Circuit Won’t Reopen Intercepted Email Case

     (CN) – The 4th Circuit declined to reopen the case of a former colonel in the North Carolina Army National Guard, who accused his colleagues of intercepting, reading and forwarding his emails while he was deployed in Iraq.

     The federal appeals court in Richmond, Va., held that Col. Frederick Aikens failed to establish the “extraordinary circumstances” needed for his case to be reopened.
     Aikens had sued his former colleagues, Adjutant Gen. William Ingram and Lt. Col. Peter von Jess, after he was investigated for a “hostile command climate and inappropriate relations with women.”
     He said the investigations were based on illegally intercepted emails, and they effectively forced him to resign.
Ingram had allegedly ordered two subordinate officers to monitor Aikens’ emails after Aikens gave von Jess a negative evaluation report.
     Ingram, who had picked von Jess to replace Aikens as executive officer after Aikens was promoted to colonel, invalidated the report. Aikens then filed a complaint for undue command influence.
     When Aikens learned that his emails were being used in the investigations, he sued in federal court. The case was dismissed, however, because he didn’t go through the proper military channels first.
     He then filed his claim with the Army Board for Correction of Military Records, which told him that “the remedy you seek is not within the purview” of the board.
Rather than file a new lawsuit, Aikens wanted his original claim reopened.
     U.S. District Judge James Dever III denied his motion, saying the retired colonel failed to present the “extraordinary circumstances” needed to reopen his case.
     The 4th Circuit upheld the ruling, rejecting the claim that Judge Dever had abused his discretion.
     “In short, Aikens’ posited predicament was as much the result of his management of the action as the result of the district court’s allegedly erroneous judgment of dismissal,” Judge Paul Niemeyer wrote.
     Judge Robert King dissented, saying Aikens’ claims would have been timely had Dever not erred in dismissing the original lawsuit.
     “This predicament was the direct result of the court’s mistake, not any misjudgment by Aikens or his lawyer,” King wrote.

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