Appeal from the United States District Court for the Eastern District of Virginia, Civil No. 86-0923-A, Judge Cacheris.
Before Nies, Michel, Circuit Judges, and Beer, District Judge.*fn1
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.
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 cancelled. 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 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, slain 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 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.
Whether Banks' violation of Navy Regulation 1149 supports transfer to a nonpay position without offending the first amendment.
Appellant asserts this court has jurisdiction under 28 U.S.C. § 1295(a)(2) (1982). We do have exclusive jurisdiction over tan 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 ...