1149 by communicating in his official

capacity.

Plaintiff's transfer was an administrative decision and not

a punitive one. It was in accordance with applicable Navy

Regulations dealing with Naval officers.

A-24

Article 1149 is a proper regulation as to time, place and

manner, reasonably related to valid public interests and does not

conflict with 10 U.S.C. 1034 or the First Amendment.

The action of the Secretary of the Navy was not

arbitrary, capricious, an abuse of discretion, or contrary to law.

The defendant’s Motion to Dismiss should be granted. An

appropriate Order shall issue.

Dated: February 1, 1989

Alexandria, Virginia

United States District Judge

So Deva ae~<

A-25

JIN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

RICHARD A. BANKS, ) Civil Action No. 86

) 0923-A

)

Plaintiff, )

)

Vv. ) Received

) March 7, 1989

WiLLIAM L. BALL, III, )

Secretary of the Navy, )

)

Defendant. )

)

ORDER

Upon consideration of Plaintiffs Motions for a New

Trial, Amendment of the Findings of Fact and Conclusions of

Law, and Amendments to the Complaint, and Defendant

Secretary of the Navy’s Opposition thereto, and it appearing to

the court there is no basis to grant plaintiff a new trial, or to

amend the findings of fact and conclusions of iaw, and that the

Motion to Amend the Complaint is untimely, it is accordingly

ORDERED:

A-26

(1) that the plaintiffs Motion for a New Trial,

Amendment of the Findings of Fact and Conclusions of Law,

and Amendments to the Complaint be, and the same hereby are,

DENIED.

(2) that the Clerk shall forward copies of this Order

to all counsel of record.

March 2, 1989

Alexandria, Virginia

United States District Judge

APPENDIX B

B-1

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

89-1485

RICHARD A BANKS,

Plaintiff-Appellant,

H. LAWRENCE GARRETT, III,

Secretary of the Navy,

Defendant-Appellee.

Roger J. Nichols, of Kadenacy, Mendelson & Schwaber,

Los Angeles, California, argued for plaintiff-appellant. With him

on the brief was Penrose Lucas Albright, of Arlington, Virginia.

CDR_ Richard Walsh, Office of the Judge Advocate

General, Department of the Navy, argued for defendant-

appellee. With him on the brief were Stuart M. Gerson,

Assistant Attorney General, David M. Cohen, Director, Thomas

W. Petersen, Assistant Director, and John S. Groat, of the Civil

Division, Department of Justice, Washington, D.C.

Appealed from: U.S. District Court for the

Eastern District of Virginia

Judge Cacheris

" ac nth iain

B-2

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

89-1485

RICHARD A BANKS,

Plaintiff-Appellant,

¥.

H. LAWRENCE GARRETT, III,

Secretary of the Navy,

Defendant-Appellee.

DECIDED: February 9, 1990

UNPUB. OPIN. ISSUED: February 9, 1990

PUBLISHED OPIN. ISSUED: April 20, 1990

Before NIES, MICHEL, Circuit Judge and BEER, District

Judge. MICHEL, Circuit Judge.

Captain Richard A. Banks (Banks), U.S. Navy Reserve,

appeals the judgment of the United States District Court for the

Eastern District of Virginia Civil No. 86-0923-A, based on

separate orders dismissing Appellant’s (1) Little Tucker Act

claim (Oct. 27 1988), (2) first amendment claim (Feb. 1, 1989),

and (3) Privacy Act claim (July 29, 1988), all the claims in his

complaint. Because we hold that Banks’ transfer to a nonpay

The Honorable Peter Beer, United States District Judge

for the Eastern District of Louisiana, sitting by designation. ~

all eB a AAI ARE LP Rm ee OO

B-3

Navy Reserve position pursuant to a Navy regulation was lawful,

his underlying claim for back pay due the incumbent of his

former position fails, and therefore we affirm.

BACKGROUND

Banks was appointed Commander of the Naval Reserve

VFA-303 squadron in July of 1983. His squadron was

designated the first Naval Reserve Aviation Squadron to receive

the new F/A-18 Hornet aircraft. Banks v. Garrett, Civil No.

86-0923-A, slip op. at 2 (E. D. Va. Feb. 1, 1989). By

December of 1983 Banks heard rumors that the scheduled

delivery of the Hornet was to be canceled. Id. at 3. That

month he wrote an official letter to the Secretary of the Navy,

via his chain of command, expressing his concerns. Id. at 3-4.

He also discussed the matter with the Commander of the Naval

Reserve Forces, Rear Admiral T.F. Rinard (Rinard), who

confirmed there were uncertainties as to. when the VFA-303

would be receiving the Hornets. Banks discussed with Rinard

the idea of Banks writing to members of Congress. Rinard

informed Banks that he could either write as a private citizen or

use a procedure whereby he could write in his official capacity

but only with prior approval of the Secretary of the Navy.

Rinard specifically counseled him against writing in his official

capacity. Id. at 4.

The district court found: Banks drafted a letter dated

January 6, 1984, to members of Congress. Military personnel of

the VFA-303 squadron prepared copies of the letter for

members of the House of Representatives and Senate Armed

Services committees. Banks authorized a subordinate officer in

the squadron to sign Banks’ name to the letters and to mail

them. Id, The letters were on official Navy letterhead and

stated, in part: “As the Commanding Officer of Strike Fighter

Squadron THREE ZERO THREE I would like to draw your

B-4

attention to the possibility that the current planned transition of

this command to the F/A-18 aircraft is in jeopardy.” Id, at 5. In

the letter Banks included his home and office phone numbers

and signed the letter as “R.A. Banks, Commanding Officer.”

Id. He also volunteered to visit members of Congress in

Washington if needed. Id.

Congressman William Whitehurst of Virginia received

one of the letters and notified the Secretary of the Navy.

