Banks v. Ball
| Decision Date | 01 February 1989 |
| Docket Number | Civ. A. No. 86-0923-A. |
| Citation | 705 F. Supp. 282 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Richard A. BANKS, Plaintiff, v. William L. BALL, III, Secretary of the Navy, Defendant. |
Roger J. Nichols, Los Angeles, Cal., Penrose Lucas Albright, Arlington, Va., for plaintiff.
Commander Richard S. Walsh, JAGC, USN, Office of the Judge Advocate Gen. of the Navy, Gen. Litigation Div., Dept. of the Navy, Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., for defendant.
This matter is before the court on the plaintiff's Complaint seeking a declaratory judgment that Article 1149 of Navy Regulations be declared unconstitutional in violation of the First Amendment and be declared not applicable to the plaintiff, Richard A. Banks ("Banks") as a Naval reservist.1 Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure defendant moves for dismissal of plaintiff's action on the grounds that upon the facts and the law plaintiff has shown no right to relief.2 For the reasons set forth below, the defendant's Motion is granted.
The court adopts the party's Stipulation of Uncontested Facts and in addition finds the other relevant facts to be as follows:
Plaintiff, Richard A. Banks, ("Banks") served on active duty as a Naval aviator, commencing in December, 1966 and continuing until December, 1971. Following his tour of extended active duty, plaintiff continued to serve as a Naval aviator in the U.S. Naval Reserve. Plaintiff's Naval record includes 126 missions of combat flying during the Vietnam War. (Plaintiff's Proposed Findings of Fact ¶ 1).
The defendant, William L. Ball, III, is the Secretary of the Navy and is being sued in his official capacity.3 However, during all periods material to this case, the Secretary of the Navy was John F. Lehman ("Lehman"). (Lehman Dep. at 6).
Effective July 25, 1983 Banks assumed command of VFA-303. His assignment was approved by the Commander of the Naval Reserve Forces, Rear-Admiral T.F. Rinard, United States Naval Reserve ("Rinard"). (Stip. of Fact ¶ 3, Plaintiff's Exh. 1, Testimony of Rinard).
VFA-303 was designated as the first Naval Reserve Aviation Squadron to receive the new F/A-18 Hornet ("Hornet") aircraft. (Lehman Dep. at 18, Testimony of Banks).
The transition to allow Naval Reserve Squadrons to use new aircraft like the Hornet was a part of the Navy's "Horizontal Integration, program which was to modify the reserve forces with the latest equipment so they could both mobilize immediately and bear the peacetime burden on a day-to-day basis with active forces." (Lehman Dep. at 9, Testimony of Banks, Testimony of Rinard).
Banks was initially informed that the new Hornet aircraft would be delivered in April, 1984. The April delivery date was subsequently changed to June of 1984. (Testimony of Banks).
The delay in delivery was occasioned by the opposition of a Senate Arms Service Committee staffer, Carl Smith, to any Naval Reserve squadrons receiving Hornets prior to the active duty units. (Lehman Dep. at 20-21).
As of December, 1983 Banks had heard rumors that the planned delivery of the Hornets to the reserve units was to be cancelled. (Defendant's Exh. K).
In late December, 1983 Banks discussed his concern about the rumors with his immediate superior, Captain Thomas B. Latendresse, U.S.N. Commander, Carrier Air Wing Reserve THIRTY. Banks discussed the possibility of sending letters about his concern to members of Congress. Latendresse told him to give it a try, but he also told him to "be careful." (Testimony of Banks).
In December, 1983 Banks forwarded an official letter to the Secretary of the Navy via his chain of command expressing his concerns. Banks' letter was returned to him by Rear Admiral Rinard for the inclusion of additional addresses. The letter was corrected and sent out again. Banks never received a reply from the Secretary. (Defendant's Exh. A at 3, Testimony of Rinard).
In late December, 1983 or early January, 1984 Banks called Rinard regarding the delays in receiving the Hornets. Rinard assured Banks that his squadron's training schedule, to prepare for receipt of the aircraft, was still on track. However, Rinard informed Banks that there were some uncertainties as to when Banks' squadron would be receiving the new Hornets. Banks discussed the idea of writing members of Congress with Rinard. Rinard advised Banks that he could write as a private citizen or use a procedure through the Navy chain of command. Rinard counselled Banks against writing in his official capacity. (Testimony of Rinard, Defendant's Exh. A at 4).
