Aikens v. Ingram

• Decision Date: 13 July 2011
• Docket Number: No. 08–2278.,08–2278.
• Citation: 80 Fed.R.Serv.3d 13,652 F.3d 496
• Parties: 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; Brian McCarthy, individually and in his capacity as a member of the North Carolina Army National Guard; Paul Jones, individually and in his capacity as a member of the North Carolina Army National Guard, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

652 F.3d 496

80 Fed.R.Serv.3d 13

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; Brian McCarthy, individually and in his capacity as a member of the North Carolina Army National Guard; Paul Jones, individually and in his capacity as a member of the North Carolina Army National Guard, Defendants–Appellees.

No. 08–2278.

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2011.Decided: July 13, 2011.

ARGUED: William Woodward Webb, Sr., Edmisten & Webb, Raleigh, North Carolina, for Appellant. John Foster Maddrey, 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 TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, and DIAZ, Circuit Judges.¹

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge TRAXLER and Judges WILKINSON, SHEDD, DUNCAN, AGEE, and DIAZ joined. Judge DIAZ wrote a concurring opinion in which Judges SHEDD, DUNCAN, and AGEE joined. Judge KING wrote a dissenting opinion in which Judges MOTZ, GREGORY, DAVIS, and KEENAN joined. Judge DAVIS wrote a separate dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

Frederick Aikens, formerly a colonel in the North Carolina Army National Guard, commenced this action against his former colleagues, Adjutant General William Ingram and Lieutenant Colonel Peter von Jess, alleging that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Kuwait. The district court dismissed the action without prejudice, concluding that it lacked subject matter jurisdiction because of Colonel Aikens' failure to exhaust any available intra-military remedies. The court entered a judgment of dismissal on September 14, 2007.

Although Colonel Aikens held the firm belief that the district court had erred, he did not appeal, nor did he seek a stay to assure the district court's continuing jurisdiction over the matter. Aikens did file his claim with the Army Board for Correction of Military Records (“ABCMR”), but then, when the Board determined that it could not provide him with the relief that he sought, he did not file another action in the district court. Rather, he sought to reopen the September 14, 2007 judgment by filing a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), several months after that action had become final and unappealable. The district court denied the Rule 60(b)(6) motion in the exercise of its discretion, reasoning that Colonel Aikens had failed to establish the extraordinary circumstances necessary under Rule 60(b)(6) for granting relief from the September 14, 2007 judgment.

For the reasons that follow, we conclude that the district court did not abuse its discretion and thus affirm.

I

After Frederick Aikens was promoted to colonel in the North Carolina Army National Guard, Lieutenant Colonel Peter von Jess was selected to replace him as executive officer of the 139th Rear Operations Center. Shortly thereafter, Colonel Aikens began receiving complaints about von Jess from subordinate field officers, leading Aikens to discipline von Jess in a July 2002 officer evaluation report. Aikens reiterated that evaluation in a December 2002 evaluation report. Adjutant General William Ingram, who had selected von Jess to replace Aikens as executive officer, invalidated Colonel Aikens' evaluation of von Jess, which provoked Colonel Aikens to file a complaint for undue command influence with the Department of the Army Inspector General. The Inspector General substantiated Aikens' complaint.

According to Aikens, when he was later deployed to Kuwait in April 2003, two of his subordinate officers, under instructions from General Ingram, illegally monitored and intercepted his personal e-mails from a computer system they had set up for him. These e-mails contained personal correspondence, including negative statements about General Ingram and others.

Thereafter, General Ingram ordered two separate investigations of Aikens, one in December 2003 and another in February 2004, both of which were later determined to be unsubstantiated. But Colonel Aikens was later notified by the Inspector General that he was the subject of yet another investigation for a “hostile command climate and inappropriate relations with women.” These charges were substantiated in part by use of the intercepted e-mails. Colonel Aikens asserts that as a result of the third investigation he resigned from the North Carolina National Guard in June 2005 and that his resignation amounted to constructive discharge from the United States Army. After his resignation, he was transferred to the Retired Reserve.

