Frederick Aikens v. William Ingram, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1334

FREDERICK AIKENS,

Plaintiff – Appellant,

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: February 1, 2013 Decided: May 2, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion. Judge
Thacker wrote a separate opinion concurring in part and
dissenting in part.

ARGUED: William Woodward Webb, Sr., EDMISTEN & WEBB, Raleigh,
North Carolina, for Appellant. Jess D. Mekeel, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: William Woodward Webb, Jr., THE EDMISTEN, WEBB & HAWES
LAW FIRM, Raleigh, North Carolina, for Appellant. Roy Cooper,
North Carolina Attorney General, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Frederick Aikens, who served for thirty-two years in the

North Carolina Army National Guard, herein attempts for the

second time to have his claims against former colleagues William

E. Ingram, Jr., and Peter von Jess heard on the merits. In the

protracted first round of proceedings, the district court

granted the defendants’ motion to dismiss for lack of

jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of

Civil Procedure, on the ground that Aikens was required, but had

failed, to exhaust remedies with the Army Board for Correction

of Military Records (the “ABCMR”). See Aikens v. Ingram, No.

5:06-cv-00185 (E.D.N.C. Sept. 13, 2007) (the “First Dismissal

Order”). 1 Aikens then took this matter to the ABCMR, but, as

Aikens had predicted it would, the ABCMR deemed itself powerless

to act on his application.

Consequently, Aikens returned to the district court,

asserting that he was entitled to relief from the First

Dismissal Order under Federal Rule of Civil Procedure 60(b) as a

result of the court’s erroneous exhaustion ruling. The court

nonetheless held a different view, that Aikens was ineligible

for Rule 60(b) relief. See Aikens v. Ingram, No. 5:06-cv-00185

1
The district court’s First Dismissal Order is published as
Aikens v. Ingram, 513 F. Supp. 2d 586 (E.D.N.C. 2007).

3
(E.D.N.C. Nov. 5, 2008) (the “Rule 60(b) Order”). 2 On appeal, a

three-judge panel of our Court affirmed the judgment by a 2-1

vote, see Aikens v. Ingram, 612 F.3d 285 (4th Cir. 2010), a

decision that was subsequently vacated with the grant of

rehearing en banc. Ultimately, however, we again affirmed the

judgment, this time by a 7-5 vote. See Aikens v. Ingram, 652

F.3d 496 (4th Cir. 2011) (en banc) (“Aikens I”).

Two days after we issued our en banc Aikens I decision,

Aikens initiated this second round of proceedings in the Eastern

District of North Carolina, asserting claims against Ingram and

von Jess that are identical to previously dismissed claims. The

defendants then successfully moved for dismissal under Rule

12(b)(6) — the district court having credited their contention

that the claims are now time-barred. See Aikens v. Ingram, No.

5:11-cv-00371 (E.D.N.C. Feb. 27, 2012) (the “Second Dismissal

Order”). 3 In the appeal now before us, Aikens contests the

Second Dismissal Order, and, as explained below, we reverse and

remand for further proceedings.

2
The unpublished Rule 60(b) Order is found at J.A. 91-99.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
3
The unpublished Second Dismissal Order is found at J.A.
165-70.

4
I.

Aikens’s allegations against defendants Ingram and von Jess

are described more thoroughly in Aikens I. It serves our

present purposes to note simply that Aikens last served in the

North Carolina Army National Guard with the rank of Colonel and

as commanding officer of the 139th Rear Operations Center.

Aikens alleges that between April and November 2003, while he

was deployed to Kuwait in support of Operation Iraqi Freedom,

the defendants illegally intercepted his email and forwarded it

to his wartime commanders to substantiate allegations that he

had engaged in a hostile command environment and inappropriate

relationships with women. According to Aikens, the defendants’

conduct led to several investigations and compelled his

constructive discharge from the National Guard.

As he did in his initial complaint (the “First Complaint”),

Aikens asserts two claims against the defendants in his present

complaint (the “Second Complaint”): a 42 U.S.C. § 1983 claim

for violation of his Fourth Amendment rights, and a claim for

invasion of privacy under North Carolina law. 4 It is accepted

4
Aikens filed the First Complaint on April 27, 2006, and
amended it on May 4, 2006. The First Complaint differed from
the Second Complaint only in that the former alleged the state
law claim, plus a separate federal cause of action, against two
additional defendants. By the First Dismissal Order, those two
(Continued)
5
that Aikens’s claims accrued on November 24, 2003, when Aikens

discovered that his email had been intercepted, and that each

claim is subject to a three-year statute of limitations. Thus,

absent a tolling thereof, Aikens’s claims would have been barred

after November 24, 2006. He filed his First Complaint with 212

days left in the unmodified limitations period, on April 27,

2006.

The district court issued its First Dismissal Order on

September 13, 2007, dismissing without prejudice the First

Complaint against Ingram and von Jess “so that plaintiff may

exhaust his intraservice administrative remedies with ABCMR.”

First Dismissal Order 12. The court observed that “[d]ismissing

the [First Complaint] without prejudice grants deference to the

military to handle its own affairs.” Id. at 8. Additionally,

the court stated that, “[i]f the ABCMR does not have

jurisdiction, it will take no action and plaintiff may return to

federal court.” Id. A conforming judgment was entered on

September 14, 2007.

defendants were dismissed without prejudice for failure to
achieve service of process. See First Dismissal Order 10-12.
The First Dismissal Order also reflects the court’s
understanding, with respect to Ingram and von Jess, that Aikens
by then was pursuing his § 1983 claim only and was not seeking
relief under North Carolina law. See id. at 4.

