Aikens v. Ingram et al
ORDER GRANTING 53 Defendants' Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 12/2/2014. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILLIAM E. INGRAM, JR., individually )
And in his capacity as Adjutant General of )
NATIONAL GUARD and PETER VON
JESS, individually and in his capacity as
Lieutenant Colonel of the NORTH
CAROLINA NATIONAL GUARD,
This cause comes before the Court on defendants' motion for summary judgment, to
which the plaintiffhas responded in opposition. [DE 53, 60]. A hearing was held before the
undersigned on November 10, 2014, in Elizabeth City, North Carolina, and the matter is ripe for
ruling. For the reasons discussed below, defendants' motion is GRANTED.
Plaintiff originally filed this action alleging a civil rights claim pursuant to 24 U.S.C. §
1983 and a state law tort claim for invasion of privacy. Plaintiff clarified in his motion to dismiss
that he has not brought a state law claim for invasion of privacy, thus only the§ 1983 claim
remains before the Court. [DE 10 at 20]. Plaintiff was a longtime member of the North Carolina
Army National Guard, who in 2001, was called to active duty in support of the War Against
Terrorism and prompted to full Colonel and Commander ofthe 139th Rear Operations center. In
December 2002, plaintiff was instructed to complete an officer evaluation report of defendant
Von Jess. Defendant Ingram later invalidated that report, and plaintiff filed a complaint
regarding defendant Ingram's actions with the Department of the Army Inspector General
("DAIG"). In January 2003, plaintiffs unit was again called to active duty and deployed to
Camp Doha, Kuwait. On or about November 24, 2003, plaintiff was notified that defendant
Ingram had used illegal means to obtain emails sent to plaintiffs personal email account and
plaintiff alleges that beginning in May 2003, through December 2003, the email account he
accessed while deployed was monitored, intercepted, and forwarded to defendant Von Jess. In
May 2004, plaintiff was notified that he was being investigated for hostile command climate and
inappropriate relations with women. A DAIG investigation subsequently substantiated plaintiffs
allegations that his email was improperly browsed in violation of Army regulations, but
determined that the information contained in the email could be used in the investigation. [DE 21 at 2-3]. The DAIG subsequently found six allegations of active duty misconduct by plaintiff
were substantiated, and provided its findings to the North Carolina Governor and to defendant
Ingram. [DE 55-1 at 10-13). In June 2005, defendant Ingram forwarded the findings to the
Commander, First U.S. Army Lieutenant General. [!d. at 14]. The following month, the
Lieutenant General withdrew federal recognition from plaintiff. [!d. at 15-16]. On July 28, 2005,
plaintiff waived a hearing on this withdrawal of federal recognition and elected to transfer to the
retired reserve. [!d. at 19].
Plaintiff filed a civil action in this Court on April 27, 2006, alleging the same claims as
here, as well as a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). No. 5:06-CV-185-D. By order entered September 13,2007, this
Court dismissed plaintiffs amended complaint without prejudice so plaintiff could first pursue
his military administrative remedy. Plaintiff did so, and the Army Board for Correction of
Military Records ("ABCMR") determined it lacked jurisdiction to hear plaintiffs claims.
Plaintiff then returned to this Court on March 31, 2008, by filing a motion pursuant to
Federal Rule of Civil Procedure 60(b)(6) in his earlier filed action. This Court denied Plaintiffs
Rule 60(b) motion. Plaintiff appealed, and this Court's denial was affirmed first by panel
opinion, Aikens v. Ingram, 612 F.3d 285 (4th Cir. 2010), then subsequently by a published split
en bane opinion filed July 13,2011, Aikens v. Ingram, 652 F.3d 496 (4th Cir. 2011) (en bane).
