Frederick Aikens v. William Ingram, Jr.
Filing
AMENDED OPINION filed amending and superseding opinion dated 01/29/2016. Originating case number: 5:11-cv-00371-BO. Copies to all parties. [14-2419]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2419
FREDERICK AIKENS,
Plaintiff - Appellant,
v.
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.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-cv-00371-BO)
Argued:
December 9, 2015
Amended:
Decided:
January 29, 2016
February 1, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by published opinion.
in which Judge King joined.
concurring opinion.
Judge Thacker wrote the opinion,
Judge Shedd wrote a separate
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
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Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.
2
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THACKER, Circuit Judge:
Colonel Frederick Aikens (“Appellant”) challenges the
district
§ 1983
court’s
claim
in
grant
favor
of
summary
of
two
judgment
his
42
U.S.C.
members
former
on
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
reviewability
Cir.
of
1971)
claims
(providing
based
on
a
four-factor
internal
military
test
for
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 (1950).
I.
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.
3
3d
562,
565-66
(E.D.N.C.
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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
dignity and respect and should not be promoted.”
Jess
appealed
the
OER
to
Ingram,
stating
that
everyone
with
J.A. 246. 1
Von
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
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
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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
2
with
women.
The
DAIG
The emails are not included in the record, but according
to Jones and McCarthy, they included “interesting traffic,”
i.e., emails to “women [who] were [not Appellant’s] wife,” and
emails that indicated that Appellant “seemed to be plotting to
overthrow [Ingram].”
J.A. 264-65 (internal quotation marks
omitted).
Appellant
classifies
the
emails
as
personal
correspondence with his family, church members, and his wife,
specifically, “traffic between my wife and I that only a husband
and wife should see.” Id. at 296.
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concluded that Jones and McCarthy improperly browsed Appellant’s
email, but it nonetheless used the information in the emails to
find
six
part.
instances
of
active
duty
misconduct
on
Appellant’s
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,
Honoré
withdrew
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.
Appellant
maintains
that
von
Jess
and
Ingram
Specifically,
authorized
and
directed McCarthy and Jones to monitor Appellant’s emails and
send incriminating emails to von Jess.
Appellees
Appellant’s
claims
moved
failed
for
for
summary
several
3
judgment,
reasons.
Appellant also brought a North Carolina
privacy claim, but he has since abandoned it.
6
asserting
They
argued
invasion
of
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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 for authorized
U.S.
government
unauthorized,”
use”;
use
constituted
of
the
“consent
system,
to
“authorized
monitoring”;
and
or
“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 U.S. 135
(1950).
The district court ultimately agreed that Appellant’s
claims were nonjusticiable, albeit under the framework 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
judgment.
affairs),
and
granted
Appellees’
motion
for
summary
Appellant timely noted this appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We
review
the
district
court’s
grant
of
summary
judgment de novo, “drawing reasonable inferences in the light
most favorable to the non-moving party.”
7
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Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal
quotation
marks
omitted).
“The
court
shall
grant
summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(a).
III.
We consider de novo the threshold legal question of
whether the district court properly abstained from ruling on
Appellant’s claims.
See Cioca v. Rumsfeld, 720 F.3d 505, 508
n.4 (4th Cir. 2013) (describing the applicability of Feres v.
United States, 340 U.S. 135 (1950), as a “threshold question”);
see also VonRosenberg v. Lawrence, 781 F.3d 731, 734 (4th Cir.
2015) (applying de novo review to abstention questions).
We first recognize that, at this juncture, Appellant
is seeking only “damages against [Appellees] in their individual
capacities.”
Appellant’s Br. 22.
Although in his opening brief
Appellant claims to seek “a declaration that Appellees’ actions
be
declared
unlawful
under
the
Fourth
Amendment,”
id.,
he
abandons any claim for equitable relief in his reply brief, see
Appellant’s Reply Br. 8 (“Col. Aikens’s claims for damages . . .
are the only claims he appeals.”); see also Oral Argument at
8:50-9:15,
Aikens
v.
Ingram,
No.
8
14-2419
(Dec.
9,
2015),
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at
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http://www.ca4.uscourts.gov/oral-argument/listen-
to-oral-arguments. 4
A.
The
district
court
granted
summary
judgment
on
Appellant’s claim for equitable relief by relying on the Fifth
Circuit’s decision in Mindes v. Seaman, 453 F.2d 197 (5th Cir.
