Aikens v. Ingram

• Decision Date: 02 May 2013
• Docket Number: No. 12-1334,12-1334
• 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, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

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.

No. 12-1334

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: February 1, 2013

Decided: May 2, 2013

UNPUBLISHED

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)

Before KING, SHEDD, and THACKER, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion. Judge Thacker wrote a separate opinion concurring in part and dissenting in part.

ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: William Woodward Webb, Jr., THE EDMISTEN, WEBB & HAWES LAW FIRM, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Frederick Aikens, who served for thirty-two years in the North Carolina Army National Guard, herein attempts for the second time to have his claims against former colleagues William E. Ingram, Jr., and Peter von Jess heard on the merits. In the protracted first round of proceedings, the district court granted the defendants' motion to dismiss for lack of jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that Aikens was required, but had failed, to exhaust remedies with the Army Board for Correction of Military Records (the "ABCMR"). See Aikens v. Ingram, No. 5:06-cv-00185 (E.D.N.C. Sept. 13, 2007) (the "First Dismissal Order").¹ Aikens then took this matter to the ABCMR, but, as Aikens had predicted it would, the ABCMR deemed itself powerless to act on his application.

Consequently, Aikens returned to the district court, asserting that he was entitled to relief from the First Dismissal Order under Federal Rule of Civil Procedure 60(b) as a result of the court's erroneous exhaustion ruling. The court nonetheless held a different view, that Aikens was ineligible for Rule 60(b) relief. See Aikens v. Ingram, No. 5:06-cv-00185(E.D.N.C. Nov. 5, 2008) (the "Rule 60(b) Order").² On appeal, a three-judge panel of our Court affirmed the judgment by a 2-1 vote, see Aikens v. Ingram, 612 F.3d 285 (4th Cir. 2010), a decision that was subsequently vacated with the grant of rehearing en banc. Ultimately, however, we again affirmed the judgment, this time by a 7-5 vote. See Aikens v. Ingram, 652 F.3d 496 (4th Cir. 2011) (en banc) ("Aikens I").

Two days after we issued our en banc Aikens I decision, Aikens initiated this second round of proceedings in the Eastern District of North Carolina, asserting claims against Ingram and von Jess that are identical to previously dismissed claims. The defendants then successfully moved for dismissal under Rule 12(b)(6) — the district court having credited their contention that the claims are now time-barred. See Aikens v. Ingram, No. 5:11-cv-00371 (E.D.N.C. Feb. 27, 2012) (the "Second Dismissal Order").³ In the appeal now before us, Aikens contests the Second Dismissal Order, and, as explained below, we reverse and remand for further proceedings.

I.

A.

Aikens's allegations against defendants Ingram and von Jess are described more thoroughly in Aikens I. It serves our present purposes to note simply that Aikens last served in the North Carolina Army National Guard with the rank of Colonel and as commanding officer of the 139th Rear Operations Center. Aikens alleges that between April and November 2003, while he was deployed to Kuwait in support of Operation Iraqi Freedom, the defendants illegally intercepted his email and forwarded it to his wartime commanders to substantiate allegations that he had engaged in a hostile command environment and inappropriate relationships with women. According to Aikens, the defendants' conduct led to several investigations and compelled his constructive discharge from the National Guard.

As he did in his initial complaint (the "First Complaint"), Aikens asserts two claims against the defendants in his present complaint (the "Second Complaint"): a 42 U.S.C. § 1983 claim for violation of his Fourth Amendment rights, and a claim for invasion of privacy under North Carolina law.⁴ It is acceptedthat Aikens's claims accrued on November 24, 2003, when Aikens discovered that his email had been intercepted, and that each claim is subject to a three-year statute of limitations. Thus, absent a tolling thereof, Aikens's claims would have been barred after November 24, 2006. He filed his First Complaint with 212 days left in the unmodified limitations period, on April 27, 2006.