Rinard learned of the letter writing, saw a copy of the text, and

determined the letter violated Article 1149 of the Navy

Regulations. Id. Article 1149 bars “any person in the naval

service”’ from communicating to Congress in his official capacity

without the consent of the Secretary of the Navy. Navy Regs.,

art. 1149 (1973).

In March of 1984, Rinard initiated an adverse fitness

report on Banks. He also issued orders transferring Banks to a

voluntary training unit in Alameda, California, due to violation

of Article 1149. Id, at 6. In January of 1986 the adverse fitness

report was removed from Banks’ records, id. at 7, but Banks

remained in the voluntary training unit that was a nonpaying

billet.

On January 22, 1986, Banks brought suit in district court

challenging his reassignment. Proceedings were stayed,

however, while Banks sought relief from the Board for

Correction of Naval Records. The Board denied Banks relief

and he then pursued his remedy in the district court. The

government filed a motion to dismiss the complaint and the

court heard argument on the motion. On July 29, 1988, the court

ordered dismissal of Banks’ Privacy Act claim. Three months

later the government renewed its motion to dismiss and on

October 27, 1988, the court ordered dismissal of Banks’ Little

Tucker Act claim. The first amendment claim was tried on

B-5

December 21, 1988. In-court testimony was given by Banks and

Rinard and deposition testimony by the former Secretary of the

Navy (Lehman) was offered into evidence. On February 1,

1989, the district court ordered the dismissal of the first

amendment claim. Judgment was entered and this appeal

followed.

ISSUE

Whether Banks’ violation of Navy Regulation 1149

supports transfer to a nonpay positicn without offending the first

amendment.

OPINION

Appellant asserts this court has jurisdiction under 28

U.S.C. §126'5(a) (2) (1982). We do have exclusive jurisdiction

over “‘an appeal from a final decision of a district court of the

United States . . . if the jurisdiction of that court was based, in

whole or in part, on [28 U. S. C.] section 1346 [with exceptions

not pertinent here, c.g., a tax claim].” Id. Section 1346(a) (2),

part of what is commonly known as the Little Tucker Act,

provides “‘district courts shall have original jurisdiction. .. of

[any nontort] civil action or claim against the United States, not

exceeding $10,000. . . .” Appellant asserted a nontort claim

against the United States not exceeding $10,000 and therefore

the District Court for the Eastern District of Virginia had

original subject matter jurisdiction. Consequently, we have

jurisdiction under 28 U.S.C. § 1295(a) (2) to hear this appeal.

1. The Little Tucker Act Claim

Banks has stated a claim under the Little Tucker Act

sufficient to avoid dismissal only if he has demonstrated a

substantive right, independent of the Act, to payment of money

B-6

by the United States because the Act itself does not create a

cause of action but merely waives sovereign immunity (and

grants jurisdiction to the district courts or the Claims Court,

depending on the amount of damages). See United States v.

Testan, 424 U.S. 392, 398 (1976).

Appellant claims he is due back pay under 37 U.S.C. §

204(a) and 206(a) (1982). Neither section, however, establishes

his right to payment. Section 204(a)(1) provides for payment to

“a member of a uniformed service who is on active duty.”

Regulations define “‘active duty’’ as “[flull-time duty in a U.S.

Military Service.” 32 C.F.R. § 102.3 (1989). Banks was not on

full-time duty following his transfer, the only time period at issue

in this appeal. Section 204(a)(2) provides for payment to “‘a

member of a uniformed service [not a Reserve of the Army or

Air Force] who is participating in full-time training . . . or other

full-time duty. .. .”” Banks did not so participate and therefore

is not entitled to payment under this subsection either. Cf.

Ayala v. United States, 16 Cl. Ct. 1, 4 (1988) (“[A] reservist is

not entitled to compensation . . . unless he is ordered to perform

and actually performs the work. Compensation is not based on

status as a reservist.” (citing United States v. Wickersham, 201

U.S. 390 (1906))). .

Nor does the remaining statutory provision Banks relies

upon require the payment of money to Banks. Section 206(a)

provides:

Under regulations prescribed by the Secretary. .. a

member of a reserve component of a uniformed service who is

not entitled to basic pay under section 204 of this title, is entitled

to compensation. . . for each regular period of instruction, or

period of

B-7

appropriate duty, at which he is engaged for at least two

hours....

This provision allows for payments to reservists for inactive duty

training, as prescribed by regulation. Banks, however, was

transferred to a “voluntary training unit.” Banks, slip op. at 6.

Defense Department regulations provide that a voluntary

training unit is one “formed by volunteers to provide [Reserve

Component] training in a nonpay status for [Individual Ready

Reserve] and active status Standby Reservists. . . participating

in such units for retirement points.” 32 C.F.R. § 102.3 (1989)

(emphasis added). After Banks was transferred to the Voluntary

Training Unit he performed no reserve unit drills for pay, by

application of this regulation. Thus he was not entitled to

payment following his transfer.

Upon analysis, Appellant has not demonstrated a

substantive right to payment by the United States separate from

28 U.S. C. § 1346(a) (2); therefore, the district court properly

dismissed his Little Tucker Act claim. Although the court stated

the dismissal was“‘for lack of jurisdiction” we think it clear that

the district court concluded Banks failed to state a claim upon

which relief could be granted. See Fed. R. Civ. P. 12 (b) (6).

Thus, the court’ s dismissal was effectively an adjudication on

the merits.

B-8

II. The First Amendment and Privacy Act Claims

Appellant also alleged violations of his first amendment!

and Privacy Act rights that, he asserted, entitle him to

reinstatement to his former, paying position. The district court

dismissed these claims as well, in orders dated, respectively,

February 1, 1989, and July 29, 1988. Our review of Appellant’s

first amendment and Privacy Act claims is required under Hohri

v. United States, 482 U.S. 64 (1987), in which the Supreme

Court stated that a “mixed case presenting both a nontax Little

Tucker Act claim and [a claim not within the Federal Circuit’s

exclusive jurisdiction], may be appealed only to the Federal

Circuit.” Id, at 75-76. Clearly, that means that our court is also

_to decide the non-Tucker Act claims in “mixed” cases.

