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Aikens v. Ingram

United States Court of Appeals, Fourth Circuit

January 29, 2016

FREDERICK AIKENS, Plaintiff - Appellant,
WILLIAM E. INGRAM, JR., individually and in his capacity as Adjutant General of the North Carolina Army National Guard; PETER VON JESS, individually and in his capacity as Lieutenant Colonel of the North Carolina National Guard, Defendants - Appellees

Argued: December 9, 2015.

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Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:11-cv-00371-BO). Terrence W. Boyle, District Judge.

ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant.

Gerald Kevin Robbins, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

ON BRIEF: William Woodward Webb, Jr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant.

Roy Cooper, North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before KING, SHEDD, and THACKER, Circuit Judges. SHEDD, Circuit Judge, concurring.


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THACKER, Circuit Judge.

Colonel Frederick Aikens (" Appellant" ) challenges the district court's grant of summary judgment on his 42 U.S.C. § 1983 claim in favor of two former members of the North Carolina Army National Guard, Adjutant General William E. Ingram (" Ingram" ) and Lieutenant Colonel Peter von Jess (" von Jess" ) (collectively, " Appellees" ). Appellant alleges that Appellees, motivated by revenge, directed other service members to monitor Appellant's email messages, which he sent while serving on active duty in Kuwait, and to forward incriminating messages to von Jess. Appellant claims this alleged conduct violated his Fourth Amendment rights.

The district court granted summary judgment based on the justiciability doctrine set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) (providing a four-factor test for reviewability of claims based on internal military affairs). For the reasons that follow -- and acknowledging that Appellant now renounces any claim for equitable relief -- we affirm the district court on the basis of the military abstention doctrine set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).


The district court's opinion sets forth the extensive procedural history of this case, so we do not relay it here. See Aikens v. Ingram, 71 F.Supp.3d 562, 565-66 (E.D.N.C. 2014). We recount the following relevant factual background in the light most favorable to Appellant, the non-moving party. See Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015).

In 2001, Appellant, then a member of the North Carolina National Guard (" NCNG" ), was promoted from executive officer to full colonel and commanding officer of the 139th Rear Operations Center (" ROC" ). After Appellant's promotion, Adjutant General Ingram named his longtime friend, von Jess, as executive officer in Appellant's place. This assignment meant that Appellant was in a supervisory position over von Jess.

In December 2002, Appellant was instructed to complete an officer evaluation report (" OER" ) of von Jess. Appellant gave von Jess a negative OER, which explained that von Jess " ha[d] not demonstrated the ability to treat everyone with dignity and respect and should not be promoted." J.A. 246.[1] Von Jess appealed the

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OER to Ingram, stating that Appellant was " purposefully vindictive," " angry," " irrational," and possessed " professional jealousy." J.A. 247, 257.

In early 2003, Appellant was called to active duty and deployed to Camp Doha, Kuwait. Ingram and von Jess remained in North Carolina, but the animosity between Appellant and von Jess did not subside. In November 2003, Appellant received notice that Specialist Paul Jones and Staff Sergeant Brian McCarthy, information technology personnel supporting the 139th ROC, had used illegal means to obtain his personal emails for the better part of 2003. Appellant learned that Jones and McCarthy forwarded around 130 of those emails to von Jess, who was not deployed at the time.[2] Von Jess referenced those emails in a memorandum to the North Carolina Governor's chief of staff. In that memorandum, von Jess accused Appellant of " unethical and unprofessional behavior that . . . shows criminal intent to overthrow the Adjutant General," and he claimed information in the emails " parallel[led] treason or mutiny." J.A. 259-60. Von Jess also forwarded the emails to the Department of the Army Inspector General (" DAIG" ).

In May 2004, the DAIG informed Appellant that he was being investigated for contributing to a hostile command climate and having inappropriate relations with women. The DAIG concluded that Jones and McCarthy improperly browsed Appellant's email, but it nonetheless used the information in the emails to find six instances of active duty misconduct on Appellant's part. The DAIG provided its findings to the Governor of North Carolina and Ingram. Ingram then forwarded the findings to the Commander of the First United States Army, Lieutenant General Russel Honoré . In July 2005, Honoréwithdrew federal recognition from Appellant, and he was constructively terminated from the NCNG. Appellant waived the withdrawal hearing and elected to transfer to the retired reserve.

On April 27, 2006, Appellant sued Appellees pursuant to 42 U.S.C. § 1983,[3] claiming that they facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait. In support of his claim, Appellant emphasized his turbulent history with von Jess, and a special camaraderie between von Jess and Ingram. Specifically, Appellant maintains that von Jess and Ingram authorized and directed McCarthy and Jones to monitor Appellant's emails and send incriminating emails to von Jess.

Appellees moved for summary judgment, asserting Appellant's claims failed for several reasons. They argued Appellant had no reasonable expectation of privacy in his emails because Army Regulation 380-19, in effect at the time of Appellant's deployment to Camp Doha, made clear that emails sent and received over the Department of Defense (" DOD" ) computer system could be monitored. See U.S. Dep't of Army, Reg. 380-19, Information Systems Security § 4-1(l) (Feb. 27, 1998) (providing that the DOD computer system was to be used " only

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for authorized U.S. government use" ; use of the system, " authorized or unauthorized," constituted " consent to monitoring" ; and " all communications over the DOD system [could] be monitored" ); see also J.A. 307. Appellees also maintained Appellant's claims were nonjusticiable under Feres v. United States,340 ...

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