6
Aikens filed his application with the ABCMR less than a

month later, on October 10, 2007. The ABCMR rejected Aikens’s

application for lack of jurisdiction on February 6, 2008, within

four months of the First Dismissal Order. The ABCMR’s letter to

Aikens explained that “it has been determined that your

application and the remedy you seek is not within the purview of

the ABCMR.” J.A. 44.

On March 31, 2008, within two months of the ABCMR’s

decision, Aikens returned to the district court, moving under

Rule 60(b) of the Federal Rules of Civil Procedure for relief

from the First Dismissal Order. Aikens specifically cited

clause (6) of Rule 60(b), which authorizes a court to relieve a

party from a final judgment for “any other reason [not spelled

out in clauses (1)-(5)] that justifies relief,” and which

requires the movant to demonstrate “extraordinary

circumstances,” see Valero Terrestrial Corp. v. Paige, 211 F.3d

112, 118 n.2 (4th Cir. 2000). In so doing, Aikens explained to

the court that Rule 60(b)(6) relief was necessary to avoid any

statute of limitations problem, and he indicated that he was

entitled to such relief because the court had erred in ordering

exhaustion of intraservice remedies and thereby jeopardizing the

timeliness of his claims. Aikens also invoked the court’s

statement in the First Dismissal Order that, if he were proved

7
correct about the ABCMR’s lack of jurisdiction, he could “return

to federal court.”

The district court issued its Rule 60(b) Order more than

seven months later, on November 5, 2008. The court clarified

therein that, in stating in the First Dismissal Order that

Aikens could “return to federal court,” it “was not implying

that plaintiff could return to court in this action.” Rule

60(b) Order 7. “Rather,” the court explained, it “was making

the unremarkable observation that if the ABCMR determined that

it lacked jurisdiction, nothing in the [First Dismissal Order]

would prevent plaintiff from filing a new action against Ingram

and von Jess.” Id.

Nevertheless, the district court also recognized that the

three-year statute of limitations on Aikens’s § 1983 claim had

“seemingly expired . . . on November 24, 2006,” more than nine

months before the court issued its First Dismissal Order. See

Rule 60(b) Order 8. The court found it unnecessary to “resolve

[the limitations period] issue definitively,” explaining that,

“[i]f plaintiff files a new action, and defendants assert the

statute-of-limitations defense, the court will then address the

issue.” Id. at 8 n.1. For purposes of resolving Aikens’s Rule

60(b) motion, the court deemed it sufficient to conclude that

Aikens was at fault for his statute of limitations predicament

and thus ineligible for Rule 60(b)(6) relief. Id. at 8-9

8
(observing that Aikens should have attempted to exhaust

intraservice remedies prior to filing First Complaint, or should

have filed First Complaint earlier in limitations period in

anticipation of court’s ruling that exhaustion was required).

On November 10, 2008, Aikens promptly noted his appeal to

this Court, where the matter resided for nearly three years,

undergoing both panel and en banc consideration. By our en banc

Aikens I decision of July 13, 2011, the seven-judge majority

“conclude[d] that the district court did not abuse its

discretion in finding that Aikens did not demonstrate the

‘extraordinary circumstances’ necessary to employ Rule 60(b)(6)

as a bypass around routinely available procedures, particularly

when his failure to use those procedures was the product of his

strategic litigation choices.” 652 F.3d at 502. The majority

identified “multiple procedural mechanisms that Aikens could

have used to pursue his claim,” including an appeal in this

Court from the First Dismissal Order, a request for a stay

pending exhaustion of intraservice remedies, and the filing of a

new action following such exhaustion. Id. at 502-03.

Significantly, five of the seven judges of the Aikens I

majority joined in a concurring opinion proclaiming that the

district court could have found “extraordinary circumstances”

meriting Rule 60(b)(6) relief, but did not abuse its discretion

in ruling to the contrary. See 652 F.3d at 504-05 (Diaz, J.,

9
concurring) (acknowledging that, “[w]ere I the district judge in

this case, I might well have reached a conclusion different from

that below and granted Aikens’s Rule 60(b)(6) motion”).

Meanwhile, the five dissenting judges jointly declared that the

district court not only could, but should, have found

“extraordinary circumstances” and reinstated the First

Complaint. See id. at 512-13 (King, J., dissenting) (“Put

simply, the abuse of discretion standard of review does not

confer upon a district court carte blanche to close its doors to

a litigant who is merely following the court’s own advice.”).

With respect to the filing of a new action, the full Aikens

I majority noted that, “[a]t oral argument, Aikens’ counsel

conceded that had he filed a new action instead of a Rule

60(b)(6) motion, it would have been timely filed and not subject

to a statute of limitations defense.” 652 F.3d at 503. The

majority also observed, however, that it was “not clear when

Aikens’ cause of action accrued, and Aikens’ counsel agreed that

he did not know what tolling provisions might apply or how they

might apply.” Id. The majority abstained from any effort to

pinpoint the beginning and end of the applicable limitations

period — which thus, in the wake of Aikens I, remained an “open

question.” See id. at 516-17 (King, J., dissenting)

(recognizing that, “notwithstanding counsel’s understandable

efforts to keep from conceding as stale any sort of claim his

10
client may yet pursue, the precise date by which Aikens was

required to file in order to forestall a legitimate limitations

defense remains very much an open question”).