Two days later, plaintiff filed the instant action. [DE 1]. Defendants filed a motion to dismiss
[DE 8] over plaintiffs opposition [DE 10]. This Court granted the motion to dismiss, finding
that plaintiffs complaint was filed outside the applicable statute of limitations. [DE 11]. Plaintiff
appealed, and a panel of the Fourth Circuit Court of Appeals reversed the Court's order. Aikens
v. Ingram, 524 F. App'x 873 (4th Cir. 2013). Once the case was reopened, defendants filed a
motion asking the Court to rule on their remaining grounds for dismissal [DE 33], which plaintiff
opposed [DE 41]. On February 4, 2014, this Court denied defendants' motion to dismiss. [DE
50]. After the discovery period concluded, defendants filed a motion for summary judgment [DE
53], which plaintiff opposes [DE 60].
Plaintiff seeks (1) a declaration that each defendant's actions were unlawful; (2) to enjoin
each defendant from such illegal conduct in the future; (3) to enjoin each defendant from
retaliating against him; (4) to mandate reinstatement of plaintiffs military fringe benefits and
seniority rights; and (5) damages including but not limited to his back wages.
Summary judgment is proper only when, viewing the facts in the light most favorable to
the non-moving party, there is no genuine issue of material fact, and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Cox v. Cnty. of Prince William, 249 F.3d 295,299 (4th Cir. 2001). An issue is "genuine"
if a reasonable jury, based on the evidence, could find in favor of the non-moving party.
Anderson v. LibertyLobby, Inc., 477 U.S. 242,248 (1986); Cox, 249 F.3d at 299. The moving
party always bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex, 477 U.S. at 322-23. Ifthat burden has been met, the non-moving party must then
come forward and establish the specific material facts in dispute to survive summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (2010) .. Once a motion
for summary judgment is properly made and supported, the non-moving party bears the burden
of production of evidence that creates an issue of material fact on an element essential to his case
and on which he will bear the burden of proof at trial. Celotex, 488 U.S. at 323. A non-movant
"may not rest upon mere allegations or denials," but rather must demonstrate that a triable issue
ofmaterial fact exists. Shaw v. Stroud, 13 F.3d 791,798 (4th Cir. 1994). "The mere existence of
a scintilla of evidence" in support of the nonmoving party's position, however, is not sufficient
to defeat a motion for summary judgment; "there must be evidence on which the [factfinder]
could reasonably find for the [nonmoving party]." LibertyLobby, 477 U.S. at 252. In determining
whether a genuine issue of material fact exists for trial, a trial court views the evidence and the
inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378
Members of the armed services may not maintain suits against the government for injuries
that "arise out of or in the course of activity incident to service." Feres v. United States, 340 U.S.
135, 145 (1950). The Feres doctrine applies to all suits for damages and extends to Bivens
actions. Chappell v. Wallace, 462 U.S. 296, 305 (1983); United States v. Stanley, 483 U.S. 669,
684 (1987). It is considered a doctrine of justiciability. See, e.g., Minns v. United States, 155
F.3d 445, 448-49 (4th Cir. 1998); Williams v. Wilson, 762 F.2d 357, 360 (4th Cir. 1985)
(extending Feres doctrine to cases involving equitable relief as discussed infra, via Mindes v.
Seaman, 453 F.2d 197 (5th Cir. 1971)). The Feres exception applies to discourage courts from
"tamper[ing] with the established relationship between enlisted military personnel and their
superior officers" because "that relationship is at the heart of the necessarily unique structure of
the Military Establishment." Chappell, 462 U.S. at 300.
In this case, plaintiff in this case seeks both equitable relief and damages. 1 When addressing
the justiciability in the context of non-Bivens actions against military officers, the Fourth Circuit
applies the four-part test outlined in Mindes, 453 F.2d at 201-02 (5 1h Cir. 1971) Under the
Mindes test, a civilian court should not review internal military affairs "in the absence of (a) an
allegation of the deprivation of a constitutional right or an allegation that the military has acted in
violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice
corrective measures." !d. at 201. If a plaintiff meets these requirements, the court should use a
four-part balancing test to determine the justiciability of the case by considering: "(I) the nature
and strength of the plaintiffs challenge to the military determination ... ; (2) the potential
injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with
the military function; and (4) the extent to which the exercise of military expertise or discretion
is involved." !d. at 201-02.
