Aubart v. Esper

Filing 52

ORDER Granting In Part and Denying In Part Defendant's Motion To Dismiss re 37 ."On the basis of the foregoing, Defendant's Motion to Dismiss Plaintiff's Amended Complaint, filed October 1, 2018, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED insofar as Plaintiff's FTCA claim is DISMISSED, and DENIED insofar as the dismissal is WITHOUT PREJUDICE. The Motion is also DENIED as to Plaintiff's TDY Travel claim.Plaintiff is GRANTED leave to file a second amended complaint by February 13, 2019. This Court CAUTIONS Plaintiff that, if he fails to file his second amended complaint by February 13, 2019, his FTCA claim will be dismissed with prejudice, and the case will proceed only as to Plaintiff's TDY Travel claim. This Court also CAUTIONS Plaintiff that, if the second amended complaint fails to cure the defects in his FTCA claim that are identified in this Order, the claim may be dismissed with prejudice. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on 1/17/2019. (cib)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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.
)
_____________________________ )

CIVIL 17-00611 LEK-KJM

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS
On October 1, 2018, Defendant the Honorable Mark T.
Esper, Secretary of the Army, in his official capacity
(“Defendant”), filed his Motion to Dismiss Plaintiff’s Amended
Complaint (“Motion”).

[Dkt. no. 37.]

Pro se Plaintiff Kevin T.

Aubart (“Plaintiff”) filed his memorandum in opposition on
October 30, 2018, and Defendant filed his reply on November 16,
2018.

[Dkt. nos. 44, 47.]

On November 24, 2018, Plaintiff filed

a supplement to his memorandum in opposition (“Supplemental
Memorandum”).

[Dkt. no. 50.1]

The Court finds this matter

suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawaii (“Local Rules”).

1

See EO: Court Order Construing Plaintiff’s November 24,
2018 Filing as a Supplement to His Memorandum in Opposition,
Filed October 30, 2018, filed 12/4/18 (dkt. no. 51).

Defendant’s Motion is hereby granted in part and denied in part
for the reasons set forth below.
BACKGROUND
Plaintiff filed his original Complaint in this matter
on December 28, 2017.

[Dkt. no. 1.]

On March 13, 2018,

Defendant filed his motion to dismiss the Complaint, or in the
alternative, for summary judgment.

[Dkt. no. 9.] On August 30,

2018, this Court issued an order granting in part and denying in
part Defendant’s motion to dismiss, and granting Plaintiff leave
to file an amended complaint (“8/30/18 Order”).

[Dkt. no. 33.2]

The relevant factual background is set forth in the 8/30/18 Order
and will not be repeated here.

In the 8/30/18 Order, the Court

identified the deficiencies in Plaintiff’s original Complaint and
cautioned Plaintiff that, if he chose to file an amended
complaint, he must “allege sufficient facts to allow the Court,
guided by the factors identified in [In re] Conforti[, 828-TRAV,
2007 WL 3055016 (C.B.C.A. Oct. 3, 2007),] to draw the reasonable
inference that his travel to Schofield Barracks was travel to a
[temporary duty location].”

[8/30/18 Order at 11-12.]

Plaintiff filed his Amended Complaint on September 16,
2018.

[Dkt. no. 36.]

2

In the Amended Complaint, Plaintiff again

The 8/30/18 Order is also available at 2018 WL 4168997.
2

alleges that, on February 2, 2017,3 Lieutenant Colonel
Christopher Siegrist (“LTC Siegrist”) ordered Plaintiff to drive
his personally owned vehicle (“POV”) to Building 1500 on
Schofield Barracks to perform Plaintiff’s official duties, while
Plaintiff’s work location at Fort Shafter was being renovated.
[Amended Complaint at pg. 2, ¶¶ 4-5.]

The anticipated amount of

time Plaintiff was expected to report to Schofield Barracks was
approximately fourteen weeks.

