PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 14-2419

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,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:11-cv-00371-BO)

Argued: December 9, 2015 Decided: January 29, 2016

Amended: February 1, 2016

Before KING, SHEDD, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge King joined. Judge Shedd wrote a separate concurring opinion.

ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Gerald Kevin Robbins, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: William Woodward Webb, Jr., EDMISTEN & WEBB, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

2 THACKER, Circuit Judge:

Colonel Frederick Aikens (“Appellant”) challenges the

district court’s grant of summary judgment on his

claim in favor of two former members of the North

Carolina Army National Guard, Adjutant General William E. Ingram

(“Ingram”) and Lieutenant Colonel Peter von Jess (“von Jess”)

(collectively, “Appellees”). Appellant alleges that Appellees,

motivated by revenge, directed other service members to monitor

Appellant’s email messages, which he sent while serving on

active duty in Kuwait, and to forward incriminating messages to

von Jess. Appellant claims this alleged conduct violated his

Fourth Amendment rights.

The district court granted summary judgment based on

the justiciability doctrine set forth in Mindes v. Seaman,

(5th Cir. 1971) (providing a four-factor test for

reviewability of claims based on internal military affairs).

For the reasons that follow -- and acknowledging that Appellant

now renounces any claim for equitable relief -- we affirm the

district court on the basis of the military abstention doctrine

set forth in Feres v. United States,

(1950).

I.

The district court’s opinion sets forth the extensive

procedural history of this case, so we do not relay it here.

See Aikens v. Ingram,

(E.D.N.C.

3 2014). We recount the following relevant factual background in

the light most favorable to Appellant, the non-moving party.

See Butler v. Drive Auto. Indus. of Am., Inc.,

(4th Cir. 2015).

In 2001, Appellant, then a member of the North

Carolina National Guard (“NCNG”), was promoted from executive

officer to full colonel and commanding officer of the 139th Rear

Operations Center (“ROC”). After Appellant’s promotion,

Adjutant General Ingram named his longtime friend, von Jess, as

executive officer in Appellant’s place. This assignment meant

that Appellant was in a supervisory position over von Jess.

In December 2002, Appellant was instructed to complete

an officer evaluation report (“OER”) of von Jess. Appellant

gave von Jess a negative OER, which explained that von Jess

“ha[d] not demonstrated the ability to treat everyone with

dignity and respect and should not be promoted.” J.A. 246. 1 Von

Jess appealed the OER to Ingram, stating that Appellant was

“purposefully vindictive,” “angry,” “irrational,” and possessed

“professional jealousy.” J.A. 247, 257.

In early 2003, Appellant was called to active duty and

deployed to Camp Doha, Kuwait. Ingram and von Jess remained in

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

4 North Carolina, but the animosity between Appellant and von Jess

did not subside. In November 2003, Appellant received notice

that Specialist Paul Jones and Staff Sergeant Brian McCarthy,

information technology personnel supporting the 139th ROC, had

used illegal means to obtain his personal emails for the better

part of 2003. Appellant learned that Jones and McCarthy

forwarded around 130 of those emails to von Jess, who was not

deployed at the time. 2 Von Jess referenced those emails in a

memorandum to the North Carolina Governor’s chief of staff. In

that memorandum, von Jess accused Appellant of “unethical and

unprofessional behavior that . . . shows criminal intent to

overthrow the Adjutant General,” and he claimed information in

the emails “parallel[led] treason or mutiny.” J.A. 259-60. Von

Jess also forwarded the emails to the Department of the Army

Inspector General (“DAIG”).

In May 2004, the DAIG informed Appellant that he was

being investigated for contributing to a hostile command climate

and having inappropriate relations with women. The DAIG

2 The emails are not included in the record, but according to Jones and McCarthy, they included “interesting traffic,” i.e., emails to “women [who] were [not Appellant’s] wife,” and emails that indicated that Appellant “seemed to be plotting to overthrow [Ingram].” J.A. 264-65 (internal quotation marks omitted). Appellant classifies the emails as personal correspondence with his family, church members, and his wife, specifically, “traffic between my wife and I that only a husband and wife should see.” Id. at 296.