It is worth noting that this Court dismissed a companion case stemming pursuant to the
Mindes doctrine in 2005. Culbreth v. Ingram, 389 F. Supp. 2d 668 (E.D.N.C. 2005). Major
Plaintiff acknowledges that the Eleventh Amendment protects defendants from suit for federal
damages in their official capacities. Will v. Michigan Dep 't ofState Police, 491 U.S. 58, 71
(1989); see also, Part II, infra, discussing sovereign immunity.
Culbreth was a correspondent to plaintiffs military work station computer in Kuwait whose
emails were discovered during the same monitoring at issue in this case. Jd at 671. Based on the
content of the emails he sent, Major Culbreth was dismissed from the North Carolina National
Guard before qualifying for any U.S. Army retirement. !d. at 676. Major Culbreth asserted a very
similar Fourth Amendment claim to the one at issue here, and the Court dismissed the case as
non-justiciable under Mindes. !d. at 678.
Plaintiff alleges deprivation of his constitutional rights, thereby meeting Mindes 's first
threshold requirement. Mindes also requires "exhaustion of available intraservice corrective
measures." 453 F.2d at 201. Plaintiff exhausted his intraservice remedies by going to the
ABCMR, which determined that it could not afford him the relief he seeks. Accordingly,
plaintiff meets the threshold requirements of Mindes, and the Court's analysis moves on to the
justiciability of plaintiffs case under the four-part balancing test.
The first factor involves the nature and strength of plaintiffs challenge to the military
determination. Mindes, 453 F.2d at 201-02. Constitutional issues are considered more important
than statutory or regulatory claims for purposes of the Mindes analysis. !d. at 201. Plaintiff raises
a Fourth Amendment claim in his complaint that hinges on whether he had a legitimate
expectation of privacy in the personal email account he accessed from a military computer while
deployed in Kuwait.
Plaintiffs Fourth Amendment claim is weak. The Fourth Amendment protects the right of
people to be secure in their "persons, houses, papers, and effects" from unreasonable searches
and seizures. A search occurs for purposes of the Fourth Amendment when the governrnent
violates a person's reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360
(1967) (Harlan, J., concurring). It is well settled that public employees have a reasonable
expectation of privacy in their workplace. See, e.g., 0 'Connor v. Ortega, 480 U.S. 709, 717
( 1987). The 0 'Connor Court noted, however, that "[p]ublic employees' expectations of privacy
in their offices, desks, and file cabinets, like similar expectations of employees in the private
sector, may be reduced by virtue of actual office practices and procedures, or by legitimate
regulation." !d. The Fourth Circuit more recently acknowledged that the workplace privacy
limitation extends to internet communications. United States v. Simmons 206 F.3d 392, 398 (4th
Cir. 2000). Where an employer's internet policy "placed employees on notice that they could not
reasonably expect that their Internet activity would be private," an employee's subjective belief
that his internet activity was private was not "objectively reasonable." !d.
