Aubart v. Esper
Filing
33
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT re 9 - Signed by JUDGE LESLIE E. KOBAYASHI on 8/30/2018. On the basis of the foregoing, Defendants Motion to Dismis s, or in the Alternative, for Summary Judgment, filed March 13, 2018, is HEREBY GRANTED IN PART AND DENIED IN PART. Defendant's Motion is GRANTED insofar as the Complaint is DISMISSED. Defendant's Motion is DENIED insofar as the dismissal is WITHOUT PREJUDICE and the motion for summary judgment is not reached. Plaintiff must file his amended complaint, consistent with the terms of this Order, by no later than September 28, 2018. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KEVIN T. AUBART,
Plaintiff,
vs.
HONORABLE MARK T. ESPER,
SECRETARY OF THE ARMY,
Defendant.
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CIVIL 17-00611 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
On March 13, 2018, Defendant the Honorable Mark T.
Esper, Secretary of the Army, in his official capacity
(“Defendant”), filed his Motion to Dismiss, or in the
Alternative, for Summary Judgment (“Defendant’s Motion”).
no. 9.]
[Dkt.
Pro se plaintiff Kevin T. Aubart (“Plaintiff”) did not
file a memorandum in opposition to Defendant’s Motion.
April 30, 2018, Defendant filed his reply.
On
[Dkt. no. 20.]
On March 18, 2018, Plaintiff filed his Motion for
Summary Judgment (“Plaintiff’s Motion”).1
[Dkt. no. 13.]
On
April 23, 2018, Defendant filed a memorandum in opposition, and
Plaintiff filed his reply on May 6, 2018.
[Dkt. nos. 19, 21.]
The Motions came on for hearing on May 14, 2018.
At the hearing,
Plaintiff’s Motion was denied without prejudice because Plaintiff
1
Defendant’s Motion and Plaintiff’s Motion will be referred
to collectively as the “Motions.”
had not filed a concise statement of facts.
5/14/18 (dkt. no. 22).]
[Minutes, filed
Defendant’s Motion is hereby granted in
part insofar as the Complaint is dismissed and denied in part
insofar as the dismissal is without prejudice and the motion for
summary judgment is not reached.
Plaintiff’s Motion is construed
as his opposition to Defendant’s Motion.
To the extent
Plaintiff’s Motion seeks an affirmative ruling on his claims, it
is hereby denied without prejudice.
BACKGROUND
Plaintiff filed his Complaint on December 28, 2017.
[Dkt. no. 1.]
Plaintiff alleges federal question jurisdiction.
[Id. at ¶ 4.]
Plaintiff is a full-time, civilian Department of
the Army employee assigned to the Regional Cyber Center - Pacific
(“RCCP”), in Fort Shafer, Hawai`i.
[Id. at ¶ 1.]
On February 2, 2017, Lieutenant Colonel Christopher M.
Siegrist (“LTC Siegrist”) issued to Plaintiff and others a
memorandum with the subject: “Temporary Duty Relocation” (“2/2/17
Memorandum”).
[Def.’s Concise Statement of Facts in Supp. of
Def.’s Motion (“Def.’s CSOF”), filed 3/13/18 (dkt. no. 10), Decl.
of LTC Christopher Siegrist (“Siegrist Decl.”), Exh. 1 at 1.2]
The 2/2/17 Memorandum stated, in part:
2
On the district court’s electronic filing system,
Exhibit 1 contains multiple documents and is not consecutively
paginated. All citations to the documents within Exhibit 1 refer
to the page numbers assigned by this district court’s electronic
filing system.
2
1.
This memorandum is to inform you of a
temporary change in your duty station from
the Regional Cyber Center Pacific (RCC-P),
Fort Shafter, Hawaii to BLDG 1500 Schofield
Barracks effective February 18, 2017.
2.
The RCC-P will undergo major renovations
within the office and building. As a result,
you will be temporarily reassigned to BLDG
1500 Schofield Barracks, where you will
continue to perform the same essential job
functions that you now perform. We
anticipate the completion in 14 weeks and
will provide you sufficient notice in
returning to Fort Shafter.
[Id.]
LTC Siegrist allegedly “ordered Plaintiff to drive his
[personally owned vehicle (‘POV’)] to an alternate work site for
official government business, beyond Plaintiff’s normal commute,
from February 26 through November 14, 2017,” and refused to
provide mileage reimbursement for the additional commuting
expense.