Unlike the seven judges in the Aikens I majority, who

refrained from any assessment of whether Aikens could yet assert

timely claims, the five dissenting judges delved into the issue

and agreed “that Aikens may yet have his day in court

notwithstanding the majority’s decision today.” 652 F.3d at 518

(King, J., dissenting). The dissenters so concluded because

“[t]he North Carolina courts recognize the general principle

that ‘time frames may be tolled where equitable considerations

justify their suspension.’” Id. at 517 (quoting Republic

Indus., Inc. v. Teamsters Joint Council No. 83 of Va. Pension

Fund, 718 F.2d 628, 644 (4th Cir. 1983), quoted in Fairway

Outdoor Adver. v. Edwards, 678 S.E.2d 765, 771 (N.C. Ct. App.

2009)).

On July 15, 2011, when our en banc Aikens I decision was

just two days old, Colonel Aikens filed the Second Complaint in

the district court, re-asserting his 42 U.S.C. § 1983 and North

Carolina invasion of privacy claims against defendants Ingram

and von Jess. Seven months later, on February 27, 2012, the

court issued its Second Dismissal Order, granting the

defendants’ motion to dismiss on the ground that the Second

11
Complaint’s claims were barred by the applicable three-year

statutes of limitation.

As the district court explained, because “§ 1983 does not

provide for a statute of limitations, the analogous state

statute of limitations is applied.” Second Dismissal Order 3

(citing Nat’l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161

(4th Cir. 1991)); see also Hardin v. Straub, 490 U.S. 536, 539

(1989) (instructing that “[l]imitations periods in § 1983 suits

are to be determined by reference to the appropriate state

statute of limitations and the coordinate tolling rules”

(internal quotation marks omitted)). “In North Carolina, the

analogous state statute of limitations is three years.” Second

Dismissal Order 3 (citing Nat’l Adver. Co., 947 F.2d at 1162).

A North Carolina “invasion of privacy claim is also governed by

a three year statute of limitations.” Id. (citing Losing v.

Food Lion, L.L.C., 648 S.E.2d 261, 265 (N.C. Ct. App. 2007)).

Applying those North Carolina statutes of limitation, the

district court recognized “that the date upon which Plaintiff’s

causes of action accrued is apparent on the face of his

complaint” — that date being November 24, 2003, when Aikens

allegedly was first informed that Ingram had used illegal means

to obtain Aikens’s email. See Second Dismissal Order 4. The

court then determined that, “[e]ven if neither the time during

which Plaintiff’s original district court action was pending nor

12
the time during which his ABCMR proceeding was pending should be

counted against the limitations period, Plaintiff’s clock began

to run again following the adjudication of his claim by the

ABCMR.” Id. at 4-5. “Accordingly,” the court concluded that

“Plaintiff’s limitations period more than expired during the

three years between dismissal by the ABCMR on February 6, 2008,

and Plaintiff’s filing of the instant action on July 15, 2011.”

Id. at 5.

In ruling thusly, the district court rejected Aikens’s

contention that, in the circumstances of these proceedings, the

doctrine of equitable tolling further extended the limitations

period for the time that his Rule 60(b) motion was pending in

that court and on appeal. The district court acknowledged — “as

discussed by the dissent in [Aikens I]” — that “North Carolina

courts have certainly recognized the principle of equitable

tolling.” Second Dismissal Order 5. But the district court

perceived that North Carolina courts “have only found [equitable

tolling’s] application appropriate in circumstances where the

actions of the defendant have somehow caused the plaintiff to

fail to pursue his claim within the limitations period.” Id.

(emphasis omitted). The district court observed that the

defendants herein had done nothing “that might be construed as

deceitful or misleading such that Plaintiff’s cause of action

was concealed.” Id. Moreover, the court deemed itself obliged

13
to consider “the actions or inactions of Plaintiff” discussed by

the Aikens I majority in affirming the court’s prior denial of

Rule 60(b)(6) relief. Id. at 5-6 (citing Aikens I, 652 F.3d at

502-03).

The district court summarized that, “[b]ecause Plaintiff’s

complaint in this action was filed well-outside the three year

statutes of limitations, and the Court finds no basis upon which

to equitably toll the applicable limitations periods,

Plaintiff’s complaint must be dismissed.” Second Dismissal

Order 6. Aikens has filed a timely notice of appeal from the

judgment entered on February 29, 2012, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Generally, we review de novo a district court’s dismissal

of a complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). See Coleman v. Md. Court of Appeals, 626 F.3d 187,

190 (4th Cir. 2010). When a dismissal on limitations grounds is

predicated on the denial of equitable tolling, however, we

review the court’s ruling for abuse of discretion. See Rouse v.

Lee, 339 F.3d 238, 247 n.6 (4th Cir. 2003) (en banc). In any

event, “a district court by definition abuses its discretion

when it makes an error of law.” See Rice v. Rivera, 617 F.3d

802, 811 (4th Cir. 2010) (internal quotation marks omitted).