Plaintiff alleges Fort Shafter is

his “fixed, permanent work location” where his employment records
are kept, and where he regularly performs his duties.

[Id. at

pg. 2, ¶ 3.]
Plaintiff and other Regional Cyber Center - Pacific
(“RCCP”) employees commuted to Schofield Barracks from
February 26, 2017 through November 14, 2017.

In April 2017,

Plaintiff requested a partial reimbursement for mileage incurred
beyond his normal commuting distance, which Defendant allegedly
denied.

[Id. at pg. 2., ¶ 6.]

Plaintiff alleges that, on

June 2, 2017, Defendant “filed a ‘RCCP Director’s Declaration’
with the [Civilian Board of Contract Appeals (“CBCA”)]”; the RCCP
Director’s Declaration stated in pertinent part that Plaintiff’s

3

Plaintiff’s Amended Complaint alleges the date of
LTC Siegrist’s signed memorandum is “February 2, 2018”; however,
Plaintiff cites to Exhibit A to the Amended Complaint, which is a
memorandum digitally signed by LTC Siegrist dated February 2,
2017. [Amended Complaint, Exh. A (Department of the Army
memorandum regarding Temporary Duty Relocation, dated 2/2/17
(“2/2/17 Memorandum”)).]
3

“official duty station would be changed for a period of
approximately fourteen weeks and that their new duty station
would be located at Building 1500 on Schofield Barracks.”

[Id.

at pg. 3, ¶ 7, Exh. B (Decl. of LTC Christopher Siegrist
(“LTC Siegrist Decl.”), at ¶ 3.]
Plaintiff also alleges all of his Standard Form 50
documents, prior to and after his assignment at Schofield
Barracks, indicated Fort Shafter was Plaintiff’s “Official
Station,” and Plaintiff was never issued a “DD Form 1614
permanent travel order to Schofield [Barracks].”
Complaint at 7-8.]

[Amended

Plaintiff alleges his travel to Schofield

Barracks was within the local area of his permanent duty station
(“PDS”) at Fort Shafter, for government business and during
official duty hours, and RCCP employees were never informed that
their official duty stations would be changed, or that Schofield
Barracks was their new duty station.

Plaintiff alleges that,

ordinarily, his commute from his residence to Fort Shafter is two
miles, one way, while his commute from his residence to Schofield
Barracks was twenty miles round trip.

[Id. at pgs. 11-12.]

Plaintiff also alleges Defendant filed the RCCP Director’s
Declaration four months after Plaintiff’s work location changed,
and after a complaint had been filed with the CBCA, to sway this

4

Court and the CBCA into believing a permanent change of station
(“PCS”) had occurred.4

[Id. at pg. 21, ¶¶ 8-7.]

Plaintiff alleges Defendant was negligent pursuant to
the Federal Tort Claims Act (“FTCA”), and seeks $50,000 in
damages (“FTCA claim”).
for Relief at ¶ 4.]

[Id. at pg. 22, ¶ 11 & pg. 23, Prayer

Plaintiff also seeks reimbursement of all

travel expenses related to his commute to Schofield Barracks
(“TDY Travel claim”), and all costs associated with the instant
litigation.

Plaintiff also appears to seek an injunction and

other unspecified equitable relief.
for Relief ¶¶ 1-5.]

[Id. at pgs. 22-23, Prayer

In the instant Motion, Defendant seeks

dismissal with prejudice of the Amended Complaint based
on: Plaintiff’s failure to allege sufficient facts that would
entitle Plaintiff to reimbursement of his travel expenses; and
Plaintiff’s failure to exhaust his administrative remedies before
filing his FTCA claim.
DISCUSSION
I.

Jurisdiction Over Plaintiff’s FTCA Claim
A.