The evidence is undisputed that Army Regulation 3 80-19 was in effect at the time of the
email monitoring in question. Army Regulation 3 80-19 states that:
Notification procedures, per AR 380-53, will be established to ensure that all users of official
DOD systems within the Army understand that their use of DOD systems constitutes consent
to security monitoring. The following banner will be included as part of the log-on screens on
all computer systems:
THIS IS A DOD COMPUTER SYSTEM. BEFORE PROCESSING CLASSIFIED
INFORMATION, CHECK THE SECURITY ACCREDITATION LEVEL OF THIS
SYSTEM. DO NOT PROCESS, STORE, OR TRANSMIT INFORMATION CLASSIFIED
ABOVE THE ACCREDITATION LEVEL OF THIS SYSTEM. THIS COMPUTER
SYSTEM, INCLUDING ALL RELATED EQUIPMENT, NETWORKS AND NETWORK
DEVICES (INCLUDES INTERNET ACCESS) ARE PROVIDED ONLY FOR
AUTHORIZED U.S. GOVERNMENT USE. DOD COMPUTER SYSTEMS MAY BE
MONITORED FOR ALL LAWFUL PURPOSES, INCLUDING TO ENSURE THEIR USE
IS AUTHORIZED, FOR MANAGEMENT OF THE SYSTEM, TO FACILITATE
PROTECTION AGAINST UNAUTHORIZED ACCESS, AND TO VERIFY SECURITY
PROCEDURES, SURVIVABILITY, AND OPERATIONAL SECURITY. MONITORING
INCLUDES, BUT IS NOT LIMITED TO, ACTIVE ATTACKS BY AUTHORIZED DOD
ENTITIES TO TEST OR VERIFY THE SECURITY OF THIS SYSTEM. DURING
MONITORING, INFORMATION MAY BE EXAMINED, RECORDED, COPIED, AND
USED FOR AUTHORIZED PURPOSES. ALL INFORMATION, INCLUDING
PERSONAL INFORMA TJON, PLACED ON OR SENT OVER THIS SYSTEM MAY BE
MONITORED. USE OF THIS DOD COMPUTER SYSTEM, AUTHORIZED OR
UNAUTHORIZED, CONSTITUTES CONSENT TO MONITORING. UNAUTHORIZED
USE OF THIS DOD COMPUTER SYSTEM MAY SUBJECT YOU TO CRIMINAL
PROSECUTION. EVIDENCE OF UNAUTHORIZED USE COLLECTED DURING
MONITORING MAY BE USED FOR ADMINISTRATIVE, CRIMINAL, OR OTHER
ADVERSE ACTION. USE OF THIS SYSTEM CONSTITUTES CONSENT TO
MONITORING FOR ALL LAWFUL PURPOSES.
Accordingly plaintiff was on notice that his email would be monitored, and it would have
been unreasonable for him to expect his email to remain private. Moreover, although "the Fourth
Amendment protects people, not places," the forum in which a challenged activity occurs affects
what can reasonably be expected to remain private. Katz, 389 U.S. at 351. In a war zone, where
security is a primary concern, one would reasonably expect to enjoy less privacy than in one's
home away from the dangers of war. Given the security issues inherent in a war zone and the
notice plaintiff received that his email would be monitored, at minimum it is questionable
whether he could reasonably expect that the contents of his email would remain private.
Even if the Court found that he had a reasonable expectation of privacy in his email,
however, liability attaches under § 1983 only where a defendant "acted personally in the
deprivation of the plaintiffs rights. The doctrine of respondeat superior has no application under
this section." Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (quotation and citation
omitted). It is undisputed that neither defendant was present in Kuwait nor participated in the
email monitoring. A supervisor may be held individually liable for the unconstitutional acts of a
subordinate only where (1) the supervisor had actual or constructive knowledge that the
subordinate was engaged in conduct posing "a pervasive and unreasonable risk of constitutional
injury"; (2) the supervisor was deliberately indifferent to or tacitly authorized the conduct; and
(3) there exists an "affirmative causal link" between the supervisor's actions and the
constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4 1h Cir. 1994). At the hearing, plaintiffs
counsel conceded that there is no concrete evidence that defendant Von Jess was involved in the
email monitoring. The DAIG found that defendant Ingram properly forwarded the information
he received to those officers who had authority over plaintiff. [DE 55-1 at 11]. Moreover, as
discussed in section II, infra, defendants are entitled to both sovereign and qualified immunity.
Given the questionable nature of plaintiff's expectation of privacy, the inapplicability of
supervisory liability under§ 1983, and defendants' immunity, plaintiff's Fourth Amendment
claim is weak. The first Mindes factor therefore weighs against justiciability.
The second Mindes factor examines the potential injury to plaintiff if judicial review is found
inappropriate. Plaintiff waived the opportunity to contest the withdrawal of federal recognition.
He qualified for United States Army retirement in the grade of full Colonel, is on the Army
retired list, and is drawing federal retirement. Under federal law, plaintiff was required to retire
when he obtained his mandatory retirement date at thirty years of credible commissioned service.