14
III.

As noted above, there were 212 days left in the three-year

limitations period when Colonel Aikens filed his First Complaint

on April 27, 2006. Under North Carolina law, the statute of

limitations was tolled between April 27, 2006, and September 13,

2007, when the district court issued its First Dismissal Order.

See Long v. Fink, 342 S.E.2d 557, 559 (N.C. Ct. App. 1986)

(explaining that “the statute of limitations is tolled when suit

is properly instituted, and it stays tolled as long as the

action is alive” (emphasis omitted)). Only 200 days elapsed

between the court’s issuance of the September 13, 2007 First

Dismissal Order and Aikens’s submission of his Rule 60(b) motion

on March 31, 2008, and there was just a two-day gap between our

en banc Aikens I decision of July 13, 2011, and Aikens’s filing

of his Second Complaint on July 15, 2011. Thus, the Second

Complaint’s claims are timely if the doctrine of equitable

tolling was operational during the three-year-plus period that

the Rule 60(b) motion underwent consideration by first the

district court and then our Court.

When it declined to apply equitable tolling herein, the

district court evinced an understanding that such doctrine

equates to equitable estoppel. Indeed, each of the North

Carolina decisions cited in the Second Dismissal Order — Duke

15
University v. Stainback, 357 S.E.2d 690 (N.C. 1987), and Nowell

v. Great Atlantic & Pacific Tea Co., 108 S.E.2d 889 (N.C. 1959)

— involved the use of equitable estoppel to disallow statute of

limitations defenses in circumstances where the plaintiffs’

delays in filing claims were engendered by the conduct of

defendants. The Supreme Court of North Carolina explained in

those decisions that “[e]quity will deny the right to assert the

defense of the statute of limitations when delay has been

induced by [the defendant’s] acts, representations, or conduct,

the repudiation of which would amount to a breach of good

faith.” Stainback, 357 S.E.2d at 693 (paraphrasing Nowell, 108

S.E.2d at 891). Other state and federal courts are generally in

agreement that equitable estoppel requires wrongdoing by the

defendant — wrongdoing that, as the district court properly

recognized, is absent from this case. See Second Dismissal

Order 5.

Importantly, however, equitable estoppel is not necessarily

the same as equitable tolling. See Chung v. U.S. Dep’t of

Justice, 333 F.3d 273, 278-79 (D.C. Cir. 2003) (describing

differences between equitable estoppel and equitable tolling);

Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.

1990) (same); Felty v. Graves-Humphreys Co., 785 F.2d 516, 519

(4th Cir. 1986) (same). When distinguishing the two doctrines,

courts have generally clarified that equitable estoppel requires

16
the defendant’s wrongdoing, while equitable tolling does not.

See, e.g., Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878

(5th Cir. 1991) (“Equitable tolling focuses on the [plaintiff],

not on any possible misconduct by the [defendant].”); Williams

v. Bd. of Review, 948 N.E.2d 561, 567 (Ill. 2011) (“Unlike the

related doctrine of equitable estoppel, equitable tolling

requires no fault on the part of the defendant.”); Kaiser v.

Umialik Ins., 108 P.3d 876, 880 (Alaska 2005) (“[E]quitable

estoppel turns on wrongdoing by the party invoking the statute

of limitations, while our equitable tolling rule looks only to

the claimant’s circumstances . . . .”).

Some courts “have used the terms ‘equitable tolling’ and

‘equitable estoppel’ interchangeably.” McAllister v. FDIC, 87

F.3d 762, 767 n.4 (5th Cir. 1996). At times, both the Supreme

Court of the United States and our Court have referred to

“equitable tolling” when describing “equitable estoppel.” See

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)

(observing that “[w]e have allowed equitable tolling in

situations . . . where the complainant has been induced or

tricked by his adversary’s misconduct into allowing the filing

deadline to pass”); Harris v. Hutchinson, 209 F.3d 325, 330 (4th

Cir. 2000) (noting that equitable tolling has been applied where

“the plaintiffs were prevented from asserting their claims by

some kind of wrongful conduct on the part of the defendant”

17
(internal quotation marks omitted)). But, typical of other

courts, neither we nor the Supreme Court has limited equitable

tolling to equitable estoppel-type circumstances.

Furthermore, courts have employed equitable tolling “in a

variety of contexts and have developed differing parameters for

its application.” See Hooper v. Ebenezer Senior Servs. & Rehab.

Ctr., 687 S.E.2d 29, 32-33 (S.C. 2009) (recognizing that “[t]he

equitable power of a court is not bound by cast-iron rules but

exists to do fairness and is flexible and adaptable to

particular exigencies” (internal quotation marks omitted)).

Pertinent here, for example, the Supreme Court has “allowed

equitable tolling in situations where the claimant has actively

pursued his judicial remedies by filing a defective pleading

during the statutory period,” including where the plaintiff

timely filed his complaint in the wrong court. See Irwin, 498

U.S. at 96 & n.3 (citing Burnett v. N.Y. Cent. R.R. Co., 380

U.S. 424 (1965)). In deeming equitable tolling to be

appropriate in such circumstances, the Supreme Court has

reasoned that tolling is justified because the defendant

received timely notice of the plaintiff’s claims, there was no

resulting prejudice, and the plaintiff acted with diligence.

