Culbreth v. Ingram, 5:04 CV 731 H(S).

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Citation: 389 F.Supp.2d 668
• Docket Number: No. 5:04 CV 731 H(S).,5:04 CV 731 H(S).
• Parties: David B. CULBRETH, Plaintiff, v. William E. INGRAM Jr., individually and in his capacity as Adjutant General of the North Carolina Army National Guard, and William T. Boyd, individually and in his capacity as Chief of Staff of the North Carolina Army National Guard, Defendants.
• Decision Date: 29 September 2005

389 F.Supp.2d 668 David B. CULBRETH, Plaintiff,
v.
William E. INGRAM Jr., individually and in his capacity as Adjutant General of the North Carolina Army National Guard, and William T. Boyd, individually and in his capacity as Chief of Staff of the North Carolina Army National Guard, Defendants. No. 5:04 CV 731 H(S). United States District Court, E.D. North Carolina. Western Division. September 29, 2005.

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William W. Webb, Sr., The Edmisten & Webb Law Firm, William Woodward Webb, Jr., The Edmisten & Webb Law Firm, Raleigh, for David Culbreth, plaintiff.

W. Dale Talbert, Spec. Asst., Aty. Gen, N.C. Attorney General's Office, Raleigh, for William E. Ingram, Jr., individually and in his capacity as Adjutant General of the North Carolina Army National Guard, William T. Boyd, individually and in his capacity as Chief of Staff of the North Carolina Army National Guard, defendants.

ORDER

HOWARD, District J.

This matter is before the court on defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The plaintiff has responded. Therefore, this matter is ripe for adjudication.

STATEMENT OF THE CASE

Plaintiff was a Title 32 Active Guard Reserve Officer for the North Carolina Army National Guard ("NCARNG") and a full time Active Guard Reserve ("AGR") soldier, serving in the rank of Major, until January 20, 2004, when he was involuntarily separated from the Title 32 AGR program. Defendant Ingram is the Adjutant General of the North Carolina National Guard ("NCNG"). Defendant Boyd is the NCNG Chief of Staff.

Plaintiff initiated this action by filing a complaint on October 1, 2004 (amended November 23, 2004), alleging invasion of his constitutionally protected right to privacy and violations of his rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331. On January 24, 2005, defendants filed the motion to dismiss currently pending before this court, and plaintiff responded on March 14, 2005.

Plaintiff alleges that defendants twice retaliated against him for complaints he filed against his superiors. First, plaintiff alleges that defendant Ingram repeatedly denied plaintiff's promotion and reassignment in retaliation for a complaint plaintiff filed with the XVIII Airborne Corps Inspector General alleging improprieties by Lieutenant Colonel Peter Von Jess ("Von Jess").

Second, plaintiff alleges retaliation by both defendants Ingram and Boyd for a complaint filed with the Department of Army Inspector General ("DAIG") regarding the first alleged instance of retaliation by defendant Ingram. Specifically, plaintiff claims that defendants Ingram and Boyd authorized others under their command to hack into an email account belonging to Colonel Frederick Aikens ("Aikens") and to obtain from Aikens' account an email sent by plaintiff that contained abusive and degrading comments toward defendants Ingram and Boyd and threats to their families. Defendants claim that this email formed the basis for plaintiff's involuntary separation from the Title 32

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AGR Program. In contrast, plaintiff alleges that this incident, coupled with the first instance of retaliation noted above, constitutes a "course of retaliation" by defendants for plaintiff's speech on matters of public concern, namely wrongdoing on the part of public officials Von Jess and defendant Ingram. Plaintiff suggests that this course of retaliation was the actual cause for his involuntary separation, and the email obtained from Aikens' account was simply a means to this end. Plaintiff further alleges that defendants violated his Fourth Amendment rights and his constitutionally protected right to privacy when they obtained the email from Aikens' account.

Based on the foregoing allegations, plaintiff seeks reinstatement, backpay, and other appropriate equitable relief.