The district court issued its First Dismissal Order on September 13, 2007, dismissing without prejudice the First Complaint against Ingram and von Jess "so that plaintiff may exhaust his intraservice administrative remedies with ABCMR." First Dismissal Order 12. The court observed that "[d]ismissing the [First Complaint] without prejudice grants deference to the military to handle its own affairs." Id. at 8. Additionally, the court stated that, "[i]f the ABCMR does not have jurisdiction, it will take no action and plaintiff may return to federal court." Id. A conforming judgment was entered on September 14, 2007.

Aikens filed his application with the ABCMR less than a month later, on October 10, 2007. The ABCMR rejected Aikens's application for lack of jurisdiction on February 6, 2008, within four months of the First Dismissal Order. The ABCMR's letter to Aikens explained that "it has been determined that your application and the remedy you seek is not within the purview of the ABCMR." J.A. 44.

On March 31, 2008, within two months of the ABCMR's decision, Aikens returned to the district court, moving under Rule 60(b) of the Federal Rules of Civil Procedure for relief from the First Dismissal Order. Aikens specifically cited clause (6) of Rule 60(b), which authorizes a court to relieve a party from a final judgment for "any other reason [not spelled out in clauses (1)-(5)] that justifies relief," and which requires the movant to demonstrate "extraordinary circumstances," See Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 n.2 (4th Cir. 2000). In so doing, Aikens explained to the court that Rule 60(b)(6) relief was necessary to avoid any statute of limitations problem, and he indicated that he was entitled to such relief because the court had erred in ordering exhaustion of intraservice remedies and thereby jeopardizing the timeliness of his claims. Aikens also invoked the court's statement in the First Dismissal Order that, if he were provedcorrect about the ABCMR's lack of jurisdiction, he could "return to federal court."

The district court issued its Rule 60(b) Order more than seven months later, on November 5, 2008. The court clarified therein that, in stating in the First Dismissal Order that Aikens could "return to federal court," it "was not implying that plaintiff could return to court in this action." Rule 60(b) Order 7. "Rather," the court explained, it "was making the unremarkable observation that if the ABCMR determined that it lacked jurisdiction, nothing in the [First Dismissal Order] would prevent plaintiff from filing a new action against Ingram and von Jess." Id.

Nevertheless, the district court also recognized that the three-year statute of limitations on Aikens's § 1983 claim had "seemingly expired . . . on November 24, 2006," more than nine months before the court issued its First Dismissal Order. See Rule 60(b) Order 8. The court found it unnecessary to "resolve [the limitations period] issue definitively," explaining that, "[i]f plaintiff files a new action, and defendants assert the statute-of-limitations defense, the court will then address the issue." Id. at 8 n.1. For purposes of resolving Aikens's Rule 60(b) motion, the court deemed it sufficient to conclude that Aikens was at fault for his statute of limitations predicament and thus ineligible for Rule 60(b)(6) relief. Id. at 8-9(observing that Aikens should have attempted to exhaust intraservice remedies prior to filing First Complaint, or should have filed First Complaint earlier in limitations period in anticipation of court's ruling that exhaustion was required).

On November 10, 2008, Aikens promptly noted his appeal to this Court, where the matter resided for nearly three years, undergoing both panel and en banc consideration. By our en banc Aikens I decision of July 13, 2011, the seven-judge majority "conclude[d] that the district court did not abuse its discretion in finding that Aikens did not demonstrate the 'extraordinary circumstances' necessary to employ Rule 60(b)(6) as a bypass around routinely available procedures, particularly when his failure to use those procedures was the product of his strategic litigation choices." 652 F.3d at 502. The majority identified "multiple procedural mechanisms that Aikens could have used to pursue his claim," including an appeal in this Court from the First Dismissal Order, a request for a stay pending exhaustion of intraservice remedies, and the filing of a new action following such exhaustion. Id. at 502-03.

Significantly, five of the seven judges of the Aikens I majority joined in a concurring opinion proclaiming that the district court could have found "extraordinary circumstances" meriting Rule 60(b)(6) relief, but did not abuse its discretion in ruling to the contrary. See 652 F.3d at 504-05 (Diaz, J.,concurring) (acknowledging that, "[w]ere I the district judge in this case, I might well have reached a conclusion different from that below and granted Aikens's Rule 60(b)(6) motion"). Meanwhile, the five dissenting judges...