See Burnett, 380 U.S. at 429-30; cf. Baldwin Cnty. Welcome Ctr.

v. Brown, 466 U.S. 147, 151-52 (1984) (rejecting equitable

tolling request where, though there was an “absence of

18
prejudice,” plaintiff “fail[ed] to act diligently” and did not

file any complaint within applicable limitations period).

Those three concerns underlie an equitable tolling test

that has been adopted by the highest courts of several states.

Under that test, as set forth by the Supreme Court of Alaska,

the doctrine of equitable tolling has been applied to
halt the running of the statute of limitations when
multiple legal remedies are available to the plaintiff
and time runs out on one remedy while the plaintiff is
pursuing another unavailing remedy. A claim for
tolling has three elements: (1) pursuit of the
initial remedy must give defendant notice of
plaintiff’s claim, (2) defendant’s ability to gather
evidence must not be prejudiced by the delay, and (3)
plaintiff must act reasonably and in good faith.

Kaiser, 108 P.3d at 881-82 (footnotes, alterations, and internal

quotation marks omitted); see also, e.g., McDonald v. Antelope

Valley Cmty. Coll. Dist., 194 P.3d 1026, 1031-32 (Cal. 2008)

(citing Collier v. City of Pasadena, 191 Cal. Rptr. 681 (Cal.

Ct. App. 1983)); Let the People Vote v. Bd. of Cnty. Comm’rs,

120 P.3d 385, 389 (Mont. 2005). Those courts have “warn[ed]

against application of [equitable tolling] to what is at best a

garden variety claim of excusable neglect,” Weidow v. Uninsured

Emp’rs Fund, 246 P.3d 704, 709 (Mont. 2010) (internal quotation

marks omitted), but have found equitable tolling to be

appropriate “where a first action, embarked upon [reasonably

and] in good faith, is found to be defective for some reason,”

McDonald, 194 P.3d at 1032. In the latter scenario, equitable

19
tolling is fair to both parties, in that “it secures the

benefits of the statutes of limitation for defendants without

imposing the costs of forfeiture on plaintiffs.” Collier, 191

Cal. Rptr. at 686; see also Weidow, 246 P.3d at 709

(“[L]imitation periods are designed to ensure justice by

preventing surprise, but no surprise exists when defendants are

already on notice of the substantive claims being brought

against them.” (internal quotation marks omitted)).

For its part, North Carolina has ample precedent discussing

equitable estoppel — including Stainback and Nowell — but no

controlling decision addressing equitable tolling. Thus, our

job is to predict how the Supreme Court of North Carolina, as

the state’s highest court, would rule on the legal issues

underlying Aikens’s equitable tolling request. Cf. Horace Mann

Ins. Co. v. Gen. Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th

Cir. 2008) (“Because we are sitting in diversity, our role is to

apply the governing state law, or, if necessary, predict how the

state’s highest court would rule on an unsettled issue.”). In

making our prediction, decisions of the Court of Appeals of

North Carolina, as the state’s intermediate appellate court,

“constitute the next best indicia of what state law is.”

Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153,

1156 (4th Cir. 1992) (internal quotation marks omitted).

20
In Fairway Outdoor Advertising v. Edwards, the North

Carolina court of appeals recognized that “‘[t]ime frames may be

tolled where equitable considerations justify their

suspension.’” 678 S.E.2d 765, 771 (N.C. Ct. App. 2009) (quoting

Republic Indus., Inc. v. Teamsters Joint Council No. 83 of Va.

Pension Fund, 718 F.2d 628, 644 (4th Cir. 1983)). Specifically,

the doctrine of equitable tolling informed the court’s analysis

of whether the plaintiff had acted within a reasonable time to

remove a billboard from the defendants’ premises following

termination of the relevant lease. In that regard, the court

explained that “[t]he question of reasonable time in this case

may be answered by applying the legal principle that diligent

prosecution of related non-frivolous litigation should be taken

into account in determining whether a party’s time for action

has passed.” Id. On the facts before it — that the plaintiff

had brought a non-frivolous, albeit unsuccessful, declaratory

judgment action the day after the lease expired and attempted to

remove the sign within two weeks of the decision in the

defendants’ favor — the court concluded that the plaintiff had

“not yet exhausted the reasonable time allowed for removal of

the sign.” Id.

Similarly, in Republic Industries, we determined that a

non-frivolous challenge to the constitutionality of certain

arbitration procedures tolled the running of the statutory

21
period for initiating those procedures. See 718 F.2d at 644.

In so ruling on the premise that “time frames may be tolled

where equitable considerations justify their suspension,” id.,

we relied on Burnett, wherein the Supreme Court of the United

States applied equitable tolling to save the second Federal

Employers Liability Act (“FELA”) suit of a litigant who had

first timely filed in the wrong court. See Burnett, 380 U.S. at

429-30. The Burnett decision has also made several appearances

in opinions of the North Carolina court of appeals. See

Carlisle v. CSX Transp., Inc., 668 S.E.2d 98, 105-07 (N.C. Ct.

App. 2008) (applying Burnett’s equitable tolling principles to

FELA action pending in North Carolina state courts); Cacha v.