Accordingly, when a mixed case is presented and the nontax

Little Tucker Act claim is dismissed, the other claims may be

reviewed provided the Little Tucker Act claim was

1 In 1988 Congress amended 10 U.S. C. § 1034, providing, in

part:

“No person may restrict a member of the armed forces in

communicating with a Member of Congress or an Inspector

’ General [provided the communication is not unlawful].” It

prohibits the taking of retaliatory personnel action for such

communication. The statute is not retroactive; it only applies to

personnel action on or after the date of enactment, September

29, 1988. Thus the new provision is not applicable to this

appeal, and we intimate no disposition whether Article 1149 is

invalid under section 1034, as amended. That issue is for

another day.

B-9

nonfrivolous.* See Ralston Steel Corp. v. United States, 340

F.2d 663, 667 (Ct. Cl.), cert. denied, 381 U.S. 950 (1965)

(Jurisdiction is appropriate if a claim “is not frivolous but

arguable.”). Banks’ Little Tucker Act claim was nonfrivolous.

Although not generally subject to judicial review, military

transfers that violate the first amendment are reviewable by this

court. See Woodward v. United States, 871 F.2d 1068, 1072

(Fed. Cir. 1989) (“([E]mployment actions claimed to be based

on constitutionally infirm grounds are. . . subject to judicial

review.”); See also Brown v. Glines, 444 U.S. 348, 351-53

(1980) (Removal of Air Force Captain raised first amendment

claim subject to review).

To prevail on appeal from dismissal of both his first

amendment and Privacy Act claims, Appellant must show his

first amendment rights have been violated. To do so, he could

demonstrate, from the record evidence, that he did not violate

2 This court has previously been presented with similar appeals

involving mixed claims. In one, we dismissed all of the claims

for lack of jurisdiction. See Guercio v. Brody, 884 F.2d 1372,

1374 (Fed. Cir. 1989) (“[T]he district court did not have

jurisdiction over a claim satisfying, the requirements of the Little

Tucker Act, and for that reason we are without jurisdiction to

hear this appeal.””) In Guercio, we must presume, the Little

Tucker Act claim was seen as frivolous, thus making dismissal

for lack v! jurisdiction proper. Here, by contrast, neither the

district court nor this court viewed the Little Tucker Act claim

as frivolous. Banks cited statutes that at least appeared to

mandate payment of money to reservists performing drills.

Thus, this case compares, not with Guercio, but with Hohri v.

United States, 847 F.2d 779 (Fed. Cir. 1988) (on remand),

where our court took jurisdiction and found the Little Tucker

Act claim dismissible but, inferentially, nonfrivolous.

B-10

Article 1149 of the Navy Regulations which states: “‘No person

in the naval service shall, in his official capacity, apply to the

Congress or to either house thereof, or to any committee

thereof, for. . . Congressional action of any kind except with the

consent and knowledge of the Secretary of the Navy.” Navy

Regs., ar?. 1149 (1973). Thus, Banks would need to show either

he acted not in his official capacity but as a private citizen, or he

was not a “person in the naval service.”

That Captain Banks did act in his official capacity,

however, is patently clear. The trial court found that Appellant

“used official Navy letterhead, wrote his letter as the

Commander [of the squadron], and signed the letter in his

official capacity as Commander.” Id, at 11; See Joint App.

121-22, Banks v. Garrett, No. 89-1485 (Fed. Cir. filed Jan. 4,

1990) (letter). It therefore found he acted in his official

capacity. Banks, slip op. at 15. We cannot disagree. Certainly,

such a finding is not clearly erroneous. As to Appellant not

being a “person in the naval service,” Banks has shown no

authority for construing that phrase so as to exclude reserve

officers in reserve units.

Because Banks did act in his official Navy capacity, he

must demonstrate that the Regulation is unconstitutional by

establishing that his action was protected by the first amendment

and that his first amendment speech interests outweigh the

government’s countervailing interests in uniformity, esprit de

corps, and discipline. See Connick v. Myers, 461 U.S. 138, 142

(1983). Banks, however, makes little showing as to his

particular interests under the circumstances of this case.

Therefore, Banks effectively asks us to hold Article 1149 itself

unconstitutional as violative of the first amendment. This we

decline to do as the provision clearly passes constitutional

muster.

B-11

As the Supreme Court stated,“[R]leview of military

regulations challenged on First Amendment grounds is far more

deferential than constitutional review of similar laws or

regulations [because] to accomplish its mission the military must

foster instinctive obedience, unity, commitment, and sprit de

corps.” Goldman v, Weinberger, 475 U.S. 503, 507 (1986).

Article 1149 restricts communicating with Congress in an

official capacity, absent the consent of the Secretary of the

Navy.” The government's interest in naval esprit de corps and

discipline, as well as a uniform voice for the Department of the

Navy, is an interest important to national security that outweighs

Banks’ private interest in communicating, directly and without

approval, with Congress in his official capacity. Cf. Connick,

461 U.S. at 142; Mings v. Department of Justice, 813 F.2d 384,

389 (Fed. Cir. 1987).

Moreover, Banks has an adequate alternative avenue to

communicate with Congress. A corollary provision, Article

1148, read in conjunction with Article 1149, unconditionally

permits an officer to write Congress in his private capacity. It

provides:. “‘No person may restrict any member of an armed

force in communicating with a member of Congress, unless the

communication is unlawful or violates a regulation necessary to

the security of the United States.” Navy Regs., art. 1148 (1973).

Article 1149 is “ta regulation necessary to the security of the

United States.”

We therefore conclude the trial court properly balanced

the first amendment interest of Banks, as a public employee,

against the government employer’s interest, and correctly held

3 That Banks wrote without the Secretary’s consent is

undisputed.