COURT'S DISCUSSION

I. Intramilitary Immunity

Members of the armed services cannot maintain suits against the government for injuries that "arise out of or in the course of activity incident to service." Feres v. U.S., 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine applies to all suits for damages, Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) ("We hold that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations"), and extends to Bivens actions, U.S. v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).¹

A number of circuits have extended Chappell to suits for money damages brought against National Guard officers under § 1983. See, e.g., Watson v. Arkansas Nat'l Guard, 886 F.2d 1004 (8th Cir.1989) (reasoning that "[t]he concern for the disruption of military discipline upon which Feres, Chappell, and Stanley are based applies equally when a court is asked to entertain an intra-military suit under § 1983."). In the present case, plaintiff acknowledges that the Eleventh Amendment protects the state from suits for money damages.² Plaintiff in this case seeks solely reinstatement, backpay, and other equitable relief.

There is a split of authority among the circuits regarding the justiciability of claims brought by National Guard members seeking equitable relief for alleged constitutional violations in military personnel decisions. The Second, Fifth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuits have read Supreme Court precedent to allow equitable challenges only where the military fails to follow its own procedures or where the constitutionality of military regulations themselves is called into question. See Dibble v. Fenimore, 339 F.3d 120, 126-28 (2d Cir.2003); Crawford v. Tex. Army Nat'l Guard, 794 F.2d 1034 (5th Cir.1986); Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765 (7th Cir.1993); Watson v. Ark. Nat'l Guard, 886 F.2d 1004 (8th Cir.1989); Christoffersen v. Wash., State Air Nat'l Guard, 855 F.2d 1437 (9th Cir.1988); Speigner v. Alexander, 248 F.3d 1292 (11th Cir.2001); Kreis v. Sec'y of the Air Force, 866 F.2d 1508 (D.C.Cir.1989). In contrast, the First, Third, and Tenth Circuits have allowed claims for equitable relief to go forward in cases involving individualized military personnel decisions. See Wigginton v. Centracchio, 205 F.3d

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504 (1st Cir.2000); Jorden v. Nat'l Guard Bureau, 799 F.2d 99 (3d Cir.1986); Walden v. Bartlett, 840 F.2d 771 (10th Cir.1988).

In the cases cited above, courts struggled with the proper interpretation of Chappell and Stanley. Plaintiff and defendants in this case craft their arguments along the same lines. However, the Fourth Circuit has not applied Chappell or Stanley to address justiciability in the context of non-Bivens actions against military officers. Instead, this circuit has applied the four part test outlined in Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971), and adopted in Williams v. Wilson, 762 F.2d 357, 359-60 (4th Cir.1985). See Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir.1991); Scott v. Rice, 7 F.3d 226, 1993 WL 375664 (4th Cir.1993) (unpublished).

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." 453 F.2d at 201. If a plaintiff meets these threshold 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...." 453 F.2d at 201-02.

A. Mindes' Threshold Requirements

1. Exhaustion of Intraservice Remedies

Plaintiff has alleged deprivation of his constitutional rights, thereby meeting Mindes' first threshold requirement. However, defendants urge this court to refrain from reviewing the military decisions at issue in this case because, they argue, plaintiff has failed to exhaust available intraservice remedies. The Supreme Court has held that exhaustion of state administrative remedies is not required in § 1983 cases, Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), but it has not addressed the issue of exhaustion of intraservice remedies in the § 1983 context. Military personnel actions present "a unique context with specialized rules limiting judicial review," Saad v. Dalton, 846 F.Supp. 889, 891-92 (S.D.Cal.1994), and abstention may be appropriate where the consequences to a service member of "postponement of his ability to obtain damages" are "outweighed by [] considerations of efficiency and agency expertise," Guerra v. Scruggs, 942 F.2d 270, 277 (4th Cir.1991). However, the Patsy court warned that policy considerations such as these, alone, "cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent." 457 U.S. at 513, 102 S.Ct. 2557. Finding no indication that Congress intended an exhaustion requirement to exist in § 1983 cases in the military context, this court will not impose such a requirement in this case.

2. Availability of Intraservice Remedies

Mindes requires "exhaustion of available intraservice corrective measures." 453 F.2d at 201 (emphasis added). Even where exhaustion is required, it must be shown that there are remedies available to plaintiff that he or she failed to exhaust, and that the administrative or intraservice forums could afford the plaintiff some relief. Defendants suggest plaintiff has failed to meet...