Montaco, Inc., 554 S.E.2d 388, 393 (N.C. Ct. App. 2001)

(explaining, in course of rejecting plaintiffs’ claim for

equitable tolling of statute of repose, that Burnett “sp[oke]

only to tolling of statutes of limitation”); Bruce v. Bruce, 339

S.E.2d 855, 858 (N.C. Ct. App. 1986) (acknowledging that the

benefit of statutes of limitation “is often outweighed ‘where

the interests of justice require vindication of the plaintiff’s

rights’” (quoting Burnett, 380 U.S. at 428)). 5

5
Like many other courts, including the Supreme Court of the
United States and our Court, the North Carolina court of appeals
has used the term “equitable tolling” to describe “equitable
estoppel,” see Town of Pineville v. Atkinson/Dyer/Watson
Architects, P.A., 442 S.E.2d 73, 74-75 (N.C. Ct. App. 1994), but
(Continued)
22
It is not surprising that the North Carolina court of

appeals has not only freely invoked Burnett and other equitable

tolling decisions, but also has treated them as uncontroversial.

After all, “[t]ime requirements in lawsuits between private

litigants are customarily subject to equitable tolling[.]”

Irwin, 498 U.S. at 95 (internal quotation marks omitted).

Moreover, although the North Carolina supreme court has not

explicitly endorsed equitable tolling, that doctrine is entirely

consistent with the court’s jurisprudence. Cf. Liberty Mut.

Ins. Co., 957 F.2d at 1156 (observing that decisions of a

state’s intermediate appellate court “may be disregarded if the

federal court is convinced by other persuasive data that the

highest court of the state would decide otherwise” (internal

quotation marks omitted)).

In harmony with the widely accepted purpose of equitable

tolling, the North Carolina supreme court has aptly described

time limitations as “strik[ing] a delicate balance between the

rights of the diligent plaintiff who should not be barred from

pursuing a meritorious claim and the defendant who deserves

protection from stale claims after a viable defense may be

weakened because of dead witnesses or forgotten facts.” Black

has also, when it needed to do so, differentiated between the
two doctrines, see Cacha, 554 S.E.2d at 393.

23
v. Littlejohn, 325 S.E.2d 469, 476 (N.C. 1985). Even the

court’s equitable estoppel decisions — which deem “not

essential” any showing of “[a]ctual fraud, bad faith, or an

intent to mislead or deceive” — reflect more concern for

protecting the plaintiff than punishing the defendant.

Stainback, 357 S.E.2d at 692; accord Gore v. Myrtle/Mueller, 653

S.E.2d 400, 405 (N.C. 2007) (“There need not be actual fraud,

bad faith, or an intent to mislead or deceive for the doctrine

of equitable estoppel to apply.”). The court has emphasized

that equitable estoppel’s “‘compulsion is one of fair play,’”

Nowell, 108 S.E.2d at 891 (quoting McNeely v. Walters, 189 S.E.

114, 115 (N.C. 1937)), a notion that comports with the

recognition of equitable tolling.

We are thus convinced that North Carolina is among the

jurisdictions that embrace the mainstream view that equitable

tolling — and not just equitable estoppel — may serve to extend

a statute of limitations. Accordingly, we conclude that the

district court abused its discretion by ruling in its Second

Dismissal Order, as a matter of North Carolina law, that

equitable tolling applies only in equitable estoppel-type

circumstances.

The equitable tolling test most appropriate to the facts of

Colonel Aikens’s case derives from the Burnett decision of the

24
Supreme Court of the United States. Under that test, which the

Burnett Court applied to a plaintiff who had timely filed his

first complaint in the wrong court, we must consider whether

defendants Ingram and von Jess received timely notice of

Aikens’s claims, whether the defendants have been prejudiced by

delay of the litigation, and whether Aikens has acted with

diligence. See 380 U.S. at 429-30; see also, e.g., Kaiser, 108

P.3d at 881-82 (recognizing that a Burnett-type test is

appropriate where “multiple legal remedies [were] available to

the plaintiff and time [ran] out on one remedy while the

plaintiff [was] pursuing another unavailing remedy”).

First of all, there is no dispute that the defendants had

timely notice of Aikens’s claims, in that he filed the First

Complaint with 212 days left in the unmodified limitations

period, and subsequently re-alleged the same claims in the

Second Complaint. Furthermore, there has been no showing that

the defendants have suffered prejudice; rather, the defendants

have simply pointed to the passage of time since Aikens’s claims

accrued, without identifying any specific way in which they have

been prejudiced, such as the loss of critical evidence.

Finally, we are satisfied that Aikens acted both diligently

and reasonably in filing his Rule 60(b) motion, followed by the

Second Complaint. See Burnett, 380 U.S. at 429-30 (requiring

diligence); Kaiser, 108 P.3d at 881-82 (necessitating

25
reasonableness). As for diligence, since the district court

issued its First Dismissal Order, the longest time Aikens has

taken to pursue a next step in the pursuit of his claims is

fifty-four days (less than eight weeks) — the amount of time

that passed between the February 6, 2008 decision of the ABCMR

repudiating jurisdiction over Aikens’s claims and the filing of

his Rule 60(b) motion in the district court on March 31, 2008.

At that point, the applicable limitations period, having been

tolled during the pendency of the First Complaint, had not yet

run. Moreover, fifty-four days of delay, weighed in the context

of six years of Aikens’s persistent and steadfast efforts to

sustain this litigation, hardly evidences a lack of diligence.