5 concluded that Jones and McCarthy improperly browsed Appellant’s

email, but it nonetheless used the information in the emails to

find six instances of active duty misconduct on Appellant’s

part. The DAIG provided its findings to the Governor of North

Carolina and Ingram. Ingram then forwarded the findings to the

Commander of the First United States Army, Lieutenant General

Russel Honoré. In July 2005, Honoré withdrew federal

recognition from Appellant, and he was constructively terminated

from the NCNG. Appellant waived the withdrawal hearing and

elected to transfer to the retired reserve.

On April 27, 2006, Appellant sued Appellees pursuant

to

, 3 claiming that they facilitated

unconstitutional searches and seizures of his personal emails

while he was deployed in Kuwait. In support of his claim,

Appellant emphasized his turbulent history with von Jess, and a

special camaraderie between von Jess and Ingram. Specifically,

Appellant maintains that von Jess and Ingram authorized and

directed McCarthy and Jones to monitor Appellant’s emails and

send incriminating emails to von Jess.

Appellees moved for summary judgment, asserting

Appellant’s claims failed for several reasons. They argued

3Appellant also brought a North Carolina invasion of privacy claim, but he has since abandoned it.

6 Appellant had no reasonable expectation of privacy in his emails

because Army Regulation 380-19, in effect at the time of

Appellant’s deployment to Camp Doha, made clear that emails sent

and received over the Department of Defense (“DOD”) computer

system could be monitored. See U.S. Dep’t of Army, Reg. 380-19,

Information Systems Security § 4-1(l) (Feb. 27, 1998) (providing

that the DOD computer system was to be used “only for authorized

U.S. government use”; use of the system, “authorized or

unauthorized,” constituted “consent to monitoring”; and “all

communications over the DOD system [could] be monitored”); see

also J.A. 307. Appellees also maintained Appellant’s claims

were nonjusticiable under Feres v. United States,

(1950).

The district court ultimately agreed that Appellant’s

claims were nonjusticiable, albeit under the framework set forth

in Mindes v. Seaman,

(5th Cir. 1971) (providing a

four-factor test for reviewability of claims based on internal

military affairs), and granted Appellees’ motion for summary

judgment. Appellant timely noted this appeal, and we possess

jurisdiction pursuant to

.

II.

We review the district court’s grant of summary

judgment de novo, “drawing reasonable inferences in the light

most favorable to the non-moving party.” Butler v. Drive Auto.

7 Indus. of Am., Inc.,

(4th Cir. 2015) (internal

quotation marks omitted). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

III.

We consider de novo the threshold legal question of

whether the district court properly abstained from ruling on

Appellant’s claims. See Cioca v. Rumsfeld,

, 508

n.4 (4th Cir. 2013) (describing the applicability of Feres v.

United States,

(1950), as a “threshold question”);

see also VonRosenberg v. Lawrence,

(4th Cir.

2015) (applying de novo review to abstention questions).

We first recognize that, at this juncture, Appellant

is seeking only “damages against [Appellees] in their individual

capacities.” Appellant’s Br. 22. Although in his opening brief

Appellant claims to seek “a declaration that Appellees’ actions

be declared unlawful under the Fourth Amendment,”

he

abandons any claim for equitable relief in his reply brief, see

Appellant’s Reply Br. 8 (“Col. Aikens’s claims for damages . . .

are the only claims he appeals.”); see also Oral Argument at

8:50-9:15, Aikens v. Ingram, No. 14-2419 (Dec. 9, 2015),

8 available at http://www.ca4.uscourts.gov/oral-argument/listen-

to-oral-arguments. 4

A.

The district court granted summary judgment on

Appellant’s claim for equitable relief by relying on the Fifth

Circuit’s decision in Mindes v. Seaman,

(5th Cir.

1971), which provides a four-factor test for reviewability of

claims based on internal military affairs. See also Williams v.

Wilson,

(4th Cir. 1985) (adopting the Mindes

test where a servicemember challenged the National Guard’s

empaneling of a selective retention board).

The parties agree that Mindes has traditionally

applied to actions seeking equitable relief, not damages. See

Appellees’ Br. 40 (observing that this court has “adopted the

use of the Mindes test in reviewing matters requesting equitable

relief in military actions” (emphasis supplied)); Appellant’s

Reply Br. 8 (“Mindes applies only to equitable relief.”). Thus,

since Appellant has abandoned his claim for equitable relief,

the logical conclusion is that Mindes has no place in our

analysis.