1971), which provides a four-factor test for reviewability of
claims based on internal military affairs.
See also Williams v.
Wilson, 762 F.2d 357, 359 (4th Cir. 1985) (adopting the Mindes
test
where
a
servicemember
challenged
the
National
Guard’s
empaneling of a selective retention board).
The
parties
agree
that
Mindes
has
traditionally
applied to actions seeking equitable relief, not damages.
See
Appellees’ Br. 40 (observing that this court has “adopted the
use of the Mindes test in reviewing matters requesting equitable
relief in
military
actions”
(emphasis
supplied));
Appellant’s
Reply Br. 8 (“Mindes applies only to equitable relief.”).
Thus,
since Appellant has abandoned his claim for equitable relief,
the
logical
conclusion
is
that
Mindes
has
no
place
in
our
analysis.
4
Appellant likewise fails to challenge the district court’s
decision that he cannot collect damages from Appellees in their
official
capacities
pursuant
to
the
Eleventh
Amendment;
therefore, this argument is waived.
See Yousefi v. INS, 260
F.3d 318, 326 (4th Cir. 2001).
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However,
some
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courts,
including
our
own,
have
sent
mixed signals regarding whether Mindes applies to claims seeking
damages.
See, e.g., Wilt v. Gilmore, 62 F. App’x 484, 487 (4th
Cir. 2003) (per curiam) (relying on Mindes, affirming dismissal
of racial discrimination claims for $2.5 million in compensatory
damages
against
Virginia
National
Guard
officers
because
appellant did not exhaust administrative remedies); Holdiness v.
Stroud, 808 F.2d 417, 422-23 (5th Cir. 1987) (applying Mindes
test to § 1983 action seeking $1 million in damages).
Without
Mindes
test
particular
in
case,
passing
this
the
on
the
circuit, 5
test
we
is
an
continued
only
ill
viability
observe
fit.
that
Our
of
in
the
this
published
decisions applying the Mindes test dealt with internal personnel
matters such as challenges to convening of retention boards and
military discharge.
See Williams, 762 F.2d at 359; Guerra v.
5
Since we adopted the Mindes test in Williams, we have
applied it only once in a published opinion.
See Guerra v.
Scruggs, 942 F.2d 270, 276 (4th Cir. 1991) (applying Mindes test
to declare unreviewable a servicemember’s challenge to his
military discharge).
Other circuits have rejected the Mindes
test outright. See, e.g., Knutson v. Wisconsin Air Nat’l Guard,
995 F.2d 765, 768 (7th Cir. 1993) (“We disagree with . . . the
adoption of the four-factor analysis in Mindes.
As the Third
Circuit has pointed out, the Mindes approach erroneously
‘intertwines the concept of justiciability with the standards to
be applied to the merits of the case.’” (footnote omitted)
(quoting Dillard v. Brown, 652 F.2d 316, 323 (3d Cir. 1981));
accord Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1512
(D.C. Cir. 1989).
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Scruggs, 942 F.2d 270, 276 (4th Cir. 1991).
markedly different.
The case at hand is
Appellant alleges unconstitutional, ultra
vires actions by National Guard officers against Appellant while
he was serving in a federal capacity.
As such, the Mindes test
has no place.
B.
Nonetheless,
we
must
address
whether
Feres
bars
Appellant from seeking damages under 42 U.S.C. § 1983.
1.
Originally, Feres stood for the proposition that the
Government
is
not
liable
under
the
Federal
Tort
Claims
Act
(“FTCA”) “for injuries to servicemen where the injuries arise
out of or are in the course of activity incident to service.”
340 U.S. at 146 (the “Feres ‘incident to service’ test” or the
“Feres test”); see also United States v. Johnson, 481 U.S. 681,
690
(1987)
(reaffirming
the
holding
in
Feres
because
“suits
brought by service members against the Government for injuries
incurred incident to service . . . are the type[s] of claims
that, if generally permitted, would involve the judiciary in
sensitive military affairs at the expense of military discipline
and
effectiveness.”
(alteration
in
original)
(emphasis,
citation, and internal quotation marks omitted)).
Subsequently,
the
Supreme
Court
extended
the
Feres
“incident to service” test to causes of action outside the FTCA
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realm, including claims against federal officials pursuant to
Bivens
v.