Exhaustion of Administrative Remedies
This district court has stated:
The United States, as
immune from suit unless it
United States v. Mitchell,
(1980); Reed v. U.S. Dep’t

4

a sovereign state, is
specifically consents.
445 U.S. 535, 538
of Interior, 231 F.3d

Plaintiff alleges a PCS would indicate that the work duty
was not temporary. [Amended Complaint at pg. 7.]
5

501, 504 (9th Cir. 2000). Any waiver of sovereign
immunity must be unequivocally expressed. Block
v. North Dakota, 461 U.S. 273, 287 (1983). When a
statute waives sovereign immunity, the Court must
strictly construe the statute in favor of the
United States. Brady v. United States, 211 F.3d
499, 502 (9th Cir. 2000). If there has not been
an express waiver of sovereign immunity, then the
Court lacks subject matter jurisdiction over the
case and it must be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(1). Orff v. United
States, 358 F.3d 1137, 1142 (9th Cir. 2004)[.]
The Federal Tort Claims Act (“FTCA”) provides
for a broad waiver of the United States’ sovereign
immunity. Schoenfeld v. Quamme, 492 F.3d 1016,
1019 (9th Cir. 2007). The FTCA manifests the
United States’ consent to be sued “in the same
manner and to the same extent as a private
individual under like circumstances[.]” 28 U.S.C.
§ 2674. The FTCA waives sovereign immunity for
the negligence of “any employee of the Government
while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1).
. . . .
The FTCA bars claimants from seeking damages
against the United States in court until they have
exhausted their administrative remedies. 28
U.S.C. § 2675(a); McNeil v. United States, 508
U.S. 106, 113 (1993). A plaintiff’s
administrative remedy is exhausted pursuant to the
FTCA if:
(1) the agency has denied the claim in
writing; or,
(2) the agency has failed to issue a final
disposition of the claim six months after it
was filed.
28 U.S.C. § 2675(a); Jerves v. United States, 966
F.2d 517, 519 (9th Cir. 1992).
If no such claim is presented to the
appropriate federal agency within two years after

6

the claim accrues, a tort claim shall be forever
barred. 28 U.S.C. § 2401(b).
The Ninth Circuit Court of Appeals has made
clear that the FTCA exhaustion requirement is
jurisdictional and must be adhered to strictly.
Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250
(9th Cir. 2006).
Hensley v. United States, No. Civ. 14-00472 HG-RLP, 2014 WL
7205492, at *3-5 (D. Hawai`i Dec. 16, 2014) (some alterations in
Hensley) (footnote omitted).
The purpose of the rule is to provide the appropriate
agency with notice of the claim so that it may begin to
investigate the allegations, and respond either by settlement or
defense.

See Broudy v. United States, 722 F.2d 566, 568 (9th

Cir. 1983).

A complaint filed pursuant to the FTCA must allege

facts demonstrating that the plaintiff has exhausted his
administrative remedies.

Hoapili v. Enoki, CIVIL NO. 17-00384

SOM-KJM, 2017 WL 4106074, at *1 (D. Hawai`i Sept. 12, 2017)
(citing Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980)
(“The timely filing of an administrative claim is a
jurisdictional prerequisite to the bringing of a suit under the
FTCA . . . and, as such, should be affirmatively alleged in the
complaint.” (citation omitted)); Moore v. United States, 1988
WL 57696, at *2 (9th Cir. Sept. 28, 1988) (indicating that a
plaintiff with an FTCA claim “must” allege exhaustion)).

As to

the extent of the underlying administrative proceeding, the Ninth
Circuit stated the details of the administrative claim “need not
7

be extensive.”

Goodman v. United States, 298 F.3d 1048, 1055

(9th Cir. 2002).

The claimant “need only file a brief notice or

statement with the relevant federal agency containing a general
description of the time, place, cause and general nature of the
injury and the amount of compensation demanded.”

Id. (citations

omitted).
Because Plaintiff is proceeding pro se, this Court must
liberally construe the allegations of his Amended Complaint.
See, e.g., 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. Ed. 2d 551 (1982) (per curiam))).

However, even

liberally construed, Plaintiff’s Amended Complaint does not
allege facts showing he has exhausted his administrative remedies
as to his FTCA claim.