4 Appellant likewise fails to challenge the district court’s decision that he cannot collect damages from Appellees in their official capacities pursuant to the Eleventh Amendment; therefore, this argument is waived. See Yousefi v. INS,

, 326 (4th Cir. 2001).

9 However, some courts, including our own, have sent

mixed signals regarding whether Mindes applies to claims seeking

damages. See, e.g., Wilt v. Gilmore,

(4th

Cir. 2003) (per curiam) (relying on Mindes, affirming dismissal

of racial discrimination claims for $2.5 million in compensatory

damages against Virginia National Guard officers because

appellant did not exhaust administrative remedies); Holdiness v.

Stroud,

(5th Cir. 1987) (applying Mindes

test to § 1983 action seeking $1 million in damages).

Without passing on the continued viability of the

Mindes test in this circuit, 5 we only observe that in this

particular case, the test is an ill fit. Our published

decisions applying the Mindes test dealt with internal personnel

matters such as challenges to convening of retention boards and

military discharge. See Williams,

; Guerra v.

5 Since we adopted the Mindes test in Williams, we have applied it only once in a published opinion. See Guerra v. Scruggs,

(4th Cir. 1991) (applying Mindes test to declare unreviewable a servicemember’s challenge to his military discharge). Other circuits have rejected the Mindes test outright. See, e.g., Knutson v. Wisconsin Air Nat’l Guard,

(7th Cir. 1993) (“We disagree with . . . the adoption of the four-factor analysis in Mindes. As the Third Circuit has pointed out, the Mindes approach erroneously ‘intertwines the concept of justiciability with the standards to be applied to the merits of the case.’” (footnote omitted) (quoting Dillard v. Brown,

(3d Cir. 1981)); accord Kreis v. Sec’y of the Air Force,

(D.C. Cir. 1989).

10 Scruggs,

(4th Cir. 1991). The case at hand is

markedly different. Appellant alleges unconstitutional, ultra

vires actions by National Guard officers against Appellant while

he was serving in a federal capacity. As such, the Mindes test

has no place.

B.

Nonetheless, we must address whether Feres bars

Appellant from seeking damages under

.

1.

Originally, Feres stood for the proposition that the

Government is not liable under the Federal Tort Claims Act

(“FTCA”) “for injuries to servicemen where the injuries arise

out of or are in the course of activity incident to service.”

(the “Feres ‘incident to service’ test” or the

“Feres test”); see also United States v. Johnson,

(1987) (reaffirming the holding in Feres because “suits

brought by service members against the Government for injuries

incurred incident to service . . . are the type[s] of claims

that, if generally permitted, would involve the judiciary in

sensitive military affairs at the expense of military discipline

and effectiveness.” (alteration in original) (emphasis,

citation, and internal quotation marks omitted)).

Subsequently, the Supreme Court extended the Feres

“incident to service” test to causes of action outside the FTCA

11 realm, including claims against federal officials pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics,

(1971). See, e.g., Chappell v. Wallace,

(1983) (relying on Feres, holding that it

would be inappropriate to provide enlisted military personnel a

Bivens remedy against their superior officers, explaining,

“[c]ivilian courts must, at the very least, hesitate long before

entertaining a suit which asks the court to tamper with the

established relationship between enlisted military personnel and

their superior officers”); United States v. Stanley,

(1987) (where servicemember sued military officers for

giving him LSD as part of an Army experiment, holding, “no

Bivens remedy is available for injuries that ‘arise out of or

are in the course of activity incident to service’” (quoting

Feres,

)).

Although Stanley clarified that the Feres “incident to

service” test is applicable to constitutional claims under

Bivens, the Supreme Court has not extended the reasoning of

Chappell and Stanley and applied the test to constitutional

claims brought against state officers under

.

Nor have we. Almost all of our sister circuits, however, have

done so. See, e.g., Newton v. Lee,

(10th

Cir. 2012); Matreale v. N.J. Dep’t of Military & Veterans

Affairs,

(3d Cir. 2007); Speigner v.