B-12

that the Naval regulations “are valid and not a violation of the

First Amendment.” Banks, slip op. at 15. Thus, the first

amendment claim and the wholly derivative Privacy Act claim

were properly dismissed.* See Boyd v, Secretary of Navy, 709

F.2d 684, 687 (11th Cir. 1983), cert. denied, 464 U.S. 1043

(1984) (The Privacy Act, 5 U.S.C. § 552a(e)(7), is not violated

unless a document “‘implicate[s] an individual’s first amendment

rights.”).

We have also considered Appellant’s additional

arguments relating to the first amendment and Privacy Act

claims and determine that they neither have merit nor merit

discussion. Therefore, the judgment of the district court is

AFFIRMED.

* Banks argues that the Navy, because of its investigation of his

violation of Article 1149 and related matters, kept a file on him

that violates the Privacy Act.

APPENDIX C

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C-i

INDEX TO APPENDIX C

CONSTITUTIONAL. PROVISIONS

United States Constitution, Amendment! ........... C-1

STATUTORY PROVISIONS

5 United States Code Section 552 ................ C-1

5 United States Code Section 2105 ............... C-15

10 United States Code Section 1034 .............. C-17

REGULATIONS

Navy Regulation Section 1148 .................. C-26

Navy Regulation Section 1149 .................. C-26

C-1

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED IN THE CASE

Constitutional Provisions Involved - Amendment I to the

United States Constitution provides:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.”

Statutory Provisions Involved:

1. 5 United States Code Section 552 provides:

(a) Each agency shall make available to the public

information as follows:

(1) Each agency shall separately state and currently

publish in the Federal Register for the guidance of the public --

(A) descriptions of its central and field

organization and the established places at which, the employees

(and in the case of a uniformed service, the members) from

whom, and the methods whereby, the public may obtain

information, make submittals or requests, or obtain decisions;

(B) statements of the general course and

method by which its functions are channeled and determined,

including the nature and requirements of all formal and informal

procedures available;

C-2

available or the places at which forms may be obtained, and

instructions as to the scope and contents of al! papers, reports,

or examinations;

(D) substantive rules of general applicability

adopted as authorized by law, and statements of general policy

or interpretations of general applicability formulated and

adopted by the agency; and

(E) each amendment, revision, or repeal of

the foregoing.

Except to the extent that a person has actual and timely notice

of the terms thereof, a person may not in any manner be

required to resort to, or be adversely affected by, a matter

required to be published in the Federal Register and not so

published. For the purpose of this paragraph, matter reasonably

available to the class of persons affected thereby is deemed

published in the Federal Register when incorporated by

reference therein with the approval of the Director of the

Federal Register.

(2) Each agency, in accordance with published rules,

shall make available for public inspection and copying--

(A) final opinions, including concurring and

dissenting opinions, as well as orders, made in the adjudication

of cases;

(B) those statements of policy and

interpretations which have been adopted by the agency and are

not published in the Federal Register; and

C-3

instructions to staff that affect a member of the public;

unless the materials are promptly published and copies offered

for sale. To the extent required to prevent a clearly

unwarranted invasion of personal privacy, and agency may

delete identifying details when it makes available or publishes an

opinion, statement of policy, interpretation, or staff manual or

instruction. However, in each case the justification for the

deletion shall be explained fully in writing. Each agency shall

also maintain and make available for public inspection and

copying current indexes providing identifying information for the

public as to any matter issued, adopted, or promulgated after

July 4, 1967, and required by this paragraph to be made

available or published. Each agency shall promptly publish,

quarterly or more frequently, and distribute (by sale or

otherwise) copies of each index or supplements thereto unless it

determines by order published in the Federal Register that the

publication would be unnecessary and impracticable, in which

case the agency shall nonetheless provide copies of such index

on request at a cost not to exceed the direct cost of duplication.

A final order, opinion, statement of policy, interpretation, or

staff manual or instruction that affects a member of the public

may be relied on, used, or cited as precedent by an agency

against a party other than an agency only if-

(i) it has been indexed and either made

available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of

the terms thereof.

(3) Except with respect to the records made available

under paragraphs (1) and (2) of this subsection, each agency,

upon any request for records which (A) reasonably describes

C-4

such records and (B) is made in accordance with published rules

stating the time, place, fees (if any), and procedures to be

followed, shall make the records promptly available to any

person.

(4)(A)(i) In order to carry out the provisions of this

section, each agency shall promulgate regulations, pursuant to

notice and receipt of public comment, specifying the schedule of

fees applicable to the processing of requests under this section

and establishing procedures and guidelines for determining when

such fees should be waived or reduced. Such schedule shall

conform to the guidelines which shall be promulgated, pursuant

to notice and receipt of public comment, by the Director of the

Office of Management and Budget and which shall provide for

a uniform schedule of fees for all agencies.

(ii) Such agency regulations shall provide that --

(1) fees shal! be limited to reasonable

standard charges for document search,

duplication, and review, when records are

requested for commercial use;

(11) fees shall be limited to reasonable

standard charges for document duplication when

records are not sought for commercial use and

the request is made by an educational or

noncommercial scientific institution, whose

purpose is scholarly or scientific research; or a

representative of the news media; and

(III) for any request not described in

(1) or (II), fees shall be limited to reasonable

standard charges for document search and

duplication.

C-5

(iii) | Documents shall be furnished without any

charge or at a charge reduced below the fees established

under clause (ii) if disclosure of the information is in the

public interest because it is likely to contribute

significantly to public understanding of the operations or

activities of the government and is not primarily in the

commercial interest of the requester.

(iv) Fee schedules shall provide for the

recovery of only the direct costs of search, duplication,

or review. Review costs shall include only the direct

costs incurred during the initial examination of a

document for the purposes of determining whether the

documents must be disclosed under this section and for

the purposes of withholding any portions exempt from

disclosure under this section. Review costs may not

include any costs incurred in resolving issues of law or

policy that may be raised in the course of processing a

request under this section. No fee may be charged by

any agency under this section --

(1) if the costs of routine collection

and processing of the fee are likely to equal or

exceed the amount of the fee; or

(II) for any request described in clause

(ii)(I])or (III) of this subparagraph for the first

two hours of search time or for the first one

hundred pages of duplication.