Six
Unknown
Named
Agents
Narcotics, 403 U.S. 388 (1971).
of
Federal
Bureau
of
See, e.g., Chappell v. Wallace,
462 U.S. 296, 300 (1983) (relying on Feres, holding that it
would be inappropriate to provide enlisted military personnel a
Bivens
remedy
against
their
superior
officers,
explaining,
“[c]ivilian courts must, at the very least, hesitate long before
entertaining a suit which asks the court to tamper with the
established relationship between enlisted military personnel and
their superior officers”); United States v. Stanley, 483 U.S.
669, 684 (1987) (where servicemember sued military officers for
giving
him
LSD
as
part
of
an
Army
experiment,
holding,
“no
Bivens remedy is available for injuries that ‘arise out of or
are in the course of activity incident to service’” (quoting
Feres, 340 U.S. at 146)).
Although Stanley clarified that the Feres “incident to
service”
Bivens,
Chappell
test
the
and
is
applicable
Supreme
Court
Stanley
and
to
has
constitutional
not
applied
extended
the
test
claims
the
to
under
reasoning
of
constitutional
claims brought against state officers under 42 U.S.C. § 1983.
Nor have we.
done so.
Cir.
See, e.g., Newton v. Lee, 677 F.3d 1017, 1025 (10th
2012);
Affairs,
Almost all of our sister circuits, however, have
487
Matreale
F.3d
v.
150,
N.J.
Dep’t
154
(3d
12
of
Cir.
Military
2007);
&
Veterans
Speigner
v.
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Alexander, 248 F.3d 1292, 1295 (11th Cir. 2001); Jones v. N.Y.
State Div. of Military & Naval Affairs, 166 F.3d 45, 51 (2d Cir.
1999); Bowen v. Oistead, 125 F.3d 800, 803 & n.2 (9th Cir.
1997); Wright v. Park, 5 F.3d 586, 591 (1st Cir. 1993); Knutson
v. Wisc. Air Nat’l Guard, 995 F.2d 765, 770 (7th Cir. 1993);
Watson v. Ark. Nat’l Guard, 886 F.2d 1004, 1007 (8th Cir. 1989);
Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1036 (5th Cir.
1986); see also Bois v. Marsh, 801 F.2d 462, 470 (D.C. Cir.
1986) (applying Feres to an intramilitary damages action under
42 U.S.C. § 1985(3)).
2.
We join our sister circuits in extending the Feres
“incident to service” test to § 1983 actions.
supported
by
Supreme
Court
jurisprudence
This result is
and
respects
the
delicate separation of powers necessary for smooth and effective
military governance.
First,
address
because
constitutional
suits
under
infringements
both
by
§ 1983
and
government
Bivens
officials,
the Supreme Court’s holding in Stanley is logically applicable
to § 1983 claims against state officials.
Indeed, the Court has
declared, “[I]n the absence of congressional direction to the
contrary, there is no basis for according to federal officials a
higher
degree
constitutional
of
immunity
infringement
from
as
13
liability
authorized
when
by
sued
Bivens
for
than
a
is
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accorded state officials when sued for the identical violation
under § 1983.”
This
involving
Butz v. Economou, 438 U.S. 478, 500 (1978).
precept
National
is
Guard
especially
service
important
members,
as
§
in
1983
a
case
actions
would create the same “degree of disruption” to Guard affairs as
Bivens actions would to “military discipline and decisionmaking
. . . [in a federalized] military regime.”
682-83.
Stanley, 483 U.S. at
The Second Circuit explained,
absent
some
reasoned
distinction,
justiciability
of
constitutional
tort
actions
incident
to
federal
and
state
military service should be co-extensive.
This is particularly true in light of the
central role the National Guard plays in the
national defense and the close working
relationship between the National Guard and
the United States Army. The policy concerns
are the same in both contexts.
Allowing
§ 1983 actions based on injuries arising
incident to service in the Guard would
disrupt
military
service
and
undermine
military discipline to the same extent as
allowing Bivens actions based on injuries
arising incident to service in the United
States Army.
Jones, 166 F.3d at 51-52.
We find this reasoning sensible and
persuasive.
Second, we generally decline to expand liability for
injuries arising from military service so as not to tread on the
delicate balance of power among the branches of government.
