Aikens v. Ingram, 5:11–CV–371–BO.

• Decision Date: 02 December 2014
• Docket Number: No. 5:11–CV–371–BO.,5:11–CV–371–BO.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Frederick AIKENS, Plaintiff, v. William E. INGRAM, Jr., individually And in his capacity as Adjutant General of The North Carolina Army National Guard and Peter Von Jess, individually and in his capacity as Lieutenant Colonel of the North Carolina National Guard, Defendants.

71 F.Supp.3d 562

Frederick AIKENS, Plaintiff

v.William E. INGRAM, Jr., individually And in his capacity as Adjutant General of The North Carolina Army National Guard and Peter Von Jess, individually and in his capacity as Lieutenant Colonel of the North Carolina National Guard, Defendants.

No. 5:11–CV–371–BO.

United States District Court, E.D. North Carolina, Western Division.

Signed Dec. 2, 2014.

Filed Dec. 4, 2014.

William W. Webb, Sr., The Edmisten & Webb Law Firm, Raleigh, NC, for Plaintiff.

Charles G. Whitehead, N.C. Dept. of Justice, Gerald K. Robbins, North Carolina Attorney General's Office, Raleigh, NC, for Defendants.

ORDER

TERRENCE W. BOYLE, District Judge.

This cause comes before the Court on defendants' motion for summary judgment, to which the plaintiff has 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.

BACKGROUND

Plaintiff originally filed this action alleging a civil rights claim pursuant to 42 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 of the 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, plaintiff's 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 plaintiff's 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 plaintiff's 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 2–1 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. [Id. at 14]. The following month, the Lieutenant General withdrew federal recognition from plaintiff. [Id. 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. [Id. 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). No. 5:06–CV–185–D. By order entered September 13, 2007, this Court dismissed plaintiff's 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 plaintiff's 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 Plaintiff's 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 banc opinion filed July 13, 2011, Aikens v. Ingram, 652 F.3d 496 (4th Cir.2011) (en banc). Two days later, plaintiff filed the instant action. [DE 1]. Defendants filed a motion to dismiss [DE 8] over plaintiff's opposition [DE 10]. This Court granted the motion to dismiss, finding that plaintiff's 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 Fed.Appx. 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 plaintiff's military fringe benefits and seniority rights; and (5) damages including but not limited to his back wages.

DISCUSSION

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548. If that 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). 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, 477 U.S. at 323, 106 S.Ct. 2548. A non-movant “may not rest upon mere allegations or denials,” but rather must demonstrate that a triable issue of material 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].” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

I. Justiciability

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, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine applies to all suits for damages and extends to Bivens actions. Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) ; United States v. Stanley, 483 U.S. 669, 684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (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, 103 S.Ct. 2362.

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 (5th 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.” Id. 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: “(1) the nature and strength of the plaintiff's 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.”Id. 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)....