12 Alexander,

, 1295 (11th Cir. 2001); Jones v. N.Y.

State Div. of Military & Naval Affairs,

(2d Cir.

1999); Bowen v. Oistead,

, 803 & n.2 (9th Cir.

1997); Wright v. Park,

(1st Cir. 1993); Knutson

v. Wisc. Air Nat’l Guard,

(7th Cir. 1993);

Watson v. Ark. Nat’l Guard,

, 1007 (8th Cir. 1989);

Crawford v. Tex. Army Nat’l Guard,

(5th Cir.

1986); see also Bois v. Marsh,

(D.C. Cir.

1986) (applying Feres to an intramilitary damages action under

(3)).

2.

We join our sister circuits in extending the Feres

“incident to service” test to § 1983 actions. This result is

supported by Supreme Court jurisprudence and respects the

delicate separation of powers necessary for smooth and effective

military governance.

First, because suits under both § 1983 and Bivens

address constitutional infringements by government officials,

the Supreme Court’s holding in Stanley is logically applicable

to § 1983 claims against state officials. Indeed, the Court has

declared, “[I]n the absence of congressional direction to the

contrary, there is no basis for according to federal officials a

higher degree of immunity from liability when sued for a

constitutional infringement as authorized by Bivens than is

13 accorded state officials when sued for the identical violation

under § 1983.” Butz v. Economou,

(1978).

This precept is especially important in a case

involving National Guard service members, as § 1983 actions

would create the same “degree of disruption” to Guard affairs as

Bivens actions would to “military discipline and decisionmaking

. . . [in a federalized] military regime.” Stanley,

. The Second Circuit explained,

absent some reasoned distinction, justiciability of constitutional tort actions incident to federal and state military service should be co-extensive. This is particularly true in light of the central role the National Guard plays in the national defense and the close working relationship between the National Guard and the United States Army. The policy concerns are the same in both contexts. Allowing § 1983 actions based on injuries arising incident to service in the Guard would disrupt military service and undermine military discipline to the same extent as allowing Bivens actions based on injuries arising incident to service in the United States Army.

Jones,

. We find this reasoning sensible and

persuasive.

Second, we generally decline to expand liability for

injuries arising from military service so as not to tread on the

delicate balance of power among the branches of government. The

Supreme Court has cautioned against interference with military

disputes in the absence of explicit congressional approval. See

14 Dep’t of Navy v. Egan,

(1988) (“[U]nless

Congress specifically has provided otherwise, courts

traditionally have been reluctant to intrude upon the authority

of the Executive in military . . . affairs.”); Feres,

(declining to draw out a cause of action against military

personnel under the FTCA “absen[t] express congressional

command”).

Likewise, this circuit has been wary of endorsing

actions for damages in military contexts. In Lebron v.

Rumsfeld, for example, a designated enemy combatant and al Qaeda

member, Jose Padilla, alleged numerous constitutional violations

at the hands of military officers, including torture and

unlawful designation and detention of enemy combatants. See

(4th Cir. 2012). Padilla urged this court to

imply a new Bivens cause of action for money damages against DOD

officials based on “a range of policy judgments pertaining to

the designation and treatment of enemy combatants.”

.

Declining to do so, we noted the “explicit constitutional

delegation of control over military affairs” to the political

branches of government.

. We also observed,

“whenever the Supreme Court has considered a Bivens case

involving the military, it has concluded that ‘the insistence

. . . with which the Constitution confers authority over the

Army, Navy, and militia upon the political branches . . .

15 counsels hesitation in our creation of damages remedies in this

field.’”

at 550 (quoting Stanley,

)

(alterations in original)); see also Cioca v. Rumsfeld,

(4th Cir. 2013) (where current and former service

members alleged they were victims of rape and sexual harassment

during military service, holding that no Bivens remedy was

available, explaining, “It is clear that expansion of a Bivens-

based cause of action [for monetary damages in a military

context] is the exception, not the rule.”).

We see no reason, then, to allow damages actions

pursuant to § 1983 against state officials for injuries suffered

incident to service -- that the Supreme Court has expressly

foreclosed against federal officials -- when Congress has not

expressly authorized them. Cf. Crawford,

(“Section 1983 . . . claims, like those predicated on Bivens,

invite judicial second-guessing of military actions and tend to

overlap the remedial structure created within each

service . . . .” (emphasis supplied)). We thus join our sister

circuits in applying the Feres test to § 1983 suits for damages

based on injuries sustained incident to service.

