# Petition for Writ of Certiorari — Banks v. Garrett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1689%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 821 ## Text Supreme Court, U.S. 89-1966 FILED ( | JUN 1 1990 @OSEPH F. SPANIOL, JR CLERK ~ e+ JS 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 1 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? ii 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- ES 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. 10 11 11 17 18 18 20 IV. 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 23 23 24 26 27 v 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 vi 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. 1 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 2 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 3 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 4 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. 5 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’ 6 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). 7 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 8 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 9 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 10 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 11 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.” a 12 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) 13 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 a 14 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] 15 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: 16 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. . 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 af 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, V. 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 me eld tel iar ta ~L.pithtope net Mi ea Gn9 Fone 7 Pate 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 (C) _ rules of procedure, descriptions of forms 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 (C) administrative staff manuals and 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. C4 (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. (C) Notwithstanding any other provision of law, the 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. (C) Any person making a request to any 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; (C) | amember of a uniformed service; (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. (c) An employee paid from nonappropriated 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. C-17 (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 C-18 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. (c) Inspector General investigation of certain 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 C-19 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 C-20 (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 (C) may receive oral argument, examine 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) -- C-21 (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 C-22 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. — © C-23 (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. C-24 (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 (C) may receive oral argument, examine and cross-examine 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. C-26 (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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1689%3A1. Public record. Not legal advice.