                              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


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.
THACKER, Circuit Judge:

              Colonel Frederick Aikens (“Appellant”) challenges the

district      court’s     grant    of   summary       judgment        on   his    42   U.S.C.

§ 1983    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, 453

F.2d    197   (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, 340 U.S. 135 (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,      71   F.    Supp.    3d      562,    565-66     (E.D.N.C.

                                              2
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., 793 F.3d 404, 407

(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.



                                         3
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.



                                               4
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     42        U.S.C.   §    1983, 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.



                                               5
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, 340 U.S. 135

(1950).

            The district court ultimately agreed that Appellant’s

claims were nonjusticiable, albeit under the framework set forth

in Mindes v. Seaman, 453 F.2d 197 (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 28 U.S.C. § 1291.

                                        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.

                                         6
Indus. of Am., Inc., 793 F.3d 404, 407 (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, 720 F.3d 505, 508

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

United States, 340 U.S. 135 (1950), as a “threshold question”);

see also VonRosenberg v. Lawrence, 781 F.3d 731, 734 (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,”       id.,   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),




                                         7
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, 453 F.2d 197 (5th Cir.

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

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

Wilson, 762 F.2d 357, 359 (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, 260
F.3d 318, 326 (4th Cir. 2001).



                                              8
            However,       some    courts,         including     our    own,   have     sent

mixed signals regarding whether Mindes applies to claims seeking

damages.     See, e.g., Wilt v. Gilmore, 62 F. App’x 484, 487 (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, 808 F.2d 417, 422-23 (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, 762 F.2d at 359; 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, 942 F.2d 270, 276 (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,
995 F.2d 765, 768 (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, 652 F.2d 316, 323 (3d Cir. 1981));
accord Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1512
(D.C. Cir. 1989).



                                               9
Scruggs, 942 F.2d 270, 276 (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 42 U.S.C. § 1983.

                                       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.”

340 U.S. at 146 (the “Feres ‘incident to service’ test” or the

“Feres test”); see also United States v. Johnson, 481 U.S. 681,

690   (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

                                       10
realm, including claims against federal officials pursuant to

Bivens     v.     Six     Unknown       Named        Agents      of     Federal     Bureau   of

Narcotics, 403 U.S. 388 (1971).                      See, e.g., Chappell v. Wallace,

462 U.S. 296, 300 (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, 483 U.S.

669, 684 (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, 340 U.S. at 146)).

            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 42 U.S.C. § 1983.

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

done so.        See, e.g., Newton v. Lee, 677 F.3d 1017, 1025 (10th

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

Affairs,        487     F.3d     150,    154        (3d     Cir.      2007);      Speigner    v.

                                                11
Alexander, 248 F.3d 1292, 1295 (11th Cir. 2001); Jones v. N.Y.

State Div. of Military & Naval Affairs, 166 F.3d 45, 51 (2d Cir.

1999); Bowen v. Oistead, 125 F.3d 800, 803 & n.2 (9th Cir.

1997); Wright v. Park, 5 F.3d 586, 591 (1st Cir. 1993); Knutson

v. Wisc. Air Nat’l Guard, 995 F.2d 765, 770 (7th Cir. 1993);

Watson v. Ark. Nat’l Guard, 886 F.2d 1004, 1007 (8th Cir. 1989);

Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1036 (5th Cir.

1986); see also Bois v. Marsh, 801 F.2d 462, 470 (D.C. Cir.

1986) (applying Feres to an intramilitary damages action under

42 U.S.C. § 1985(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

                                       12
accorded state officials when sued for the identical violation

under § 1983.”     Butz v. Economou, 438 U.S. 478, 500 (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, 483 U.S. at

682-83.   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, 166 F.3d at 51-52.             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     inference       with    military

disputes in the absence of explicit congressional approval.                      See

                                        13
Dep’t   of    Navy    v.     Egan,      484    U.S.      518,    530    (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, 340 U.S.

at 146 (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 670

F.3d 540, 546-47 (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.”                                   Id. at 547.

Declining     to     do     so,   we     noted       the    “explicit            constitutional

delegation of control over military affairs” to the political

branches     of    government.            Id.       at    549.         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       .     .   .

                                               14
counsels hesitation in our creation of damages remedies in this

field.’”           Id.    at    550   (quoting     Stanley,       483    U.S.      at   682)

(alterations in original)); see also Cioca v. Rumsfeld, 720 F.3d

505,    510   (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,       794    F.2d     at   1036

(“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

                                             15
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, 340 U.S. at 146; Cioca, 720 F.3d at 511.

               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, 473 U.S. 52, 57 (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,       295    F.3d     1124,       1130    (10th       Cir.      2002)

(discussing      Stanley,      483    U.S.     at   681).         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,    720    F.3d    at    515    (quoting      Stanley,       483      U.S.    at   682)

(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.”                     Id.

               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

                                             16
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, 90 F.3d 102, 105 (4th Cir. 1996) (quoting

Major v. United States, 835 F.2d 641, 6644 (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, 473 U.S. at 57.                 We also know that a plaintiff need not

be on duty, see id. (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, 481 U.S. 681, 686 (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

                                             17
military mission.”       Cioca, 720 F.3d at 515 (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, 518 F.2d 1138,

1141 (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, 90 F.3d at 104-05 (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, 295 F.3d at 1132

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


                                      18
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

                                                19
their status as members of the state militia . . . .”                                         Perpich

v.    Department         of    Defense,             496     U.S.       334,      347          (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, 533 F.3d 289, 296 (5th Cir. 2008); see

also Misko v. United States, 453 F. Supp. 513, 514 (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, 487 F.3d 150, 158 (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.”       Id.

            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,          483   U.S.        at    680-81

                                                20
(“Feres did      not    consider      the    officer-subordinate       relationship

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

test . . . .”); cf. Johnson, 481 U.S. at 686 (“[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.




                                            21
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, 71 F.Supp.3d 562,

571-72 (E.D.N.C. 2014).



                                              22
       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., 790 F.3d 532, 540 (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.




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