10 U.S.C. § 14507. Though he was quite close to his mandatory retirement date, he had not
reached it when he retired, therefore his pay is lower than it would have been had he not retired
prior to his mandatory retirement date. It is clear, therefore, that plaintiff could suffer some
injury if judicial review is found inappropriate, and because the ABCMR determined it cannot
provide the relief he seeks, this Court may be plaintiff's only opportunity for relief. Accordingly,
the second Mindes factor weighs in favor of justiciability.
The third Mindes factor requires consideration of the type and degree of interference with
military function, while the fourth Mindes factor looks to the extent to which the exercise of
military discretion is involved. The two are generally considered together. Culbreth v. Ingram,
389 F. Supp. 2d 668, 676 (E.D.N.C. 2005). Here, review of plaintiff's claims would involve
substantial interference with military function. The DAIG inquiry concluded that defendants did
not act in error. [DE 55-1 at 11-13]. Plaintiff asks this Court to second guess the Army's
decision to consider the emails, find military misconduct in a combat zone, and as a result,
withdraw federal recognition. As in Culbreth, "this would involve the Court in a sensitive area
requiring military expertise and discretion." !d. at 677. The requested relief emphasizes the level
of interference with military function and exercise of military discretion at issue in this case.
Plaintiff wants the military to reinstate his benefits and award him back pay despite its finding
that he engaged in misconduct. In essence, plaintiff asks the military to exercise its discretion in
a manner diametrically opposed to its prior findings. The requested relief demonstrates that this
decision falls squarely within the discretion of the military. In an analogous case, the Fourth
Circuit held that the third and fourth Mindes factors weighed against review, as did this Court in
the companion case of Culbreth. Guerra v. Scruggs, 942 F.2d 270, 280 (4th Cir. 1991); Culbreth,
389 F. Supp. 2d at 677-78. This Court also finds that the third and fourth Mindes factors weigh
Here, three of the four Mindes factors weigh against judicial review. Accordingly, the Court
finds that the Mindes doctrine requires the Court to grant summary judgment in favor of
defendants for lack of jurisdiction. Although this means plaintiffs potential injury will go
without review, "the fact that the [Mindes] doctrine may in many cases lead to undeniably harsh
results does not relieve this court of its obligation to apply precedent." Appelhans v. United
States, 877 F.2d 309,313 (4th Cir. 1989).
In the alternative, even if judicial review were appropriate, sovereign immunity bars
relief against either defendant in his official capacity and qualified immunity bars relief against
monetary relief against either defendant in his individual capacity.
A. Sovereign Immunity
The Eleventh Amendment bars suit "in law or in equity" against the State or a state
official sued in his official capacity. The only exception is that provided in Ex Parte Young, 209
U.S. 123 (1908). Lytle v. Griffith, 240 F.3d 404,408 (4th Cir. 2001). Neither the State, nor a state
official sued in his official capacity is a "person" within the meaning of 42 U.S.C. § 1983,
therefore no money damages are available against either defendant in his official capacity. Will v.
Mich. Dep 't of State Police, 491 U.S. 58, 71 (1989); [D.E. 10 at 20] (conceding that Eleventh
Amendment bars plaintiffs request for damages against defendants in their official capacities).
Accordingly, plaintiff seeks no money damages from either defendant in his official
capacity, but argues that his requested equitable relief fits within the Ex Parte Young exception.
This requires that he prove (1) an ongoing violation of federal law; and (2) that the requested
relief is properly characterized as prospective. Verizon Md., Inc. v. Pub. Serv. Comm 'n of Md.