(v) No agency may require advance payment

of any fee unless the requester has previously failed to

pay fees in a timely fashion, or the agency has

determined that the fee will exceed $250.

(vi) Nothing in this subparagraph shall

supersede fees chargeable under a statute specifically

providing for setting the level of fees for particular types

_ of records.

(vii) In any action by a requester regarding the

waiver of fees under this section, the court shall

determine the matter de novo: Provided, That the

court’s review of the matter shall be limited to the record

before the agency.

(B) On complaint, the district court of the United

States in the district in which the complainant resides, or has his

principal place of business, or in which the agency records are

situated, or in the District of Columbia, has jurisdiction to

enjoin the agency from withholding agency records and to order

the production of any agency records improperly withheld from

the complainant. In such a case the court shall determine the

matter de novo, and may examine the contents of such agency

records in camera to determine whether such records or any part

thereof shal) oe withheld under any of the exemptions set forth

in subsection (b) of this section, and the burden is on the agency

to sustain its action.

defendant shall serve an answer or otherwise plead to any

complaint made under this subsection within thirty days after

service upon the defendant of the pleading in which such

complaint is made, unless the court otherwise directs for good

cause shown.

(D) Repealed

(E) The court may assess against the United States

reasonable attorney fees and other litigation costs reasonably

C-7

incurred in any case under this section in which the complainant

has substantially prevailed.

(F) | Whenever the court orders the production of any

agency records improperly withheld from the complainant and

assesses against the United States reasonable attorney fees and

other litigation costs, and the court additionally issues a written

finding that the circumstances surrounding the withholding raise

questions whether agency personnel acted arbitrarily or

capriciously with respect to the withholding, the Special Counsel

shall promptly initiate a proceeding to determine whether

disciplinary action is warranted against the officer or employee

who was primarily responsible for the withholding. The Special

Counsel, after investigation and consideration of the evidence

submitted, shall submit his findings and recommendations to the

administrative authority of the agency concerned and shall send

copies of the findings and recommendations to the officer or

employee or his representative. The administrative authority

shall take the corrective action that the Special Counsel

recommends.

(G) In the event of noncompliance with the order of

the court, the district court may punish for contempt the

responsible employee and in the case of a uniformed service, the

responsible member.

(S) Each agency having more than one

member shall maintain and make available for public

inspection a record of the final votes of each member in

every agency proceeding.

(6)(A) Each agency, upon any request for

records made under paragraph (1), (2), or (3) of this

subsection, shall--

C-8

(i) determine within ten days

(excepting Saturdays, Sundays, and legal public

holidays) after the receipt of any such request

whether to comply with such request and shall

immediately notify the person making such

request of such determination and the reasons

therefor, and of the right of such person to

appeal to the head of the agency any adverse

determination; and

(ii) make a determination with respect

tc any appeal within twenty days (excepting

Saturdays, Sundays, and legal public holidays)

after the receipt of such appeal. If on appeal the

denial of the request for reccrds is in whole or in

part upheld, the agency shall notify the person

making such request of the provisions for judicial

review of that determination under paragraph (4)

of this subsection.

(B) In unusual circumstances as specified in

this subparagraph, the time limits prescribed in either

clause (i) or clause (ii) of subparagraph (A) may be

extended by written notice to the person making such

request setting forth the reasons for such extension and

the date on which a determination is expected to be

dispatched. No such notice shall specify a date that

would result in an extension for more than ten working

days. As used in this subparagraph, ‘unusual

circumstances” means, but only to the extent reasonably

necessary to the proper processing of the particular

request—

(i) the need to search for and collect

the requested records from field facilities or

C-9

other establishments that are separate form the

office processing the request;

(ii) the need to search for, collect, and

appropriately examine a voluminous amount of

separate and distinct records which are

demanded in a single request; or

(iii) | the need for consultation, which

shall be conducted with all practicable speed,

with another agency having a substantial interest

in the determination of the request or amount

two or more components of the agency having

substantial subject-matter interest therein.

agency for records under paragraph (1), (2), or (3) of

this subsection shall be deemed to have exhausted his

administrative remedies with respect to such request if

the agency fails to comply with the applicable time limit

provisions of this paragraph. If the Government can

show exceptional circumstances exist and that the agency

is exercising due diligence in responding to the request,

the court may retain jurisdiction and allow the agency

additional time to complete its review of the records.

Upon any determination by an agency to comply with a

request for records, the records shall be made promptly

available to such person making such request. Any

notification of denial of any request for records under

this subsection shall set forth the names and titles or

positions of each person responsible for the denial of

such request.

(b) This section does not apply to matters

that are--

C-10

(1)(A) specifically authorized under

criteria established by an Executive order to be

kept secret in the interest of national defense or

foreign policy and (B) are in fact properly

classified pursuant to such Executive order;

(2) related solely to the internal

personnel rules and practices of an agency;

(3) specifically exempted from

disclosure by statute (other than section 552b of

this title), provided that such statute (A) requires

that the matters be withheld from the public in

such a manner as to leave no discretion on the

issue, or (B) establishes particular criteria for

withholding or refers to particular types of

matters to be withheld;

(4) trade secrets and commercial or

financial information obtained form a person and

privileged or confidential;

(5S) inter-agency or _ intra-agency

memorandums or letters which would not be

available by law to a party other than an agency

in litigation with the agency;

(6) personnel and medical files and

similar files the disclosure of which would

constitute a clearly unwarranted invasion of

personal privacy.