3.

We now address whether the Feres “incident to service”

test bars relief in the case at hand. To do so, we ask whether

the injuries of which Appellant complains -- search and seizure

16 of his emails in violation of the Fourth Amendment -- “ar[o]se

out of or [we]re in the course of activity incident to service.”

Feres,

; Cioca,

.

In the nearly 70 years since the decision, Feres and

its progeny have failed to produce a specific element-based or

bright-line rule regarding what type of conduct is “incident to

service.” See United States v. Shearer,

(1985)

(“The Feres doctrine cannot be reduced to a few bright-line

rules . . . .”). Indeed, the Supreme Court “explicitly rejected

a ‘special factors’ analysis which would consider how military

discipline would actually be affected in a particular case.”

Ricks v. Nickels,

(10th Cir. 2002)

(discussing Stanley,

). Rather, we look to

“whether ‘particular suits would call into question military

discipline and decisionmaking [and would] require judicial

inquiry into, and hence intrusion upon, military matters.’”

Cioca,

(quoting Stanley,

)

(alteration in original). In other words, “where a complaint

asserts injuries that stem from the relationship between the

plaintiff and the plaintiff’s service in the military, the

‘incident to service’ test is implicated.”

If this explanation sounds broad and amorphous, it is.

Feres has grown so broad that this court once noted, “the

Supreme Court has embarked on a course dedicated to broadening

17 the Feres doctrine to encompass, at a minimum, all injuries

suffered by military personnel that are even remotely related to

the individual’s status as a member of the military.” Stewart

v. United States,

(4th Cir. 1996) (quoting

Major v. United States,

(6th Cir. 1987))

(alteration omitted) (emphases in original); see also Erwin

Chemerinsky, Federal Jurisdiction 622 (5th ed. 2007) (“The law

is now settled that Bivens suits are never permitted for

constitutional violations arising from military service, no

matter how severe the injury or how egregious the rights

infringement.”).

Along these lines, we know that the situs of the

injury is not as important as “whether the suit requires the

civilian court to second-guess military decisions . . . and

whether the suit might impair essential military discipline.”

Shearer,

. We also know that a plaintiff need not

be on duty, see

(Feres barred suit where off-duty soldier

was injured off-base by another soldier), and application of the

Feres test does not depend on the military status of the alleged

offender, see United States v. Johnson,

(1987)

(“[T]his Court has never suggested that the military status of

the alleged tortfeasor is crucial to the application of the

doctrine.”). We do not even need to inquire “whether the

discrete injuries to the victim were committed in support of the

18 military mission.” Cioca,

(internal quotation

marks omitted).

Indeed,

“Incident to service” is not, of course, a narrow term restricted to actual military operations such as field maneuvers or small arms instruction. It has been held that a member of the military is engaged in activity incident to his military service when he is enjoying a drink in a noncommissioned officers club, and when he is riding a donkey during a ballgame sponsored by the Special Services division of a naval air station, and while swimming in a swimming pool at an airbase.

Hass for Use & Benefit of U.S. v. United States,

(4th Cir. 1975) (internal citations omitted) (holding that

Feres barred suit when an active-duty serviceman, who was

temporarily on off-duty status, was injured when riding a horse

he rented from a Marine Corps stable at Cherry Point military

base). As one might imagine, decisions on this point have run

the gamut. Compare Stewart,

(concluding that

appellant’s injuries from a car accident with another service

member were “incident to service” where appellant “was on active

duty at the time of the accident”; “the collision occurred on

the grounds of a military base”; and appellant “was engaged in

activity directly related to the performance of military

obligations when he was injured”); with Ricks,

(Ricks’s injuries were “incident to service,” even though he had

19 been fully discharged and was in a military prison at the time

of the injuries, because he was incarcerated for offenses

committed during active duty).