Although Plaintiff alleges he filed a

claim with the CBCA, the Court is not satisfied that this meets
the exhaustion requirement under the FTCA.5

According to the

CBCA’s ruling in the matter known as In the Matter of Kevin T.

5

This Court has considered the CBCA Decision without
converting the instant Motion into a motion to dismiss, where the
authenticity of the CBCA Decision is not subject to reasonable
dispute and is “capable of accurate and ready determination by
resort to sources whose accuracy cannot be reasonably
questioned.” See Daniels-Hall v. National Educ. Ass’n, 629 F.3d
992, 999 (9th Cir. 2010) (citations omitted) (citing Fed. R.
Evid. 201).
8

Aubart, 5718-TRAV, 2017 WL 4124347 (C.B.C.A. Sept. 11, 2017)
(“CBCA Decision”), the CBCA only reviewed the “Army’s refusal to
provide [Plaintiff with] a voucher to claim mileage expenses for
commuting to and from Schofield Barracks by car.”
4124347, at *1.

2017 WL

Plaintiff alleges his claim was then “denied

because the CBCA deemed the assignment on Schofield Barracks to
be Plaintiff’s ‘Official Station temporarily[,]’” and his request
for panel review was also denied.
¶ 8 (emphasis omitted).]

[Amended Complaint at pg. 3,

This is not sufficient information to

put the United States on notice of Plaintiff’s tort claims, and
does not satisfy Plaintiff’s obligation to exhaust his
administrative remedies.

See, e.g., Dettling v. United States,

983 F. Supp. 2d 1184, 1197 (D. Hawai`i 2013) (ruling that the
district court could not exercise subject matter jurisdiction
over the plaintiff’s FTCA claim where the underlying
administrative claim was too ambiguous to provide sufficient
notice to the government agency).
The Court therefore FINDS that Plaintiff has not
sufficiently pled facts to demonstrate that he has met the
exhaustion requirement under the FTCA, which is a “jurisdictional
prerequisite” to filing an FTCA claim.
at 640.

See Gillespie, 629 F.2d

Plaintiff’s FTCA claim fails to state a plausible claim

for relief because this Court does not have subjection matter
jurisdiction over the claim.

See Ashcroft v. Iqbal, 556 U.S.

9

662, 678 (2009) (“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007))).

Defendant’s Motion is GRANTED insofar as Plaintiff’s

FTCA claim is DISMISSED.
B.

Leave to Amend
With regard to Defendant’s request for dismissal with

prejudice, “[u]nless 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.”

Lucas v. Dep’t of Corr., 66 F.3d 245,

248 (9th Cir. 1995) (per curiam).

Plaintiff argues he submitted

his complaints through his entire chain of command and
unsuccessfully attempted to discuss a resolution with Assistant
United States Attorney (“AUSA”) Edric Ching.
5.6]

[Suppl. Mem. at

Defendant asserts Plaintiff has not filed any claim against

the United States for which the Army has investigative
responsibility.

See Motion, Decl. of Connie M. McConahy

(“McConahy Decl.”), at ¶¶ 1-2.7

6

Plaintiff’s Supplemental Memorandum does not have page
numbers; therefore, all citations to the Supplemental Memorandum
refer to the page numbers in the district court’s electronic
numbering system.
7

Ms. McConahy is the Acting Chief, Operations and Records
(continued...)
10

Still, this does not foreclose the possibility that
Plaintiff filed his claim with another agency, albeit
erroneously.

Under certain circumstances, other district courts

have found that a claim filed with the wrong agency “may
nevertheless be considered constructively filed with the
appropriate agency.”

See Ortiz ex rel. Ortiz v. United States,

No. CIV F 03-6451 AWI SMS, 2007 WL 404899, at *10 (E.D. Cal.
Feb. 2, 2007).

