Aikens v. Ingram
| Decision Date | 06 July 2010 |
| Docket Number | No. 08-2278,5:06-cv-00185-D,08-2278 |
| 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 |
ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. John Foster Maddrey, NORTH CAROLINA DEPARTMENT OF JUS-TICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: William Woodward Webb, Jr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, W. Dale Talbert, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
PUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever Ill, District Judge.
Before NIEMEYER and KING, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Senior Judge Siler joined. Judge King wrote a dissenting opinion.
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 Iraq. The district court dismissed the action without prejudice, concluding that it lacked subject matter jurisdiction becauseof Colonel Aikens' failure to exhaust any available intramilitary remedies. The court entered a judgment of dismissal on September 14, 2007.
When Colonel Aikens filed his claim with the Army Board for Correction of Military Records ("ABCMR"), the Board determined that it could not provide him with the relief that he sought. Afterwards, rather than filing a new action, Aikens sought to reopen the judgment entered in this case by filing a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). The district court denied the motion, reasoning that Colonel Aikens had failed to establish the extraordinary circumstances necessary for granting relief from judgment under Rule 60(b)(6).
For the reasons that follow, we conclude that the district court did not abuse its discretion and affirm.
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 andintercepted 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 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 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 plaintiffs 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, plaintiffs "failure to exhaust intraservice administrative remedies [makes] his federal claim[s] a nonjusticiable military controversy."
Id. (quoting Williams, 762 F.2d at 360) (alterations in original). The court added, however, that if the ABCMR did not have jurisdiction, it would take no action and Colonel Aikens could return to federal court. Id. at 592. On the other hand, if the ABCMR had jurisdiction, then the court would be limited to conducting judicial review of the administrative proceeding. Id.
Colonel Aikens subsequently pursued administrative remedies but was denied relief. The ABCMR wrote 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 filed a motion for relief from the 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 and he now might face a statute of limitations defense if hewere to file a new action. 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). 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. In response to Aikens' suggestion that he might now be faced with a statute of limitations defense, the court observed 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.
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.
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).1 While this catchall reason includes few tex-tual 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 Servs. Acquisition Corp., 486 U.S. 847, 863 n.11, & 864 (1988). As Chief Justice Rehnquist noted in his separate opinion in Liljeberg:
Rule 60(b) authorizes a district court, on motion and upon such terms as are just, to relieve a party from a final judgment, order, or proceeding for any "reason justifying relief from the operation of the judgment." However, we have repeatedly instructed that only truly "extraordinary circumstances" will permit a party successfully to invoke the "any other reason" clause of § 60(b). This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved.
486 U.S. at 873 (Rehnquist, C.J., dissenting) (citations omitted). To give Rule 60(b)(6) broad application would undermine numerous other rules that favor the finality of judgments, such as Rule 59 (); Rule 6(b)(2) (...
To continue reading
Request your trial