[Complaint at ¶ 8.]
On April 26, 2017, LTC Siegrist
emailed Plaintiff and others and stated that requests for
reimbursement for the additional commuting distance to Schofield
Barracks would be denied (“4/26/17 Email”).
Exh. 1 at 6.]
LTC Siegrist explained:
[Siegrist Decl.,
“As of now, the legal
determination is that DA Civilians and Soldiers are not
authorized mileage costs.
Based on this legal determination, all
submitted requests will be denied; It [sic] is not within my
authority to grant approvals.”
[Id.]
Plaintiff asserts the
refusal to provide reimbursement was wrongful under 5 U.S.C.
3
§ 5704; 41 C.F.R. §§ 301-2.2, 301-10.1, 301-10.300; and the
applicable Joint Travel Regulations (“JTR”) regarding local
travel.
[Complaint at ¶ 8.]
Plaintiff seeks compensation for
his travel expenses, and appears to seek an injunction and
unspecified equitable relief.
[Id. at ¶ 9 & Prayer for Relief.]
The instant Motion seeks dismissal of the Complaint
with prejudice.
In the alternative, Defendant seeks summary
judgment on the grounds that Plaintiff’s travel to Schofield
Barracks was his commute to his permanent duty station.
Defendant contends Plaintiff’s reimbursement request was properly
denied because he sought reimbursement for personal business, not
official business.
DISCUSSION
I.
Jurisdiction
Defendant states that, “[w]hile not explicitly
mentioned in Plaintiff’s complaint, Defendant will assume this
court has jurisdiction under the ‘Little Tucker Act,’” 28 U.S.C.
§ 1346(a)(2).
[Mem. in Supp. of Def.’s Motion at 7.]
District
“court[s have] an independent duty to address jurisdiction . . .
‘even when [jurisdictional defects are] not otherwise
suggested.’”
Yamada v. Kuramoto, 744 F. Supp. 2d 1075, 1080 (D.
Hawai`i 2010) (some citations omitted) (quoting Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003,
140 L. Ed. 2d 210 (1998)).
4
The Ninth Circuit has “read the Tucker Act and the
Littler Tucker Act together to provide for jurisdiction solely in
the Court of Federal Claims for Tucker Act claims seeking more
than $10,000 in damages, and concurrent district court
jurisdiction over claims seeking $10,000 or less.”
Tritz v.
United States Postal Serv., 721 F.3d 1133, 1137 (9th Cir. 2013)
(footnote, citation, and internal quotation marks omitted).
The
Little Tucker Act allows United States district courts to
exercise jurisdiction over “claim[s] against the United States,
not exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract
with the United States . . . .”
§ 1346(a)(2).
[T]he Tucker Act does not create any substantive
right enforceable against the United States for
money damages, but merely confers jurisdiction
when such a right is conferred elsewhere. When
the source of such alleged right is a statute, it
can only support jurisdiction if it qualifies, as
most statutes do not, as money-mandating.
Corrigan v. United States, 694 F. App’x 798, 801 (Fed. Cir. 2017)
(internal citations and quotation marks omitted).
The Federal
Travel Regulations (“FTR”), 41 C.F.R. Chapter 300, are moneymandating and support Tucker Act jurisdiction even where an
employee asserts an unmeritorious claim for reimbursement of
travel expenses.
Corrigan, 694 F. App’x at 801-02; see also In
Re Bohlinger, No. 15802-TRAV, 2002 WL 31122144 (G.S.B.C.A.
5
Sept. 24, 2002) (under the JTR, a Department of Defense employee
traveling within the Washington, D.C., area to attend certain
trainings was “entitled to be reimbursed for mileage that
exceeded his normal commuting distance”); In Re Riley,
No. 15392-TRAV, 2001 WL 43960 (G.S.B.C.A. Jan. 17, 2001)
(interpreting the JTR as mandating mileage reimbursement for use
of an employee’s POV for a twenty-two mile local commute to an
alternate duty site); In re Gailey, B-220110, 1985 WL 50823
(Comp. Gen. Dec. 17, 1985) (Under JTR, Army employee was
“entitled to be paid mileage from his place of abode to his
alternate duty point and return”).