With respect to reasonableness, Aikens’s Rule 60(b) motion

cannot be called anything but reasonable. At the time of the

motion, the defendants had taken the position — a position that

they continue to espouse — that the statutes of limitation on

Aikens’s claims had expired on November 24, 2006, more than nine

months prior to the district court’s issuance of its First

Dismissal Order. Meanwhile, under Aikens’s interpretation of

the First Dismissal Order, the court had assured him that he

could “return to federal court” if he were proved correct about

the ABCMR’s lack of jurisdiction. See First Dismissal Order 8.

Although the court thereafter denied Rule 60(b)(6) relief,

clarifying that it had not meant to “imply[] that plaintiff

26
could return to court in [the same] action,” see Rule 60(b)

Order 7, five of the twelve judges of our en banc Court agreed

with Aikens’s interpretation. See Aikens I, 652 F.3d at 509

(King, J., dissenting) (observing that, in light of the district

court’s “explicit[] assur[ance]” that Aikens “could ‘return to

federal court,’” he “understandably chose to file his Rule 60(b)

motion”).

Even more significantly, ten of our twelve judges

recognized that the district court could have granted Aikens’s

Rule 60(b) motion in the exercise of its discretion. See Aikens

I, 652 F.3d at 505 (Diaz, J., concurring) (“While the principal

dissent convincingly demonstrates that the district court could

have granted Aikens’s motion, it fails to establish that failure

to grant the motion was so beyond the pale that it constitutes

an abuse of discretion.” (emphasis omitted)); id. at 512 (King,

J., dissenting) (“[H]ad the district court been inclined to

grant Aikens’s Rule 60(b) motion, it certainly had the

discretion to do so . . . .”). As such, Rule 60(b)(6) relief

was a feasible legal remedy that Aikens reasonably pursued. 6

6
Of course, our Aikens I majority concluded that Aikens’s
neglect in availing himself of some additional avoidance
options, such as appealing the First Dismissal Order or
requesting a stay, supported the district court’s conclusion
that Aikens had failed to demonstrate the extraordinary
circumstances necessary to reopen the First Complaint pursuant
to Rule 60(b)(6). See 652 F.3d at 502-03; see also Second
(Continued)
27
Because of the manifest presence here of each of the

relevant conditions for equitable tolling — notice, lack of

prejudice, and diligent and reasonable action — we conclude that

equitable tolling was operational during the period that

Aikens’s Rule 60(b) motion was being considered by the district

court and our Court. Accordingly, the § 1983 and state law

Dismissal Order 5-6 (suggesting that “the actions or inactions
of Plaintiff” discussed by the Aikens I majority must inform the
present equitable tolling analysis). Importantly, however, the
pertinent equitable tolling test does not require that Aikens
made perfect litigation choices, only reasonable ones. See,
e.g., Lozeau v. GEICO Indem. Co., 207 P.3d 316, 319-20 (Mont.
2009) (applying equitable tolling where plaintiff first filed in
tribal court that was later determined to lack jurisdiction);
McDonald, 194 P.3d at 1029 (same where plaintiff first
voluntarily pursued internal administrative remedy); Solomon v.
Interior Reg’l Hous. Auth., 140 P.3d 882, 884-85 (Alaska 2006)
(same where plaintiff first filed in federal court).

Some other equitable tolling tests, applicable in different
contexts, necessitate a showing of extraordinary circumstances.
See, e.g., Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en
banc) (observing, with respect to habeas corpus claims, that
“[e]quitable tolling is appropriate when, but only when,
extraordinary circumstances beyond the petitioner’s control
prevented him from complying with the statutory time limit”
(alteration and internal quotation marks omitted)). In any
event, because we deal here with the superficially untimely
Second Complaint, which Aikens was compelled to file as a
consequence of our en banc affirmance of the denial of Rule
60(b)(6) relief, an assessment of extraordinary circumstances
for purposes of equitable tolling would encompass new factors.
For example, we certainly would consider the fact that we
conducted an en banc proceeding, which was itself an
extraordinary event. See Fed. R. App. P. 35(a) (explaining that
rehearing en banc is disfavored and will not be granted except
to maintain uniformity of decisions or to resolve questions “of
exceptional importance”).

28
claims alleged in his subsequent Second Complaint are not time-

barred, and the contrary Second Dismissal Order must be

reversed. 7

IV.

Pursuant to the foregoing, we reverse the Second Dismissal

Order and remand for such other and further proceedings as may

be appropriate.

REVERSED AND REMANDED

7
Of course, as our good colleague emphasizes in her
separate opinion, another option would be to vacate and remand
for the district court to apply the pertinent equitable tolling
test in the first instance. We see such a remand as unnecessary
here, however. There is no real dispute concerning notice,
prejudice, or diligence, leaving solely the question of whether
Aikens acted reasonably in filing his Rule 60(b) motion. The
district court’s only sustainable answer to that question would
be “yes,” since ten of our twelve judges in Aikens I agreed that
Aikens’s Rule 60(b) motion could have been granted, thereby
rendering the motion patently reasonable.

29
THACKER, Circuit Judge, concurring in part and dissenting in
part:

I concur in the majority’s conclusion that the district

court erred, as a matter of law, in holding that North Carolina

would not recognize the doctrine of equitable tolling outside of

the equitable estoppel context.

However, with all due respect to my good colleagues, I

cannot agree with the majority’s decision to determine, for the

first time on appeal, that the balance of the equities in this

case warrants the application of equitable tolling at this

point. Rather, in my view, this matter should be remanded to

permit the district court to exercise its discretion as to the

application of equitable tolling to the facts presented.