(7) records or information compiled

for law enforcement purposes, but only to the

extent that the production of such law

C-11

enforcement records or information (A) could

reasonably be expected to interfere with

enforcement proceedings, (B) would deprive a

person of a right to a fair trial or an impartial

adjudication, (C) could reasonably be expected

to constitute an unwarranted invasion of personal

privacy, (D) could reasonably be expected to

disclose the identity of a confidential source,

including a State, local, or foreign agency or

authority or any private institution which

furnished information on a confidential basis, and

, in the case of a record or information compiled

by criminal law enforcement authority in the

course of a criminal investigation or by an agency

conducting a lawful national security intelligence

investigation, information furnished by a

confidential source, (E) would _ disclose

techniques and procedures for law enforcement

investigations or prosecutions, or would disclose

guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably

be expected to risk circumvention of the law, or

(F) could reasonably be expected to endanger the

life or physical safety of any individual;

(8) contained in or related to

examination, operating, or condition reports

prepared by, on behalf of, or for the use of an

agency responsible for the regulation or

supervision of financial institutions; or

(9) geological and _ geophysical

information and data, including maps, concerning

wells.

C-12

Any reasonable segregable portion of a record shall be provided

to any person requesting such record after deletion of the

portions which are exempt under this subsection.

(c)(1) Whenever a request is made which involves

access to records described in subsection (b)(7)(A) and—

(A) _ the investigation or proceeding involves a

possible violation of criminal law; and

(B) there is reason to believe that (i) the

subject of the investigation or proceeding is not aware of

its pendency, and (ii) disclosure of the existence of the

records could reasonably be expected to interfere with

_ enforcement proceedings, the agency may, during only

such time as that circumstance continues, treat the

records as not subject to the requirements of this section.

(2) Whenever informant records maintained

by a criminal law enforcement agency under an informant’s

name or personal identifier are requested by a third party

according to the informant’s name or personal identifier, the

agency may treat the records as not subject to the requirements

of this section unless the informant’s status as an informant has

been officially confirmed.

(3) Whenever a request is made which

involves access to records maintained by the Federal bu.eau of

Investigation pertaining to foreign’ intelligence or

counterintelligence, or international terrorism, and the existence

of the records is classified information as provided in subsection

(b)(1), the Bureau may, as long as the existence of the records

remains classified information, treat the records as not subject

to the requirements of this section.

C-13

(d) This section does not authorize

withholding of information or limit the availability of records to

the public, except as specifically stated in this section. This

section is not authority to withhold information form congress.

(e) . On or before March 1 or each calendar

year, each agency shall submit a report covering the preceding

calendar year to the Speaker of the House of Representatives

and President of the Senate for referral to the appropriate

committees of the Congress. The report shall include-

(1) the number of determinations made by

such agency not to comply with requests for records

made to such agency under subsection (a) and the

reasons for each such determination;

(2) the number of appeals made by persons

under subsection (a)(6), the result of such appeals, and

the reason for the action upon each appeal that results in

a denial of information;

(3) the names and titles or positions of each

person responsible for the denial of records requested

under this section, and the number of instances of

participation for each;

(4) the results of each proceeding conducted

pursuant to subsection (a)(4)(F), including a report of

the disciplinary action taken against the officer or

employee who was primarily responsible for improperly

withholding records or an explanation of why disciplinary

action was not taken;

(5) a copy of every rule made by such agency

regarding this section;

C-14

(6) a copy of the fee schedule and the total

amount of fees collected by the agency for making

records available under this section; and

(7) such other information as indicates efforts

to administer fully this section.

The attorney General shall submit an annual report on or before

March 1 of each calendar year which shall include for the prior

calendar year a listing of the number of cases arising under this

section, the exemption involved in each case, the disposition of

such case, and the cost, fees and penalties assesses under

subsections (a)(4)(E), (F), and (G). Such report shall also

include a description of the efforts undertaken by the

Department of Justice to encourage agency compliance with this

section.

(f) For purposes of this section, the term

“‘agency”’ as defined in section 551(1) of this title includes any

executive department, military department, Government

corporation, Government controlled corporation, or other

establishment in the executive branch of the Government

(including the Executive Office of the President), or any

independent regulatory agency.

(As amended Pub.L. 95-454, Title IX, § 906(a)(10), Oct. 13,

1978, 92 Stat. 1225; Pub.L. 98-620, Title IV, § 402(2), Nov. 8,

1984, 98 Stat. 3357; Pub.L. 99-570, Title I §§ 1802, 1803, Oct.

27, 1986, 100 Stat. 3207-48, 3207-49.)

C-15

2. 5 United States Code Section 2105 provides:

§ 2105. Empioyee

(a) For the purpose of this title, ““employee”’,

except as otherwise provided by this section or when specifically

modified, means an officer and an individual who is—

(1) appointed in the civil service by one of the

following acting in an official capacity—-

(A) _ the President;

(B) |aMember or Members of Congress, or the

Congress;

(D) an individual who is an employee under

this section;

(E) the head of a Government controlled

corporation; or

(F) an adjutant general designated by the

Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal

function under authority of law or an Executive act; and

(3) subject to the supervision of an individual

named by paragraph (1) of this subsection while engaged in the

performance of the duties of his position.

C-16

(b) An individual employed at the United

States Naval Academy in the midshipmen’s laundry, the

midshipmen’s tailor shop, the midshipmen’s cobbler and barber

shops, and the midshipmen’s store, except an individual

employed by the Academy dairy, is deemed an employee.

funds of the Army and Air Force Exchange Service, Army and

Air Force Motion Picture Service, Navy Ship’s Stores Ashore,

Navy exchanges, Marine Corps exchanges, Coast Guard

exchanges, and other instrumentalities of the United States

under the jurisdiction of the armed forces conducted for the

comfort, pleasure contentment, and mental and physical

improvement of personnel of the armed forces is deemed not an

employee for the purpose of--

(1) laws (other than subchapter IV of

chapter 53 of this title, subchapter III of chapter 83 of this title

to the extent provided in section 8332(b)(16) of this title, and

sections 5550 and 7204 of this title) administered by the Office

of Personnel Management; or

(2) subchapter I of chapter 81, chapter

84, and section 7902 of this title.

