Banks v. Garrett

• Decision Date: 09 February 1990
• Docket Number: No. 89-1485,89-1485
• Parties: Richard A. BANKS, Plaintiff-Appellant, v. H. Lawrence GARRETT, III, Secretary of the Navy, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1084

901 F.2d 1084

Richard A. BANKS, Plaintiff-Appellant, v. H. Lawrence GARRETT, III, Secretary of the Navy, Defendant-Appellee.

No. 89-1485.

United States Court of Appeals Federal Circuit.

Feb. 9, 1990.

Unpublished Opinion Issued Feb. 9, 1990.

Published Opinion Issued April 20, 1990.

Roger J. Nichols, of Kadenacy, Mendelson & Schwaber, Los Angeles, Cal., argued, for plaintiff-appellant. With him on the brief, was Penrose Lucas Albright, of Arlington, Va.

CDR Richard Walsh, Office of the Judge Advocate Gen., Dept. of the Navy, argued, for defendant-appellee. With him on the brief, were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Thomas W. Petersen, Asst. Director, and John S. Groat, of the Civ. Div., Dept. of Justice, Washington, D.C.

Before NIES and MICHEL, Circuit Judges, 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 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. Ball, 705 F.Supp. 282, 283 (E.D.Va.1989). By December of 1983 Banks heard rumors that the scheduled delivery of the Hornet was to be cancelled. Id. at 283. That month he wrote an official letter to the Secretary of the Navy, via his chain of command, expressing his concerns. Id. at 283. 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 283.

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 attention to the possibility that the current planned transition of this command to the F/A-18 aircraft is in jeopardy." Id. at 284. 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 284. In January of 1986 the adverse fitness report was removed from Banks' records, id. at 284-85, 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 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 position without offending the first amendment.

OPINION

Appellant asserts this court has jurisdiction under 28 U.S.C. Sec. 1295(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, e.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. Sec. 1295(a)(2) to hear this appeal.

I. 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 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, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976).

Appellant claims he is due back pay under 37 U.S.C. Secs. 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 "[f]ull-time duty in a U.S. Military Service." 32 C.F.R. Sec. 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, 26 S.Ct. 469, 50 L.Ed. 798 (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 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, at 284. 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. Sec. 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. Sec. 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.

II. The First Amendment and Privacy Act Claims

Appellant also alleged violations of his first amendment ¹ 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 United States v. Hohri, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987), in which the Supreme Court stated that a "mixed case...