The
Supreme Court has cautioned against interference with military
disputes in the absence of explicit congressional approval.
14
See
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of
Filed: 02/01/2016
Navy
Congress
v.
Egan,
484
specifically
Pg: 15 of 24
U.S.
has
518,
530
provided
(1988)
(“[U]nless
otherwise,
courts
traditionally have been reluctant to intrude upon the authority
of the Executive in military . . . affairs.”); Feres, 340 U.S.
at 146 (declining to draw out a cause of action against military
personnel
under
the
FTCA
“absen[t]
express
congressional
command”).
Likewise,
actions
for
this
damages
circuit
in
has
military
been
wary
contexts.
of
In
endorsing
Lebron
v.
Rumsfeld, for example, a designated enemy combatant and al Qaeda
member, Jose Padilla, alleged numerous constitutional violations
at
the
hands
of
military
officers,
including
torture
unlawful designation and detention of enemy combatants.
F.3d 540, 546-47 (4th Cir. 2012).
and
See 670
Padilla urged this court to
imply a new Bivens cause of action for money damages against DOD
officials based on “a range of policy judgments pertaining to
the designation and treatment of enemy combatants.”
Declining
to
do
so,
we
noted
the
“explicit
Id. at 547.
constitutional
delegation of control over military affairs” to the political
branches
“whenever
of
government.
the
Supreme
Id.
Court
at
has
549.
We
considered
also
a
observed,
Bivens
case
involving the military, it has concluded that ‘the insistence
. . . with which the Constitution confers authority over the
Army,
Navy,
and
militia
upon
the
15
political
branches
.
.
.
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counsels hesitation in our creation of damages remedies in this
field.’”
Id.
at
550
(quoting
Stanley,
483
U.S.
at
682)
(alterations in original)); see also Cioca v. Rumsfeld, 720 F.3d
505,
510
(4th
Cir.
2013)
(where
current
and
former
service
members alleged they were victims of rape and sexual harassment
during
military
service,
holding
that
no
Bivens
remedy
was
available, explaining, “It is clear that expansion of a Bivensbased
cause
of
action
[for
monetary
damages
in
a
military
context] is the exception, not the rule.”).
We
see
no
reason,
then,
to
allow
damages
actions
pursuant to § 1983 against state officials for injuries suffered
incident
to
service
--
that
the
Supreme
Court
has
expressly
foreclosed against federal officials -- when Congress has not
expressly
authorized
them.
Cf.
Crawford,
794
F.2d
at
1036
(“Section 1983 . . . claims, like those predicated on Bivens,
invite judicial second-guessing of military actions and tend to
overlap
the
remedial
structure
service . . . .” (emphasis supplied)).
created
within
each
We thus join our sister
circuits in applying the Feres test to § 1983 suits for damages
based on injuries sustained incident to service.
3.
We now address whether the Feres “incident to service”
test bars relief in the case at hand.
To do so, we ask whether
the injuries of which Appellant complains -- search and seizure
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of his emails in violation of the Fourth Amendment -- “ar[o]se
out of or [we]re in the course of activity incident to service.”
Feres, 340 U.S. at 146; Cioca, 720 F.3d at 511.
In the nearly 70 years since the decision, Feres and
its progeny have failed to produce a specific element-based or
bright-line rule regarding what type of conduct is “incident to
service.”
See United States v. Shearer, 473 U.S. 52, 57 (1985)
(“The Feres
doctrine
rules . . . .”).
cannot
be
reduced
to
a
few
bright-line
Indeed, the Supreme Court “explicitly rejected
a ‘special factors’ analysis which would consider how military
discipline would actually be affected in a particular case.”
Ricks
v.
Nickels,
(discussing
“whether
Cioca,
Stanley,
‘particular
discipline
inquiry
295
and
into,
720
483
F.3d
1124,
U.S.
at
suits
would
decisionmaking
and
F.3d
at
hence
515
681).
call
(quoting
(10th
Rather,
Cir.
we
2002)
look
to
into
question
military
would]
[and
intrusion
(alteration in original).
1130
require
judicial
upon,
military
Stanley,
483
matters.’”
U.S.
at
682)
In other words, “where a complaint
asserts injuries that stem from the relationship between the
plaintiff
and
the
plaintiff’s
service
in
‘incident to service’ test is implicated.”
the
military,
the
Id.