This subsection does not affect the status of these

nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not

on active duty or who is on active duty for training is deemed

not an employee or an individual holding an office of trust or

profit or discharging an official function under or in connection

with the United States because of his appointment, oath, or

status, or any duties or functions performed or pay or allowances

received in that capacity.

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(e) Except as otherwise provided by law, an

employee of the United States Postal Service or of the Postal

Rate Commission is deemed not an employee for purposes of

this title.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 409; Pub.L. 90-486, § 4,

Aug. 13,1968, 82 777?t. 757; Pub.L. 91-375, § 6(c)(4), Aug.

12,1970, 84 Stat. 775; Pub.L. 92-392, § 2, Aug. 19, 1972, 86

Stat. 573.

a 10 United States Code Section 1034 in 1984 provided:

§ 1034. Communicating with a member of Congress

~ No person may restrict any member of an armed force

in communicating with a member of congress, unless the

communication is unlawful or violates a regulation

necessary to the security of the United States.

(Aug. 10, 1956, c. 1041, 70A Stat. 80.)

4. 10 United States Code 1034, as amended in 1988

provides:

(a) Restricting communications with Members of

Congress and Inspector General prohibited--(1) No person may

restrict a member of the armed forces in communicating with a

Member of Congress or an Inspector General.

(2) Paragraph (1) does not apply to a communication

that is unlawful.

(b) Prohibition of retaliatory personnel actions.-- No

person may take (or threaten to take) an unfavorable personnel

action, or withhold (or threaten to withhold) a favorable

personnel action, as a reprisal against a member of the armed

forces for making or preparing a communication to a Member

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of Congress or an Inspector General that (under subsection (a))

may not be restricted. Any actin prohibited by the preceding

sentence (including the threat to take any action and the

withholding or threat to withhold any favorable action) shall be

considered for the purposes of this section to be a personnel

action prohibited by this subsection.

allegations.-- (1) If a member of the armed forces submits to

the Inspector General of the Department of Defense (or the

Inspector General of the Department of Transportation, in the

case of a member of the Coast Guard when the Coast Guard is

not operating as a service in the Navy) an allegation that a

personnel action prohibited by subsection () has been taken (or

threatened) against the member with respect to a communication

described in paragraph (2), the Inspector General shall

expeditiously investigate the allegation.

(2) A communication described in this paragraph is

a communication to a Member of Congress or an Inspector

General that (under subsection (a)) may not be restricted in

which the member of the armed forces makes a complaint or

discloses information that the member reasonably believes

constitutes evidence of--

(A) a violation of a law or regulation; or

(B) mismanagement, a gross waste of funds,

an abuse of authority, or a substantial and specific danger to

public health or safety.

(3) | The Inspector General is not required to make an

investigation under paragraph (1) in the case of an allegation

made more than 60 days after the date on which the member

Eee

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becomes aware of the personnel action that is the subject of the

allocation.

(4) If the Inspector General has not already done so,

the Inspector General shall commence a separate investigation

of the information that the member believes evidences

wrongdoing as described in subparagraph (A) or (B) of

paragraph (2). The Inspector General is not required to make

such an investigation if the information that the member believes

evidences wrongdoing relates to actions which took place during

combat.

(5) Not later than 30 days after completion of an

investigation under this subsection, the Inspector General shall

submit a report on the results of the investigation to the

Secretary of Defense (or to the Secretary of Transportation in

the case of a member of the Coast Guard when the Coast Guard

is not operating as a service in the Navy) and the member of the

armed forces concerned. In the copy of the report submitted to

the member, the Inspector General may exclude any information

that would not otherwise be available to the member under

section 552 of title 5.

‘te (6) If, in the course of an investigation of an

allegation under this section, the Inspector General determines

that it is not possible to submit the report required by paragraph

(5) within 90 days after the date of receipt of the allegation

being investigated, the Inspector General shall provide to the

Secretary of Defense (or to the Secretary of Transportation in

the case of a member of the Coast Guard when the Coast Guard

is not operating as a service in the Navy) and to the member

making the allegation a notice-

(A) of that determination (including the reasons

why the report may not be submitted within that time);

and

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(B) of the time when the report will be

submitted.

(7) The report on the results of the investigations

shall contain a thorough review of the facts and circumstances

relevant to the allegation and the complaint or disclosure and

shall include documents acquired during the course of the

investigation, including summaries of interviews conducted. The

report may include a recommendation as to the disposition of

the complaint.

(d) Correction of records when prohibited action taken.

-~ (1) A board for the correction of military records acting under

section 1552 of this title, in resolving an application for the

correction of records made by a member or former member of

the armed forces who has alleged a personnel action prohibited

by subsection (b), on the request of the member or former

member or otherwise, may review the matter.

(2) In resolving an application described in paragraph

(1), a correction board --

(A) shall review the report of the Inspector

General submitted under subsection (c)(5);

(B) may request the Inspector General to gather

further evidence; and

cross-examine witnesses, take depositions, and, if

appropriate, conduct an evidentiary hearing.

(3) If the board elects to hold an administrative

hearing, the member or former member who filed the

application described in paragraph (1) --

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(A) _ may be provided with representation by a

judge advocate if —

(i) the inspector General, in the report

under subsection (c)(5), finds that there is

probable cause to believe that a personnel action

prohibited by subsection (b) has been taken (or

threatened) against he member with respect to a

communication described in subsection (c)(2;

(ii) the Judge Advocate General

concerned determines that the case is unusually

complex or otherwise requires judge advocate

assistance to ensure proper presentation of the

legal issues in the case; and

(iii) the member is not represented by

outside counsel chosen by the member; and

(B) may examine’ witnesses through

deposition, serve interrogatories, and request the

production of evidence, including evidence contained in

the investigatory record of the Inspector General but not

included in the report submitted under subsection (c)(5).

(4) The secretary concerned shall issue a final

decision with respect to an application described in paragraph

(1) within 180 days after the application is filed. If the Secretary

fails to issue such a final decision within that time, the member

or former member shall be deemed to have exhausted the

member’s or former member’s administrative remedies under

section 1552 of this title.