Against this backdrop, we readily conclude that

Appellant’s alleged injuries arose out of activity incident to

service. Appellant was on active duty, deployed in a war zone,

and used a computer system set up by the DOD for military

personnel deployed at Camp Doha. His computer usage was

indisputably regulated by AR 380-19, which clearly stated that

the system was to be used “only for authorized U.S. government

use”; use of the system, “authorized or unauthorized,”

constituted “consent to monitoring”; and “all communications

over the DOD system [could] be monitored.” J.A. 307. Taking

Appellant’s allegations as true, Ingram and von Jess directed

Jones and McCarthy to monitor Appellant’s emails on this DOD

computer system and forward them along because they wished to

enact revenge against him. Appellant may claim that this is an

“egregious . . . infringement” of his rights, Chemerinsky,

Federal Jurisdiction at 622, but there is no question that the

alleged infringement occurred incident to Appellant’s military

service.

That Appellant was a National Guardsman serving in a

federal capacity does not change the result. It is true that

when National Guardsmen are called to active duty, they “lose

20 their status as members of the state militia . . . .” Perpich

v. Department of Defense,

(1990).

Nonetheless, Feres has barred suit where a member of the state’s

National Guard, but also a dual-status federal technician, sued

the state adjutant general under § 1983 for conduct occurring

when he was serving in both capacities. See Walch v. Adjutant

Gen.’s Dep’t of Texas,

(5th Cir. 2008); see

also Misko v. United States,

(D.D.C. 1978)

(“[T]here is no longer any question that Feres applies with

equal force to members of the National Guard whose injuries are

incident to active military duty.”). The Third Circuit has

similarly explained that “concern for the disruption of the

unique relationship of military personnel to their superiors and

to other military personnel” could result “if one could hale

another into court as a result of activity incident to military

service.” Matreale v. N.J. Dep’t of Military & Veterans

Affairs,

(3d Cir. 2007). And we agree this

concern is “equally as compelling in the context of lawsuits

brought by [full-time state duty] guardsmen . . . as it is in

the context of lawsuits brought by [federal active duty]

guardsmen.”

Nor does it matter that at the time of the email

monitoring and forwarding, Appellees were not in Appellant’s

direct chain of command. See Stanley,

-81

21 (“Feres did not consider the officer-subordinate relationship

crucial, but established instead [the] ‘incident to service’

test . . . .”); cf. Johnson,

(“[T]his Court has

never suggested that the military status of the alleged

tortfeasor is crucial to the application of the doctrine.”).

For these reasons, we abstain from reviewing

Appellant’s § 1983 claim based on the Feres “incident to

service” test, and we thus affirm, albeit on other grounds, the

district court’s dismissal of this case.

IV.

Based on the foregoing, the judgment of the district

court is

AFFIRMED.

22 SHEDD, Circuit Judge, concurring:

I agree with the majority that the Feres “incident to

service” test warrants our abstention from reviewing Aikens’

§ 1983 claim. Although that determination is dispositive of this

appeal, I write briefly to express my view that even if Feres

were inapplicable, the summary judgment is affirmable based on

Aikens’ failure to present sufficient evidence to withstand the

summary judgment motion.

Aikens’ § 1983 claim is based on his contention that Ingram

and von Jess violated his Fourth Amendment rights, and Aikens

“grounds his Fourth Amendment claims in [their] personal

involvement in the searches and seizures of his emails.” Reply

Brief, at 12. In moving for summary judgment, Ingram and von

Jess presented evidence showing that they were not personally

involved in the email monitoring. Despite having had ample

opportunity, Aikens has failed to present any evidence to create

a genuine issue of material fact tending to show otherwise.

Instead, as the district court found, the record establishes

that Ingram and von Jess “were not involved, directly or

indirectly, in the [email] monitoring,” and “[n]o evidence has

been presented that demonstrates either defendant knew how the

emails were obtained. . . .” Aikens v. Ingram,

(E.D.N.C. 2014).

23 Aikens’ entire case is premised on conclusory allegations

and speculation. Of course, such “evidence” is insufficient to

withstand summary judgment. Humphreys & Partners Architects,

L.P. v. Lessard Design, Inc.,

(4th Cir. 2015).

Accordingly, Aikens’ § 1983 claim fails as a matter of law. For

this reason, in addition to the Feres “incident to service”

test, I believe the summary judgment should be affirmed.

24