By Sarah Saint
On February 1, 2016, the Fourth Circuit amended its opinion in the civil case, Aikens v. Ingram (as amended), holding that the Feres “incident to service” test applies to 42 U.S.C. § 1983 claims alleging constitutional violations that arise out of or in the course of activity incident to federal military service. Because Appellant alleged a constitutional violation that occurred while he was on active duty, while he was deployed, and through his Department of Defense email, Feres bars recovery under § 1983.
The Email Scandal
In 2001, Appellant Frederick Aikens (“Aikens”) was promoted to full colonel of the 139th Rear Operations Center of the North Carolina National Guard. Respondent Peter von Jess (“von Jess”) was named executive officer and a subordinate to Aikens. In December 2002, Aikens gave von Jess a negative officer evaluation report, which von Jess appealed to Respondent William E. Ingram (“Ingram”), arguing that Aikens evaluation was made with malice.
In 2003, while Aikens was deployed to Kuwait and von Jess remained in North Carolina, Paul Jones (“Jones”) and Brian McCarthy (“McCarthy”), information technology personnel, used illegal means to read and forward around 130 of Aikens’ personal emails to von Jess. Von Jess used those emails to compose a damning memorandum to the North Carolina Governor’s chief of staff, alleging that Aikens planned to overthrow the Adjutant General. Von Jess also forward the emails to the Department of the Army Inspector General (“DAIG”).
In May 2004, DAIG found six instances of misconduct on Aikens’ part, even though DAIG concluded Jones and McCarthy improperly accessed Aikens’ emails. DAIG provided such findings to the Governor of North Carolina and Ingram. Ingram forwarded the findings to Lieutenant General Russel Honoré (“Honoré”), who withdrew federal recognition from Aikens, resulting in Aikens’ constructive termination. Aikens subsequently transferred to the retired reserve.
Respondents’ Motion for Summary Judgment
On April 27, 2006, Aikens sued von Jess and Ingram in their individual capacities under 42 U.S.C. § 1983, arguing that they facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait. In support, he claimed that von Jess and Ingram, motivated by revenge, authorized and directed McCarthy and Jones to send Aikens’ incriminating emails to von Jess because of Aikens contentious history with von Jess.
Von Jess and Ingram moved for summary judgment for two reasons. (1) Aikens had no reasonable expectation of privacy in his emails because Army Regulations made clear that emails sent and received over the Department of Defense computer system could be monitored. (2) Aikens’ claims are nonjusticiable under Feres v. United States, 340 U.S. 135 (1950). The district court granted Von Jess’ and Ingram’s motion for summary judgment, which Aikens appealed.
Standard of Review
The Fourth Circuit considered de novo the threshold legal question of whether the district court properly abstained from ruling on Aikens’ claims, taking all facts in the light most favorable to the non-movant.
Mindes Test Has No Place
The district court granted summary judgment on Aikens’ claim for equitable relief, relying on Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), which sets forth a four-factor test for reviewability of claims based on internal military affairs. Though in his reply brief, Aikens only requests damages, when he first sued von Jess and Ingram, Aikens also requested equitable relief. Typically, Mindes is only applicable to claims for equitable relief, but Aikens abandoned his claim for equitable relief. Further, the Fourth Circuit found that the Mindes test was inapplicable in this case because, in the Fourth Circuit, the Mindes test has only been applied to internal personnel matters, such as challenges to convening of retention boards and military discharge, which is not similar to the case here of improper email monitoring.
Feres Test Applies to § 1983 Claims
The Fourth Circuit looked at the evolution of the Feres test to determine if Feres barred Aikens from seeking damages under 42 U.S.C. § 1983. Feres first applied to Federal Tort Claims Acts claims, barring government liability for injuries to service persons where the injuries arise out of or are in the course of activity incident to service. The Supreme Court then extended the Feres “incident to service” test to causes of action outside the Federal Tort Claims Act, including for Bivens actions, or constitutional claims brought against federal officers. However, neither the Supreme Court nor the Fourth Circuit had extended the Feres test to apply to constitutional claims brought against state officers under 42 U.S.C. § 1983.
In this case, the Fourth Circuit decided to the Feres test to § 1983 actions against state officers for two reasons. First, suits under § 1983 and Bivens address constitutional violations by government officials, it is logical to extend the Feres test to § 1983 actions when it applies to Bivens actions. Second, courts generally do not expand liability for injuries arising out of military service to maintain separation of powers. Accordingly, the court decided not to allow damages actions pursuant to § 1983 against state officials for injuries suffered incident to service, which is foreclosed against federal officials, when Congress has not expressly authorized them.
Feres Test Applies to Aikens’ Injuries
The Fourth Circuit then addressed whether the Feres test applied to the case at hand by determining whether the search and seizure of Aikens’ emails arose out or of were in the course of activity incident to service. To determine whether Feres applies, courts look to whether specific suits call into question military discipline and decision-making, requiring judicial intrusion upon military matters. The Supreme Court interprets the Feres test broadly. The Feres test applies to all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military. Application of the Feres test does not require that the plaintiff be on duty and does not depend on the military status of the defendant.
Accordingly, the Fourth Circuit concluded that Aikens’ alleged injuries arose out of activity incident to service because he was on active duty, was deployed in a war zone, and used a computer system set up by the Department of Defense for military personnel. The Court noted that it was irrelevant that Aikens was a National Guardsman because he was serving in a federal capacity when he was called to active duty. Further, the Court found irrelevant that von Jess and Ingram were not in Aiken’s direct chain of command.
Nevertheless, the Court abstained from reviewing Aikens’ § 1983 claim based on the Feres “incident to service” test. Accordingly, the Fourth Circuit affirmed the district court’s dismissal of Aikens’ case.