535 U.S. 635, 645 (2002). He cannot meet this burden.
Plaintiff fails to prove an ongoing violation of federal or constitutional law. The
monitoring of the workplace email records in question was a one-time occurrence in 2003. No
facts have been alleged that either defendant has taken similar action in the intervening decade as
to plaintiff. Neither has plaintiff alleged any facts that demonstrate either defendant is capable of
such prospective conduct as to him, since neither defendant is currently part of the North
Carolina National Guard. Nor has plaintiff proven that there is a National Guard practice that
requires his emails to be monitored in violation of the Fourth Amendment. Accordingly, there is
no basis on which to impose prospective injunctive relief against the National Guard or either
Plaintiff also fails to prove that the requested relief is prospective. By definition, a
declaration that past conduct was illegal is not prospective. Manning v. S.C. Dep 't of Highway
and Pub. Transp., 914 F.2d 44,48-49 (4th Cir. 1990). The individual defendants named herein
also lack the authority to restore plaintiffs benefits. His military service was terminated as a
result of federal United States Army action. Neither defendant is affiliated with the federal
government, thus they can neither undo these federal actions nor be ordered to do so. Plaintiff
concedes that defendants cannot reinstate any benefits or seniority rights. [DE 55-5 at 19].
Accordingly, plaintiffs requested relief does not fit within the exception outlined in Ex Parte
Young, and sovereign immunity bars any claims against defendants in their official capacities.
B. Qualified Immunity
Qualified immunity likewise bars any monetary relief against defendants in their
individual capacities. "[G]overnment officials performing discretionary functions generally are
granted a qualified immunity and are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal
citation and quotation omitted). Existing precedent must place the "constitutional question
beyond debate," leaving no doubt that the challenged action was unconstitutional. Braun v.
Maynard, 652 F.3d 557, 562 (4th Cir. 2011) (internal citation and quotation omitted). "For a
plaintiff to defeat a claim of qualified immunity, the contours of the constitutional right 'must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right."' Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013) (quoting Hope v. Pelzer, 536 U.S
730, 739 (2002)). When engaging in this analysis, a court looks to "the information possessed by
the ... officials and to what a reasonable officer would have concluded from that information."
Braun, 652 F.3d at 563. The immunity applies unless no reasonable lay person in defendant's
position "could have believed he had the right" to do what he did. Bland, 730 F.3d at 391.
Defendants are entitled to qualified immunity because they were not involved, directly or
indirectly, in the monitoring in Kuwait. Moreover, the DAIG's investigation concluded as much.
[DE 55-1 at 10-13]. The DAIG specifically found that defendant Von Jess's decision to forward
the documents to an Inspector General ("IG") did not violate federal law. [!d. at 12]. Commander
Ingram was shown the emails by the IG. He sought advice on what to do from United States
Army authorities, the Commanding General and the DAIG. No evidence has been presented that
he did other than those federal officers directed. No evidence has been presented that
demonstrates either defendant knew how the emails were obtained nor reasonably should have
understood that their actions violated the Fourth Amendment.
The objective reasonableness of defendants' actions is underscored by the fact that these
events took place in 2003. As late as 2010, there was a lack of clarity regarding privacy actions
in electronic workplace communications. Braun, 652 F.3d at 562-63; City of Ontario, Cal. v.
Quon, 560 U.S. 746, 759 (2010) ("The Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned
by a government employer. The judiciary risks error by elaborating too fully on the Fourth
Amendment implications of emerging technology before its role in society has become clear.").
The emails in this case occurred seven years prior to the Supreme Court's decision in Quon, at a
time when the reasonable expectation of privacy within the digital communication sphere was
even less well-resolved in both the court system and the perception of the public. In 2003, the
constitutionality or unconstitutionality of the email monitoring was by no means crystal clear.
Combined with the fact that defendants were not the ones monitoring the email, defendants are
entitled to qualified immunity. Accordingly, even if the Court had decided that it had
jurisdiction, plaintiff would be barred from relief against defendants in their official capacities by
the Eleventh Amendment and from monetary relief against defendants in their individual
capacities by qualified immunity.
For the aforementioned reasons, defendants' motion for summary judgment is
GRANTED. The Clerk is DIRECTED to close the file.
SO ORDERED, this
_J_ day of December, 2014.
UNITED STATES DISTRICT JUDGE
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