The Ninth Circuit has not addressed this issue;

however, the Seventh and Eighth Circuits have held that a
plaintiff’s erroneous filing with the wrong agency may be excused
if that agency fails to either transfer the claim to the
appropriate agency, or return the claim to the claimant if
transfer is not possible.

See, e.g., Bukala v. United States,

854 F.2d 201 (7th Cir. 1988) (holding that plaintiff’s claim was
constructively filed even though she incorrectly filed her claim
with the Equal Employment Opportunity Commission (“EEOC”) who
failed to forward it to the Veterans’ Administration); Greene v.

7

(...continued)
Branch for the United States Army Claims Service. [McConahy
Decl. at ¶ 1.] The Court only considered the McConahy
Declaration in its analysis of whether the dismissal is with
prejudice or without prejudice; therefore, conversion of the
Motion into a motion for summary judgment is not necessary. See
Gomabon v. United States Postal Serv., CIVIL 17-00417 LEK-RLP,
2018 WL 1613770, at *3 n.3 (D. Hawai`i Mar. 30, 2018) (citations
omitted) (noting that consideration of a declaration to determine
whether dismissal should be with prejudice or without prejudice
does not require conversion of a motion to dismiss to a motion
for summary judgment).
11

United States, 872 F.2d 236 (8th Cir. 1989) (holding that
plaintiff timely filed a personal injury claim against the
Department of Labor because he filed his claim with the General
Services Administration, who failed to forward it to the
appropriate agency).

Thus, even if Defendant is currently

unaware of an administrative claim by Plaintiff against the
United States, this does not foreclose the possibility that
Plaintiff may have filed it elsewhere.

Accordingly, the portion

of Defendant’s Motion seeking dismissal with prejudice is
DENIED.8
Again, this Court CAUTIONS Plaintiff that, if he
chooses to amend his complaint, he must allege sufficient facts
that would permit the Court to draw the reasonable inference that
Plaintiff has exhausted his administrative remedies prior to
filing his FTCA claim with this Court, by filing an
administrative claim that sufficiently put Defendant on notice in
accordance with the factors in Goodman.

If Plaintiff files a

second amended complaint, it must state all of the claims that he
is making and it must contain all of the facts, legal theories,
and exhibits that his claims rely upon.

8

Plaintiff cannot rely

The Court declines to address Defendant’s argument that,
“[i]f Plaintiff is making a claim of misrepresentation, libel or
slander, these claims are barred by the FTCA,” [Mem. in Supp. of
Motion at 14 n.5 (citing 28 U.S.C. § 2680(h)),] because it is not
entirely clear whether Plaintiff’s FTCA claim is based on other
legal theories, in addition to negligence, and an amendment may
serve to clarify the basis of his claim.
12

upon or incorporate by reference any portion of his original
complaint or his Amended Complaint.
II.

Plausibility of Plaintiff’s TDY Travel Claim
This Court previously instructed Plaintiff that, if he

chose to amend his complaint, he must assert sufficient facts to
plausibly allege that Plaintiff’s travel to Schofield Barracks
was travel to a temporary duty location (“TDY”), not a PDS.
8/30/18 Order at 11-12.

Relying upon the guidance in Conforti,

this Court identified certain factors that would ordinarily
constitute either a PDS or a TDY.

Such factors included

“‘[w]hether assignment to a particular station is temporary or
permanent, . . . the duration of the assignment, and the nature
of the duties performed.’”
Conforti).

8/30/18 Order at 10 (quoting

The Court also takes into consideration, that:
The papers processed by an agency are not
conclusive proof of an employee’s official station
of employment. See Tracy Jones, GSBCA 15659-TRAV,
02-1 BCA ¶ 31,687 (2001). A duty station is
determined from the surrounding circumstances of
an employee’s hiring and work situation. Robert
L. Shotwell, CBCA 1887-TRAV, 10-2 BCA ¶ 34,514;
Michael A. Stirber, CBCA 1271-TRAV, 08-2 BCA
134,006. An important factor to be considered is
the parties’ expectations as to where the employee
will spend the greater part of his time. Id.;
John P. DeLeo, GSBCA 14042-TRAV, 97-2 BCA
¶ 29,156. How the agency and the employee treated
the assignment at the time it was made is
especially important. Gerard R. Sladek, GSBCA
14145-TRAV, 98-1 BCA ¶ 29,403 (1997).