Accordingly, I respectfully concur in part and dissent in part.

In this case, “[t]he operative review standard in the end

will depend on what aspect of the lower court’s decision is

challenged.” Belot v. Burge, 490 F.3d 201, 206 (2d Cir. 2007).

Specifically, to the extent the district court’s decision rested

on a conclusion of law, that aspect of the decision should be

reviewed de novo. See Smith v. Pennington, 352 F.3d 884, 892

(4th Cir. 2003) (“[T]o the extent a challenge to the denial of

tolling is not to the existence of certain facts, but instead

rests on whether those facts demonstrate a failure to bring a

timely claim, resolution of this challenge turns on questions of

30
law which are reviewed de novo.”) (internal quotation marks and

citations omitted). To the extent the district court’s decision

rested on an application of law to fact, that aspect of the

decision should be reviewed for an abuse of discretion. See id.

(“[A]s to all circumstances other than where the relevant facts

are undisputed and the district court denied equitable tolling

as a matter of law, we review the denial of tolling below for

abuse of discretion.”) (internal citations and quotation marks

omitted).

Here, the district court’s opinion rested entirely on its

conclusion that, as a matter of North Carolina law, equitable

tolling is not cognizable outside of the equitable estoppel

context. However, this conclusion was in error. As the

majority properly recounts, while there is no controlling

Supreme Court of North Carolina decision addressing equitable

tolling, the lion’s share of the pertinent authority --

including cases from the United States Supreme Court, other

state appellate courts, the United States Circuit Courts of

Appeal, and North Carolina intermediate appellate courts --

clearly recognizes that the doctrine of equitable tolling is

more broad than the doctrine of equitable estoppel insofar as

the latter requires misconduct on the part of the defendant

while the former does not. As a result, I do not hesitate to

concur with the majority’s holding on this question.

31
Unfortunately, the majority and I part ways at Part C. of

the majority opinion. Application of the law of equitable

tolling to the facts of a particular case is ordinarily a matter

within the district court’s discretion in the first instance.

Given that here the district court erroneously concluded that

North Carolina law would not countenance equitable tolling

outside of the equitable estoppel context, the district court

has not yet had the opportunity to consider the operation of

equitable tolling to the facts of this case. Therefore, I must

dissent from this aspect of the majority opinion: I would remand

this case to permit the district court to determine whether

equitable tolling is, in fact, warranted on these facts.

We should be reluctant to substitute our judgment for that

of the district court, as the majority does here, because, as we

have long held, “the abuse of discretion standard requires a

reviewing court to show enough deference to a primary decision-

maker’s judgment that the court does not reverse merely because

it would have come to a different result in the first instance.”

Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,

322 (4th Cir. 2008). 1

1
In concluding that the facts of this case support the
operation of equitable tolling, the majority opinion relies
extensively on the concurring and dissenting opinions from our
previous en banc decision in Aikens I. See ante at 26.
However, neither the majority nor the dissent in Aikens I
(Continued)
32
As noted, the district court has not yet had the

opportunity to apply the legal test announced in this opinion --

that is, whether “defendants Ingram and von Jess received timely

notice of Aikens’s claims, whether the defendants have been

prejudiced by delay of the litigation, and whether Aikens has

acted with diligence[,]” -- to the operative facts. See ante at

25 (citing Burnett v. N.Y. Cent. R. Co., 380 U.S. 424 (1965)).

In my view, remand would allow the parties to properly brief the

issue in light of the governing legal standard announced herein

(see ante at 25) and, similarly, would permit the district court

to supplement the record if needed. Cf. Davani v. Va. Dep’t of

Transp., 434 F.3d 712, 720 (4th Cir. 2006) (“While the district

court’s failure to address these legal arguments below does not

alone prevent us from addressing them on appeal, prudence

counsels that, because of the undeveloped state of the record,

we refrain from doing so at this time.”) (internal citations

omitted).

Finally, I note the disposition I propose finds support in

the cases of this circuit, as we have repeatedly remanded cases

to the district court after finding that the district court

directs the ultimate outcome of this case on this issue at this
point, as Aikens I posed a separate question -- whether this
case involves sufficiently extraordinary circumstances to
warrant Rule 60(b)(6) relief -- than the one posed here.

33
abused its discretion by failing to adequately take into account

a recognized judicial factor or after announcing a new legal

principle on appeal. See, e.g., DIRECTV, Inc. v. Rawlins, 523

F.3d 318, 330 n.14 (4th Cir. 2008) (“Having clarified the proper

course of analysis that must govern a district courts exercise

of discretion in awarding damages, we find it prudent to allow

the district court to reconsider the application of that

analysis in the first instance.”); Rosciszewski v. Arete

Assocs., 1 F.3d 225, 234 (4th Cir. 1993) (reversing and

remanding case to permit the district court to exercise its

discretion in light of a newly announced legal principle). 2

For these reasons, I respectfully concur in part and

dissent in part.

2
Other courts have taken this approach in the specific
context of equitable tolling. See, e.g., Townsend v. Comm’r of
Soc. Sec., 415 F.3d 578 (6th Cir. 2005); Daviton v. Columbia/HCA
Corp., 241 F.3d 1131 (9th Cir. 2001).