Commander Banks drafted the letters dated January 6, 1984 to members of Congress. Certain VFA-303 military personnel prepared one copy for each of the twelve to fifteen members of the House of Representatives and Senate Armed Services Committees. Commander Banks authorized one of his subordinate officers in the squadron to sign his name to the letters and to mail them. Although Commander Banks did not personally sign the letters, he does not deny and assumes full responsibility for their issuance. (Testimony of Banks; Stip. of Fact ¶'s 4, 5; Defendant's Exh. A at 5).
The letters, addressed to the members of Congress, were typed on official Navy letterhead. The letter began: "As the Commanding Officer of Strike Fighter Squadron THREE ZERO THREE I would like to draw your attention to the possibility that the current planned transition of this command to the F/A-18 aircraft is in jeopardy." Through the letters Banks was attempting to point out what he saw as a problem and obtain support from Congress. In addition, Banks included his home and office telephone numbers, volunteered his presence in Washington if the congressmen deemed it necessary, and signed the letter "R.A. Banks, Commanding Officer." (Defendant's exhibit I).
Banks also urged other members of his Squadron to write letters to Congressmen. (Defendant's Exh. A at 5, Defendants Exh. K).
One of the letters had been addressed to Congressman William Whitehurst of Virginia who subsequent to receiving the letter contacted the Secretary of the Navy. A Captain Jerry Palmer contacted Banks and informed him that his letter had "created a hornet's nest and the Secretary of the Navy is pissed." (Testimony of Banks, Defendant's Exh. I).
Copies of the letters were received by Rear Admiral Rinard and Vice Admiral Kempf ("Kempf"). (Testimony of Rinard, Testimony of Kempf).
Rinard determined that Banks had violated Navy regulations by sending his letter to the congressmen and ignored the advice that he had given him in late December, 1983 or early January, 1984 to not send the letters in his official capacity. .
Rinard had the authority to direct the reassignment of an officer in a command billet. (Stip. of Fact ¶ 3, Testimony of Rinard). On January 24, 1984 Rinard called Banks and advised him that because of the letter writing he was transferred to a voluntary (non-paying) training unit in Alameda, California. Rinard felt that the letters had created a controversy but it did not warrant relieving Banks of command. (Testimony of Banks, Plaintiff's Exh. 4, Defendant's Exh. A at 6).
Rinard's decision to reassign Banks from Squadron Commander of VFA-303 to a voluntary training unit was an administrative decision and not punitive action. Rinard was disappointed with Banks because he had acted contrary to his instructions and felt that Banks would not follow other orders. (Testimony of Rinard, Defendant's Exh. O).
Prior to reassigning Banks, Rinard discussed his proposed action with Admiral Kempf. Admiral Kempf did not direct the action that Rinard should take but discussed the proposed reassignment with Secretary Lehman. Lehman had no objection to the proposed action. (Testimony of Rinard, Lehman Dep. at 32-34).
In March, 1984 Rinard initiated and executed an adverse fitness report on Banks. He stated in the comment section that he was transferring Banks due to his violation of Article 1149 of the Navy Regulations. Rinard assigned Banks low grades in judgment, organizational support, and desirability for command. (Defendant's Exh. M, Testimony of Rinard).
Secretary Lehman did not direct the preparation of the fitness report on Banks. (Testimony of Lehman, Lehman Dep. at 31-32, Testimony of Rinard).
Secretary Lehman did not give his approval to Banks' letter. (Lehman Dep. at 47).
On January 10, 1986 the adverse fitness report was removed from plaintiff's records. (Defendant's Exh. Z). The Naval Investigative Service has conducted an investigation of the entire letter writing incident. (Plaintiff's Exh. 18).
This case presents itself as a Motion to Dismiss Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.4
Rule 41(b) expressly authorizes a motion for dismissal by a defendant after the plaintiff has completed the presentation of his evidence on the grounds that upon the facts and the law, the plaintiff has shown no right to relief. Rule 41(b) states in pertinent part:
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence.
In deciding a motion for involuntary dismissal under Rule 41(b), the court is free to weigh the evidence and pass on the credibility of witnesses, which it may not do when deciding whether or not to grant a motion for a directed verdict in a jury case. Rule 41(b) requires a court rendering judgment on the merits against the plaintiff to make findings as provided in Rule 52(a)...
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...Unauthorized use of official titles and channels of communication was disapproved by the Eastern District of Virginia in Banks v. Ball, 705 F.Supp. 282 (E.D.Va. 1989). In Banks, the court dismissed a case brought by a Naval Reservist who had used Navy letterhead and his title to write to Co......
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