The instant Complaint relies
on money-mandating provisions of the FTR and JTR regarding
reimbursement of travel expenses.
At the hearing on the Motions,
the parties indicated Plaintiff’s claim is for an amount less
than $10,000.
This Court is satisfied jurisdiction exists under
the Little Tucker Act.
At the hearing on the Motions, Plaintiff appeared to
criticize RCCP as making an error of law when it determined it
lacked discretion to pay his mileage reimbursement claim.
Although it is not clear, it is possible Plaintiff seeks:
a
declaratory judgment that applicable sources of law provided the
agency discretion to approve his reimbursement request, and that
the agency abused its discretion by erroneously concluding it
lacked authority; and an injunction requiring the agency to
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reconsider his reimbursement request.
Jurisdiction may be
appropriate under the Administrative Procedure Act, to the extent
Plaintiff seeks relief “other than money damages,” 5 U.S.C.
§ 702.
See Matsuo v. United States, 416 F. Supp. 2d 982, 992-94
(D. Hawai`i 2006) (concluding federal employees’ action for,
inter alia, declaratory and injunctive relief supported
jurisdiction under the Administration Procedure Act).
However,
it is unclear what equitable relief, if any, Plaintiff seeks.
In
light of the disposition of Defendant’s Motion, and because an
amended complaint may clarify the basis for the Court’s
jurisdiction, the Court need not reach whether jurisdiction is
proper under the Administrative Procedure Act.
II.
Consideration of Exhibits
“[G]enerally the scope of review on a motion to dismiss
for failure to state a claim is limited to the Complaint.”
See
Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
2010).
“[A] court may consider evidence on which the complaint
necessarily relies if: (1) the complaint refers to the document;
(2) the document is central to the plaintiff’s claim; and (3) no
party questions the authenticity of the copy attached to the
12(b)(6) motion.”
omitted).
Id. (citations and internal quotation marks
Ordinarily, consideration of other materials requires
the district court to convert a motion to dismiss into a motion
for summary judgment.
Yamalov v. Bank of Am. Corp., CV. No.
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10–00590 DAE–BMK, 2011 WL 1875901, at *7 n.7 (D. Hawai`i May 16,
2011) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th
Cir. 1998)).3
The 2/2/17 Memorandum and the 4/26/17 Email meet all of
the requirements stated in Daniels–Hall.
The Complaint refers to
the documents, and they are central to Plaintiff’s claim that he
was ordered to travel farther than his normal commute and
wrongfully denied reimbursement.
No party questions the
authenticity of the 2/2/17 Memorandum and 4/26/17 Email.
These
documents therefore be considered without converting Defendant’s
Motion into a motion for summary judgment.
The Court has not
considered any portion of Defendant’s CSOF aside from the 2/2/17
Memorandum and the 4/26/17 Email.
III. Defendant’s Motion Is Not Unopposed
Defendant argues that, because Plaintiff failed to file
a memorandum in opposition, Defendant’s Motion should be granted.
[Reply in Supp. of Def.’s Motion at 2.]
Plaintiff is appearing
pro se and the Court liberally construes his pleadings.
See
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally
construe the ‘inartful pleading’ of pro se litigants.” (citing
Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 701, 70 L.
3
Parrino was superseded by statute on other grounds, as
stated in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681–82
(9th Cir. 2006) (per curiam).
8
Ed. 2d 551 (1982) (per curiam))).
The Court notes that
Plaintiff’s Motion responds to and opposes Defendant’s Motion and
therefore liberally construes it as a memorandum in opposition to
Defendant’s Motion.
IV.
Whether Plaintiff Plausibly Alleges
Travel to a Temporary Duty Location
At the hearing on the Motions, the parties disputed
whether Schofield Barracks should be considered a permanent duty
station (“PDS”) or a temporary duty location (“TDY”), also called
an alternate work site or alternate duty point.
This Court
liberally construes the Complaint as alleging the 2/2/17
Memorandum ordered Plaintiff to report to Schofield Barracks,
which was a TDY.
Plaintiff’s entitlement to relief requires, at least,
that his travel to Schofield Barracks was travel to a TDY.
“It
is well settled that an employee [commuting to his PDS] is
performing personal business, not official business,” and
therefore “the transportation costs that the employee incurs
while commuting” are not reimburseable.
