Decided: January 29, 2016
The Fourth Circuit affirmed the judgment of the district court.
In 2001, Plaintiff Colonel Federick Aikens (“Aikens”), was promoted from executive officer to full colonel and commanding officer of the 139th Rear Operations Center (“ROC”). After Aikens promotion, General William E. Ingram (“Ingram”) named Lieutenant Colonel Peter von Jess (“von Jess”) as executive officer to replace Aikens. This assignment meant that Aikens was in a supervisory position over von Jess. In December 2002, Aikens was required to complete an officer evaluation report of von Jess, where he gave von Jess a negative report. In 2003, Aikens was called to active duty in Kuwait, but Ingram and von Jess remained in North Carolina. However, the animosity between Aikens and von Jess did not subside. In November 2003, Aikens was informed that two technology personnel staff members had used illegal means to obtain his personal emails. Aikens learned that those emails had been forwarded to von Jess. Von Jess then forwarded the emails to the Department of the Army Inspector General (“DAIG”). DAIG concluded that the emails had been improperly obtained, but nonetheless used to emails to find six instances of active duty misconduct on Aikens’ part. Ingram received the emails from DAIG and then forwarded the findings to the Commander of the First United States Army, Lieutenant General Russel Honoré. As a result, Aikens was terminated. On April 27, 2006, Aikens sued Ingram and von Jess pursuant to 42 U.S.C. § 1983, claiming that they facilitated unconstitutional searches and seizures of Aikens’ personal emails while he was deployed in Kuwait. The district court granted summary judgment in favor of Ingram and von Jess, based on the justiciability doctrine set forth in Mindes v. Seaman, which sets forth a four factor test for reviewability of claims based on internal military affairs.
On appeal, the Fourth Circuit found that Mindes had no place in its analysis because Mindes applies only to equitable relief and Aikens had abandoned his claim for equitable relief. Instead, the Court relied on Feres v. United States, and affirmed the district court’s grant of summary judgment on the basis of the military abstention doctrine. Originally, Feres stood for the proposition “that the Government is not liable under the Federal Tort Claims Act for ‘injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.’” This has been called the Feres “incident to service test.” The Untied States Supreme Court has subsequently applied the “incident to service test” to actions outside of the Federal Tort Claims Act. In the instant case, the Fourth Circuit found that the Feres “incident to service” test applies to §1983 actions. The Court justified this application based on Supreme Court jurisprudence and the delicate separation of powers necessary for smooth and effective military governance. As such, the Court applied the Feres “incident to services” test and found that Aikens alleged injuries arose out of activity incident to services because Aikens was on active duty, deployed in a war zone, and used a computer system set up by military personnel.
Accordingly, the Court abstained from reviewing Aikens’ §1983 claim because it fell under the Feres “incident to service test.” Consequently, the Court affirmed the district court’s dismissal of the case.
Meredith Weisler