In the Matter of Jeffrey E. Koontz, 3251-TRAV, 2013 WL 2283346
(C.B.C.A. May 17, 2013).
13

In the Amended Complaint, Plaintiff alleges his
assignment to Schofield Barracks was temporary because he was
initially informed his relocation would last fourteen weeks while
Fort Shafter was being renovated.
¶ 4.]

[Amended Complaint at pg. 2,

Plaintiff also alleges it was always intended for

Plaintiff to return to Fort Shafter.

He points to an email from

Craig Chang, the “Agency’s Project Manager,” issued on January 9,
2017, informing all RCCP management that all RCCP personnel would
be temporarily relocated to Schofield Barracks during the
renovation, but would return to Fort Shafter “in early May 2017.”
[Id. at pg. 5 (citing Amended Complaint, Exh. C (email from
Mr. Chang dated 1/9/17 regarding relocation)).]

Notwithstanding

the initial fourteen-week projection, Plaintiff alleges his
travel from his residence to Schofield Barracks ultimately lasted
approximately eight months, or from February 26 through
November 14, 2017.

[Id. at pg. 2, ¶ 4.]

After this period,

Plaintiff alleges he did return to Fort Shafter.
pg. 19.]

[Id. at

Plaintiff alleges the nature of his work at Schofield

Barracks was the same as the work he performed at Fort Shafter.
[Id.]

Plaintiff also alleges LTC Siegrist prepared a declaration

stating that he had notified RCCP employees that “their official
duty stations would be changed” and that “their new duty station
would be Schofield Barracks,” but that this declaration was based
on false information.

[Id. at pgs. 14-15.]

14

In ruling upon the instant Motion, this Court must
accept all of the factual allegations of the Amended Complaint as
true, but it does not accept the legal conclusions pled within
the factual allegations.

See Iqbal, 556 U.S. at 678 (2009)

(“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 legal conclusion couched as a
factual allegation.’” (quoting Twombly, 550 U.S. at 555, 127
S. Ct. 1955 (2007))).

So construed, and taking into account the

factors identified in Conforti and Koontz, the Court is satisfied
that Plaintiff’s Amended Complaint states sufficient factual
allegations to support a reasonable inference that Plaintiff’s
travel to Schofield Barracks was travel to a TDY.

Accordingly,

the portion of Defendant’s Motion with regard to Plaintiff’s
claim for reimbursement for travel expenses to a TDY is DENIED.
However, the denial of the Motion is without prejudice to
Defendant’s ability to raise similar arguments in a motion for
summary judgment.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss Plaintiff’s Amended Complaint, filed October 1, 2018, is
HEREBY GRANTED IN PART AND DENIED IN PART.

The Motion is GRANTED

insofar as Plaintiff’s FTCA claim is DISMISSED, and DENIED

15

insofar as the dismissal is WITHOUT PREJUDICE.

The Motion is

also DENIED as to Plaintiff’s TDY Travel claim.
Plaintiff is GRANTED leave to file a second amended
complaint by February 13, 2019.

This Court CAUTIONS Plaintiff

that, if he fails to file his second amended complaint by
February 13, 2019, his FTCA claim will be dismissed with
prejudice, and the case will proceed only as to Plaintiff’s TDY
Travel claim.

This Court also CAUTIONS Plaintiff that, if the

second amended complaint fails to cure the defects in his FTCA
claim that are identified in this Order, the claim may be
dismissed with prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 17, 2019.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

KEVIN T. AUBART VS. HONORABLE MARK T. ESPER, SECRETARY OF THE
ARMY; CIVIL 17-00611 LEK-KJM; ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS

16