If this explanation sounds broad and amorphous, it is.
Feres
has
grown
so
broad
that
this
court
once
noted,
“the
Supreme Court has embarked on a course dedicated to broadening
17
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the Feres
Filed: 02/01/2016
doctrine
to
Pg: 18 of 24
encompass,
at
a
minimum,
all
injuries
suffered by military personnel that are even remotely related to
the individual’s status as a member of the military.”
Stewart
v. United States, 90 F.3d 102, 105 (4th Cir. 1996) (quoting
Major v. United States, 835 F.2d 641, 6644 (6th Cir. 1987))
(alteration
omitted)
(emphases
in
original);
see
also
Erwin
Chemerinsky, Federal Jurisdiction 622 (5th ed. 2007) (“The law
is
now
settled
constitutional
matter
how
that
Bivens
violations
severe
the
suits
arising
injury
are
from
or
never
permitted
military
how
service,
egregious
the
for
no
rights
infringement.”).
Along
these
lines,
we
know
that
the
situs
of
the
injury is not as important as “whether the suit requires the
civilian
court
to
second-guess
military
decisions
.
.
.
and
whether the suit might impair essential military discipline.”
Shearer, 473 U.S. at 57.
We also know that a plaintiff need not
be on duty, see id. (Feres barred suit where off-duty soldier
was injured off-base by another soldier), and application of the
Feres test does not depend on the military status of the alleged
offender, see United States v. Johnson, 481 U.S. 681, 686 (1987)
(“[T]his Court has never suggested that the military status of
the
alleged
doctrine.”).
tortfeasor
We
do
is
not
crucial
even
to
need
the
to
application
inquire
of
the
“whether
the
discrete injuries to the victim were committed in support of the
18
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military mission.”
Pg: 19 of 24
Cioca, 720 F.3d at 515 (internal quotation
marks omitted).
Indeed,
“Incident to service” is not, of course, a
narrow term restricted to actual military
operations such as field maneuvers or small
arms instruction.
It has been held that a
member
of
the
military
is
engaged
in
activity incident to his military service
when
he
is
enjoying
a
drink
in
a
noncommissioned officers club, and when he
is
riding
a
donkey
during
a
ballgame
sponsored by the Special Services division
of a naval air station, and while swimming
in a swimming pool at an airbase.
Hass for Use & Benefit of U.S. v. United States, 518 F.2d 1138,
1141 (4th Cir. 1975) (internal citations omitted) (holding that
Feres
barred
suit
when
an
active-duty
serviceman,
who
was
temporarily on off-duty status, was injured when riding a horse
he rented from a Marine Corps stable at Cherry Point military
base).
As one might imagine, decisions on this point have run
the gamut.
Compare Stewart, 90 F.3d at 104-05 (concluding that
appellant’s injuries from a car accident with another service
member were “incident to service” where appellant “was on active
duty at the time of the accident”; “the collision occurred on
the grounds of a military base”; and appellant “was engaged in
activity
directly
related
to
the
performance
of
military
obligations when he was injured”); with Ricks, 295 F.3d at 1132
(Ricks’s injuries were “incident to service,” even though he had
19
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Pg: 20 of 24
been fully discharged and was in a military prison at the time
of
the
injuries,
because
he
was
incarcerated
for
offenses
committed during active duty).
Against
this
backdrop,
we
readily
conclude
that
Appellant’s alleged injuries arose out of activity incident to
service.
Appellant was on active duty, deployed in a war zone,
and
a
used
personnel
computer
deployed
system
at
set
Camp
up
Doha.
by
the
His
DOD
for
computer
military
usage
was
indisputably regulated by AR 380-19, which clearly stated that
the system was to be used “only for authorized U.S. government
use”;
use
constituted
of
the
“consent
system,
to
“authorized
monitoring”;
or
“all
and
unauthorized,”
communications
over the DOD system [could] be monitored.”
J.A. 307.
Taking
Appellant’s allegations as true, Ingram and von Jess directed
Jones and McCarthy to monitor Appellant’s emails on this DOD
computer system and forward them along because they wished to
enact revenge against him.
“egregious
.
.
.
Appellant may claim that this is an
infringement”
of
his
rights,
Chemerinsky,
Federal Jurisdiction at 622, but there is no question that the
alleged infringement occurred incident to Appellant’s military
service.