Colonel Aikens commenced this action against General Ingram and Lieutenant Colonel von Jess, contending that the defendants violated his Fourth Amendment rights and Army Regulation 380–19. General Ingram and Lieutenant Colonel von Jess filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the district court lacked subject matter jurisdiction because Colonel Aikens had failed to exhaust his intra-service military remedies through the ABCMR. Aikens responded, arguing that exhaustion was unnecessary because the ABCMR could not address Fourth Amendment violations and that General Ingram and Lieutenant von Jess were, in any event, state actors, not a federal agency subject to the ABCMR.

The district court granted the motion without prejudice, directing Aikens to exhaust his intra-service administrative remedies with the ABCMR. Aikens v. Ingram, 513 F.Supp.2d 586 (E.D.N.C.2007). The court noted that Colonel Aikens' complaint, in making his Fourth Amendment argument, relied on Army Regulation 380–19 and that the ABCMR “has authority to ‘correct an error or remove an injustice’ in plaintiff's military record,” id. at 591 (quoting 10 U.S.C. § 1552(a)(1)), and to “ ‘reinstate [plaintiff] in a comparable active federal reserve status, restore his pay and order compensatory back pay,’ ” id. (quoting Williams v. Wilson, 762 F.2d 357, 360 n. 6 (4th Cir.1985) (alteration in original)). The court reasoned:

At bottom, plaintiff seeks to rescind the resignation letter contained in his military record. In so doing, he relies on the Fourth Amendment and on Army Regulation 380–19. However, plaintiff's “failure to exhaust intraservice administrative remedies [makes] his federal claim a nonjusticiable military controversy.”

Id. (quoting Williams, 762 F.2d at 360) (alterations in original). Explaining that its dismissal without prejudice “grant[ed] deference to the military to handle its own affairs,” the court stated that if the ABCMR had jurisdiction, the court would later conduct judicial review of the administrative proceeding. But if the ABCMR did not have jurisdiction, the agency would “take no action and [Aikens] [could] return to federal court.” Id. at 591–92.

Colonel Aikens contends that the district court was “indisputably wrong about exhaustion,” but he elected not to appeal.² Neither did Colonel Aikens ask the district court for a stay of its dismissal order, a request he agreed at oral argument was not barred. Rather, he “dutifully,” as he asserts, pursued administrative remedies before the ABCMR. The ABCMR denied Aikens relief, writing in a letter to Colonel Aikens, “Upon review it has been determined that your application and the remedy you seek is not within the purview of the ABCMR; therefore, it is returned without prejudice and without action being taken by this Board.”

On March 31, 2008, more than six months after the district court entered its judgment of dismissal, Aikens returned to court. Rather than filing a new action, he filed a motion for relief from the September 14, 2007 judgment, pursuant to Federal Rule of Civil Procedure 60(b)(6). He argued that the judgment should be reopened because he had complied with the court's requirement that he exhaust his intra-service administrative remedies. The district court denied the motion on the ground that Colonel Aikens had failed to show the “extraordinary circumstances” warranting relief from the judgment under Rule 60(b)(6). Aikens v. Ingram, No. 5:06–cv–185–D, 2008 WL 4831420 (E.D.N.C. Nov. 5, 2008). The court noted that its judgment of dismissal without prejudice anticipated that Colonel Aikens would return to federal court through the filing of a new action. See id. at *4. Although Aikens failed to raise the issue in his Rule 60(b) motion, the court further noted that Aikens apparently sought Rule 60(b) relief because he might be faced with a statute of limitations defense if he filed a new action. It observed, however, that any limitations problem was the result of Aikens' tactical decisions not to seek administrative review earlier and to file this action late in the limitations period. See id. at *5.

From the district court's order denying Aikens' motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), Aikens filed this appeal.

II

Federal Rule of Civil Procedure 60(b) authorizes a district court to grant relief from a final judgment for five enumerated reasons or for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6).³ While this catchall reason includes few textual limitations, its context requires that it may be invoked in only “extraordinary circumstances” when the reason for relief from judgment does not fall within the list of enumerated reasons given in Rule 60(b)(1)-(5). See Liljeberg v. Health...