(5) The Secretary concerned shall order such action,

consistent with the limitations contained in sections 1552 and

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1553 of this title, as is necessary to correct the record of a

personnel action prohibited by subsection (b).

(6) If the Board determines that a personnel action

prohibited by subsection (b) has occurred, the Board may

recommend to the Secretary concerned that the Secretary take

appropriate disciplinary action against the individual who

committed such personnel action.

(e) Review by Secretary of Defense.-Upon the

completion of all administrative review under subsection (d), the

member or former member of the armed forces (except for a

member or former member of the Coast Guard when the Coast

Guard is not operating as a service in the Navy) who made the

allegation referred to in subsection (c)(1), if not satisfied with

the disposition of the matter, may submit the matter to the

Secretary of Defense. The Secretary shall make a decision to

reverse or uphold the decision of the Secretary of the military

department concerned in the matter within 90 days after receipt

of such a submittal.

(f) Post-disposition interviews.-- After disposition of

any case under this section, the Inspector General shall,

whenever possible, conduct an interview with the person making

the allegation to determine the views of that person on the

disposition of the matter.

(g) Regulations.--The Secretary of Defense, and the

Secretary of Transportation with respect to the coast Guard

when it is not operating as a service in the Navy, shall prescribe

regulations to carry out this section.

(h) Definitions.—In this section:

(1) The term “Member of Congress’’ includes any

Delegate or Resident Commissioner to Congress.

— ©

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(2) The term “Inspector General” means-

(A) an Inspector General appointed under the

Inspector General Act of 1978; and

(B) an officer of the armed forces assigned or

detailed under regulations of the Secretary

concerned to serve as an Inspector General at

any command level in one of the armed forces.

(3) The Inspector General is not required to make an

investigation under paragraph (1) in the case of an allegation

made more than 60 days after the date on which the member

becomes aware of the personnel action that is the subject of the

allegation.

(4) If the Inspector General has not already done so,

the Inspector General shali commence a separate investigation

of the information that the member believes evidences

wrongdoing as described in subparagraph (A) or (B) of

paragraph (2). The Inspector General is not required to make

such an investigation if the information that the member believes

evidences wrongdoing relates to actions which took place during

combat.

(5) Not later than 30 days after completion of an

investigation under this subsection, the Inspector General shall

submit a report on the results of the investigation to the

Secretary of Defense (or to the Secretary of Transportation in

the case of a member of the Coast guard when the Coast Guard

is not operating as a service in the Navy) and the member of the

armed forces concerned. In the copy of the report submitted to

the member, the Inspector General may exclude any information

that would not otherwise be available to the member under

section 552 of title 5.

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(6) If, in the course of an investigation of an

allegation under this section, the Inspector General determines

that it is not possible to submit the report required by paragraph

(5) within 90 days after the date of receipt of the allegation

being investigated, the Inspector General shall provide to the

Secretary of Defense (or to the Secretary of Transportation in

the case of a member of the Coast Guard when the Coast guard

is not operating as a service in the Navy) and to the member

making the allegation a notice—

(A) of that determination (including the

reasons why the report may not de submitted within that time);

and

(B) cf the time when the report will be

submitted.

(7) The report on the results of the investigation shall

contain a thorough review of the facts and circumstances

relevant to the allegation and the complaint or disclosure and

shall include documents acquired during the course of the

investigation, including summaries of interviews conducted. The

report may include a recommendation as to the disposition of

the complaint.

(d) Correction of records when prohibited action taken.--(1)

A board for the correction of military records acting under

section 1552 of this title, in resolving an application for the

correction of records made by a member or former member of

the armed forces who has alleged a personnel action prohibited

by subsection (b), on the request of the member or former

member or otherwise, may review the matter.

(2) In resolving an application described in paragraph (1), a

correction board-

C-25

(A) _ shall review the report of the Inspector General

submitted under subsection (c)(5);

(B) may request the inspector General to gather

further evidence; and

witness, take depositions, and, if appropriate, conduct an

evidentiary hearing.

(3) If the board elects to hold an administrative hearing, the

member or former member who filed the application described

in paragraph (1)--

(A) may be provided with representation by a

judge advocate if--

(i) the Inspector General, in the report under

subsection (c)(5), finds that there is probable cause to believe

that a personnel action prohibited by subsection (b) has been

taken (or threatened) against the member with respect to a

communication described in subsection (c)(2);

(ii) the Judge Advocate General concerned

determines that the case is unusually complex or otherwise

requires judge advocate assistance to ensure proper presentation

of the legal issues in the case; and

(iii) | the member is not represented by outside counsel

chosen by the member; and

(B) may examine witnesses through deposition, serve

interrogatories, and request the production of evidence,

including evidence contained in the investigation.

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(As amended Oct. 19, 1984, Pub.L. 98-525, Title XIV, §

1405(19)(A), (B)(i), 98 Stat. 2622; Sept. 29, 1988, Pub.L. 100-

456, Div. A, Title VIII, § 846(a)(1), 102 Stat. 2027; Dec. 12,

1989, Pub.L. 101-225, Title II, § 202, 103 Stat. 1910.)

Regulations

:. Navy Regulation Section 1148 provides

1148. Dealing with members of Congress.

No person may restrict any member of an armed force

in communicating with a Member of congress, unless the

communication is unlawful or violates a regulation necessary to

the security of the United States.

2. Navy Regulation Section 1149 provides:

1149. Communications to the congress.

No person in the naval service shall, in his official

capacity, apply to the Congress or to either house thereof, or to

any committee thereof, for legislation or for appropriations or

for Congressional action of any kind except with the consent and

knowledge of the Secretary of the Navy. Nor shall any such

person, in his official capacity, respond to any request for

information form congress, or from whither house thereof, or

from any committee of Congress, except through, or as

authorized by, the Secretary of the Navy, or as provided by law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.