That Appellant was a National Guardsman serving in a
federal capacity does not change the result.
It is true that
when National Guardsmen are called to active duty, they “lose
20
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Pg: 21 of 24
their status as members of the state militia . . . .”
Perpich
v.
(1990).
Department
of
Defense,
496
U.S.
334,
347
Nonetheless, Feres has barred suit where a member of the state’s
National Guard, but also a dual-status federal technician, sued
the state adjutant general under § 1983 for conduct occurring
when he was serving in both capacities.
See Walch v. Adjutant
Gen.’s Dep’t of Texas, 533 F.3d 289, 296 (5th Cir. 2008); see
also Misko v. United States, 453 F. Supp. 513, 514 (D.D.C. 1978)
(“[T]here
is
no
longer
any
question
that
Feres
applies
with
equal force to members of the National Guard whose injuries are
incident
to
similarly
active
military
explained
that
duty.”).
“concern
The
for
Third
Circuit
the
disruption
of
has
the
unique relationship of military personnel to their superiors and
to other military personnel” could result “if one could hale
another into court as a result of activity incident to military
service.”
Matreale
v.
N.J.
Dep’t
of
Military
Affairs, 487 F.3d 150, 158 (3d Cir. 2007).
&
Veterans
And we agree this
concern is “equally as compelling in the context of lawsuits
brought by [full-time state duty] guardsmen . . . as it is in
the
context
guardsmen.”
of
direct
brought
by
[federal
active
duty]
of
email
Id.
Nor
monitoring
lawsuits
does
and
chain
it
matter
forwarding,
of
command.
that
at
Appellees
See
21
the
were
Stanley,
time
not
483
in
U.S.
the
Appellant’s
at
680-81
Appeal: 14-2419
Doc: 31
(“Feres did
crucial,
Filed: 02/01/2016
not
but
consider
established
the
Pg: 22 of 24
officer-subordinate
instead
[the]
relationship
‘incident
to
service’
test . . . .”); cf. Johnson, 481 U.S. at 686 (“[T]his Court has
never
suggested
that
the
military
status
of
the
alleged
tortfeasor is crucial to the application of the doctrine.”).
For
Appellant’s
these
§
1983
reasons,
claim
based
we
abstain
on
the
from
Feres
reviewing
“incident
to
service” test, and we thus affirm, albeit on other grounds, the
district court’s dismissal of this case.
IV.
Based on the foregoing, the judgment of the district
court is
AFFIRMED.
22
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Pg: 23 of 24
SHEDD, Circuit Judge, concurring:
I
agree
service”
test
with
the
majority
warrants
our
that
the
abstention
Feres
from
“incident
reviewing
to
Aikens’
§ 1983 claim. Although that determination is dispositive of this
appeal, I write briefly to express my view that even if Feres
were inapplicable, the summary judgment is affirmable based on
Aikens’ failure to present sufficient evidence to withstand the
summary judgment motion.
Aikens’ § 1983 claim is based on his contention that Ingram
and von Jess violated his Fourth Amendment rights, and Aikens
“grounds
his
Fourth
Amendment
claims
in
[their]
personal
involvement in the searches and seizures of his emails.” Reply
Brief, at 12. In moving for summary judgment, Ingram and von
Jess presented evidence showing that they were not personally
involved
in
the
email
monitoring.
Despite
having
had
ample
opportunity, Aikens has failed to present any evidence to create
a
genuine
issue
of
material
fact
tending
to
show
otherwise.
Instead, as the district court found, the record establishes
that
Ingram
and
von
Jess
“were
not
involved,
directly
or
indirectly, in the [email] monitoring,” and “[n]o evidence has
been presented that demonstrates either defendant knew how the
emails were obtained. . . .” Aikens v. Ingram, 71 F.Supp.3d 562,
571-72 (E.D.N.C. 2014).
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Pg: 24 of 24
Aikens’ entire case is premised on conclusory allegations
and speculation. Of course, such “evidence” is insufficient to
withstand
summary
judgment.
Humphreys
&
Partners
Architects,
L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015).
Accordingly, Aikens’ § 1983 claim fails as a matter of law. For
this
reason,
in
addition
to
the
Feres
“incident
to
test, I believe the summary judgment should be affirmed.
24
service”
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