Frederick Aikens v. William Ingram, Jr. ( 2016 )

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 Decided: January 29, 2016
Amended: February 1, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge King joined. Judge Shedd wrote a separate
concurring opinion.
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.
2
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 (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. 3d 562, 565-66 (E.D.N.C.
3
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 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
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
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
2
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.
5
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, 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. 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
3Appellant also brought a North Carolina invasion of
privacy claim, but he has since abandoned it.
6
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 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 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 affairs), and granted Appellees’ motion for summary
judgment. 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.” Butler v. Drive Auto.
7
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. 14-2419 (Dec. 9, 2015),
8
available at 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).
9
However, some 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 passing on the continued viability of the
Mindes test in this circuit, 5 we only observe that in this
particular case, the test is an ill fit. Our 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).
10
Scruggs, 942 F.2d 270, 276 (4th Cir. 1991). The case at hand is
markedly different. 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
11
realm, including claims against federal officials pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). 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” test is applicable to constitutional claims under
Bivens, the Supreme Court has not extended the reasoning of
Chappell and Stanley and applied the test to constitutional
claims brought against state officers under 42 U.S.C. § 1983.
Nor have we. Almost all of our sister circuits, however, have
done so. See, e.g., Newton v. Lee, 677 F.3d 1017, 1025 (10th
Cir. 2012); Matreale v. N.J. Dep’t of Military & Veterans
Affairs, 487 F.3d 150, 154 (3d Cir. 2007); Speigner v.
12
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. This result is
supported by Supreme Court jurisprudence and respects the
delicate separation of powers necessary for smooth and effective
military governance.
First, because suits under both § 1983 and Bivens
address constitutional infringements by government 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 of immunity from liability when sued for a
constitutional infringement as authorized by Bivens than is
13
accorded state officials when sued for the identical violation
under § 1983.” Butz v. Economou, 438 U.S. 478, 500 (1978).
This precept is especially important in a case
involving National Guard service members, as § 1983 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.” Stanley, 483 U.S. at
682-83. 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. See
14
Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) (“[U]nless
Congress specifically has provided 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, this circuit has been wary of endorsing
actions for damages in military contexts. In 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 and
unlawful designation and detention of enemy combatants. See 670
F.3d 540, 546-47 (4th Cir. 2012). 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.” Id. at 547.
Declining to do so, we noted the “explicit constitutional
delegation of control over military affairs” to the political
branches of government. Id. at 549. We also observed,
“whenever the Supreme Court has considered a 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 political branches . . .
15
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 Bivens-
based 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 created within each
service . . . .” (emphasis supplied)). 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
16
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 cannot be reduced to a few bright-line
rules . . . .”). 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, 295 F.3d 1124, 1130 (10th Cir. 2002)
(discussing Stanley, 483 U.S. at 681). Rather, we look to
“whether ‘particular suits would call into question military
discipline and decisionmaking [and would] require judicial
inquiry into, and hence intrusion upon, military matters.’”
Cioca, 720 F.3d at 515 (quoting Stanley, 483 U.S. at 682)
(alteration in original). In other words, “where a complaint
asserts injuries that stem from the relationship between the
plaintiff and the plaintiff’s service in the military, the
‘incident to service’ test is implicated.” 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
the Feres doctrine to 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 that Bivens suits are never permitted for
constitutional violations arising from military service, no
matter how severe the injury or how egregious the 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 tortfeasor is crucial to the application of the
doctrine.”). We do not even need to inquire “whether the
discrete injuries to the victim were committed in support of the
18
military mission.” 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
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 used a computer system set up by the DOD for military
personnel deployed at Camp Doha. His computer 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 of the system, “authorized or unauthorized,”
constituted “consent to monitoring”; and “all 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. Appellant may claim that this is an
“egregious . . . 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
their status as members of the state militia . . . .” Perpich
v. Department of Defense, 496 U.S. 334, 347 (1990).
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 active military duty.”). The Third Circuit has
similarly explained that “concern for the disruption of 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 & Veterans
Affairs, 487 F.3d 150, 158 (3d Cir. 2007). 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 of lawsuits brought by [federal active duty]
guardsmen.” Id.Nor does it matter that at the time of the email
monitoring and forwarding, Appellees were not in Appellant’s
direct chain of command. See Stanley, 483 U.S. at 680-81
21
(“Feres did not consider the officer-subordinate relationship
crucial, but established instead [the] ‘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 these reasons, we abstain from reviewing
Appellant’s § 1983 claim based on the Feres “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
SHEDD, Circuit Judge, concurring:
I agree with the majority that the Feres “incident to
service” test warrants our abstention from reviewing 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).
23
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 service”
test, I believe the summary judgment should be affirmed.
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