In re Conforti,
828-TRAV, 2007 WL 3055016 (C.B.C.A. Oct. 3, 2007) (citing Freddie
G. Fenton, GSBCA 13638-TRAV, 97-1 BCA ¶ 28,712 (1996)).4
If
Schofield Barracks were his PDS, Plaintiff’s travel to and from
4
Fenton is also available at 1996 WL 528818.
9
there would constitute his ordinary commute.
Any additional
mileage or costs incurred would therefore not be reimburseable.
In order to qualify as an employee’s PDS, certain
factors must be present.
In Conforti, an employee sought
reimbursement for local mileage expenses after he was ordered to
report to Herndon, Virginia, which is twenty-two miles from his
former office in Washington, D.C., and his commute consequently
increased from 3.5 miles to 21.5 miles.
Id.
The Civilian Board
of Contract Appeals (“CBCA”) stated:
An agency has discretion to determine how to treat
an assignment, i.e., a permanent change of duty
station or a temporary duty assignment. Whether
assignment to a particular station is temporary or
permanent is a question of fact to be determined
from the orders directing the assignment, the
duration of the assignment, and the nature of the
duties performed. Another factor to consider is
the location where an employee expects, and is
expected, to spend the greater part of his time.
Id. (internal citation omitted).
Here, Plaintiff simply alleges
his travel to Schofield Barracks was travel to a TDY.
Plaintiff’s pro se status does not require this Court to accept
as true “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in
the complaint as true, we “are not bound to accept as true a
10
legal conclusion couched as a factual allegation” (internal
quotation marks omitted))).
In order to allege a claim for relief, Plaintiff must
plausibly allege his travel to Schofield Barracks was travel to a
TDY.
To survive a motion to dismiss, at a minimum, Plaintiff
must have “plead[ed] factual content that allows the court to
draw the reasonable inference that” Schofield Barracks was
Plaintiff’s TDY.
fails to do so.
See id. (citation omitted).
The Complaint
Because Plaintiff alleges only the bare
conclusion that his travel was to a TDY, the Complaint must be
dismissed.
At the hearing on the Motions, Plaintiff indicated he
could allege facts sufficient to plausibly allege his travel to
Schofield Barracks was travel to a TDY.
Because it is not
absolutely clear that no amendment can cure the identified
defects, the Complaint is dismissed without prejudice.
See Lucas
v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)
(“Unless it is absolutely clear that no amendment can cure the
defect, . . . a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to
dismissal of the action.”).
This Court CAUTIONS Plaintiff that, if he files an
amended complaint, he must allege sufficient facts to allow the
Court, guided by the factors identified in Conforti, to draw the
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reasonable inference that his travel to Schofield Barracks was
travel to a TDY.
Further, if Plaintiff files an amended complaint, it
must state all of the claims that he is making and it must
contain all of the facts, all of the legal theories, and all of
the exhibits that his claims rely upon.
Plaintiff cannot rely
upon or incorporate by reference any portion of any of his
original Complaint.
This Court ORDERS Plaintiff to file his amended
complaint by September 28, 2018.
This Court CAUTIONS Plaintiff
that, if he fails to file his amended complaint by September 28,
2018, all of the claims that this Court dismissed without
prejudice in this Order will be dismissed with prejudice, and
this Court will direct the Clerk’s Office to issue the final
judgment and close the case.
In other words, Plaintiff would
have no remaining claims in this case.
This Court also CAUTIONS
Plaintiff that, as to any claim that was dismissed without
prejudice, if the amended complaint fails to cure the defects
identified in this Order, the claim may be dismissed with
prejudice.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss, or in the Alternative, for Summary Judgment, filed
March 13, 2018, is HEREBY GRANTED IN PART AND DENIED IN PART.
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Defendant’s Motion is GRANTED insofar as the Complaint is
DISMISSED.
Defendant’s Motion is DENIED insofar as the dismissal
is WITHOUT PREJUDICE and the motion for summary judgment is not
reached.
Plaintiff must file his amended complaint, consistent
with the terms of this Order, by no later than September 28,
2018.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 30, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
KEVIN AUBART VS. MARK T. ESPER, ETC.; CV 17-00611 LEK-KJM; ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
13
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