Aubart v. Esper
Filing
77
ORDER Denying Plaintiff's Motion For Summary Judgment re 57 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/28/2019. (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)
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
KEVIN T. AUBART,
CIV. NO. 17-00611 LEK-KJM
Plaintiff,
vs.
HONORABLE MARK T. ESPER,
SECRETARY OF THE ARMY,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Before the Court is pro se Plaintiff Kevin T. Aubart’s
(“Plaintiff”) Motion for Summary Judgment (“Motion”), filed on
February 18, 2019.
[Dkt. no. 57.]
Defendant the Honorable Mark
T. Esper, Secretary of the Army, in his official capacity
(“Defendant”), filed his memorandum in opposition on May 3,
2019, and Plaintiff filed his reply on May 10, 2019.
nos. 69, 71.]
[Dkt.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”).
Plaintiff’s Motion is
hereby denied for the reasons set forth below.
BACKGROUND
The factual and procedural background is set forth in
this Court’s January 17, 2019 Order Granting in Part and Denying
in Part Defendant’s Motion to Dismiss (“1/17/19 Order”), [dkt.
no. 52,1] and only facts relevant to the Motion will be repeated
herein.
In the 1/17/19 Order, this Court dismissed Plaintiff’s
claim based on the Federal Tort Claims Act, but permitted
Plaintiff to proceed on his claim for reimbursement of travel
expenses related to his temporary relocation from his alleged
permanent duty station (“PDS”) at Fort Shafter, to a temporary
duty location (“TDY”) at Schofield Barracks (“TDY Travel
claim”).2
[1/17/19 Order at 15-16.]
The TDY Travel claim is
based on Plaintiff’s allegation that, on February 2, 2017, he
was instructed by Lieutenant Colonel Christopher Siegrist (“LTC
Siegrist”) to report to Schofield Barracks to perform his
official duties, while his “fixed, permanent work location” at
Fort Shafter was undergoing renovations.
[Id. at 3 (citing
Amended Complaint, filed 9/16/18 (dkt. no. 36), at pg. 2, ¶¶ 35).]
Plaintiff alleges he reported to Schofield Barracks from
February 26, 2017 through November 14, 2017, and his commute
from his residence to Schofield Barracks was greater than his
normal commute to Fort Shafter.
¶ 6.]
[Amended Complaint at pg. 2,
According to the Amended Complaint, in April 2017,
1
The 1/17/19 Order is also available at 2019 WL 254659.
2
Plaintiff alleges the specific location of his new duty
station was Building 1500 at Schofield Barracks. [Amended
Complaint at pg. 3, ¶ 7.]
2
Plaintiff requested a partial reimbursement for his travel to
Schofield Barracks, which Defendant denied.
[Id.]
Plaintiff then filed a claim with the Civilian Board
of Contract Appeals (“CBCA”), seeking review of the denial of
his travel reimbursement request (“CBCA Action”).
See In the
Matter of Kevin T. Aubart, 5718-TRAV, 2017 WL 4124347 (C.B.C.A.
Sept. 11, 2017).
On or about June 2, 2017,3 United States Army
Attorney Rachel Orejana (“USAA Orejana”) filed the “Agency
Response to Board Order Dated May 18, 2017” (“CBCA Agency
Response”) in the CBCA Action, which stated Plaintiff and other
Regional Cyber Center – Pacific (“RCCP”) employees were notified
“that their official duty station would be changed.”
[Pltf.’s
Concise Statement of Material Facts (“CSOF”), filed 4/8/19 (dkt.
no. 66), at ¶ 13 (citing Exh. JJ (CBCA Agency Response) at 1,);4
Def.’s counter concise statement of facts in supp. of Def.’s
mem. in opp. (“Opp. CSOF”), filed 5/3/19 (dkt. no. 70), at ¶ 13
(admitting Pltf.’s ¶ 13).]
USAA Orejana indicated that
Plaintiff’s travel claim was denied because Plaintiff was
3
Plaintiff’s Exhibit JJ states that it is “DATED: June 2,
1017,” which appears to be a typographical error. [CSOF,
Exh. JJ at 4.] Plaintiff’s Exhibit JJ also does not contain
page numbers, therefore all citations refer to the page numbers
assigned in the district court’s electronic case filing system.
4
According to the CBCA Agency Response, USAA Orejana
represented Robert M. Speer, Acting Secretary of the Army,
Department of the Army in the CBCA Action. [CSOF, Exh. JJ
at 1.]
3
traveling to his official duty station at Schofield Barracks.
[CSOF at ¶ 13 (citing Exh. JJ at 1,); Opp. CSOF at ¶ 13
(admitting Pltf.’s ¶ 13).]
LTC Siegrist submitted his
declaration in the CBCA Action, stating that he had notified
Plaintiff and other RCCP employees of the change to their
official station.
[CSOF at ¶ 13 (citing Exh. KK (Decl. of LTC
Christopher Siegrist dated 6/2/17 (“LTC Siegrist Decl.”))); Opp.
CSOF at ¶ 13 (admitting Pltf.’s ¶ 13).]
Specifically, the LTC
Siegrist Declaration states that: “On or about February 10,
2017, [LTC Siegrist] notified [RCCP] employees, via written
memorandum, that their 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, Oahu, Hawaii.”
[LTC Siegrist Decl. at ¶ 3.]
On November 9, 2019, Plaintiff initiated an appeal
with the Merit Systems Protection Board (“MSPB”) alleging the
Department of the Army (“Agency”) retaliated against him for his
whistleblowing activity (“MSPB Action”).
See Aubart, Kevin v.
Dep’t of the Army, SF-1221-19-0083-W-1, 2019 WL 917293 (M.S.P.B.
Feb. 22, 2019).
On February 11, 2019, USAA Orejana submitted an
“Amended Agency Response” in the MSPB Action, in which she
stated that she “never referred to a [permanent change of
station (‘PCS’)] in the pleadings” before the CBCA.
[CSOF at
¶ 14 (citing CSOF, Exh. LL (portions of untitled document signed
4
by USAA Orejana, dated 2/11/19 (“MSPB Agency Response”)));5 Opp.
CSOF at ¶ 14 (admitting Pltf.’s at ¶ 14).]
In the instant Motion, Plaintiff argues he is entitled
to summary judgment - presumably for his TDY Travel claim based on the documents filed in the CBCA and MSPB Actions by
USAA Orejana, and evidence that “[Regional Cyber Center –
Pacific (‘RCCP’)] government contractors” were reimbursed for
their mileage expenses and were subject to the same relocation
of facilities as Plaintiff.
[Motion at 1, 6.6]
Defendant
asserts Plaintiff’s arguments lack merit, and that Plaintiff’s
station at Schofield Barracks is most accurately categorized as
his temporary PDS while Fort Shafter was undergoing renovations.
5
Plaintiff’s Exhibit PEAA, which is attached to his Motion
and not the CSOF, appears to be a complete copy of Exhibit LL.
6
Plaintiff’s Motion is unaccompanied by a memorandum in
support of the Motion. See Local Rule LR56.1(a) (“A motion for
summary judgment shall be accompanied by a supporting
memorandum”). However, because of the liberal standard applied
to pro se filings, this Court will construe Plaintiff’s Motion
as both his motion and supporting memorandum. 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. Ed. 2d
551 (1982) (per curiam))). The Motion also does not contain
page numbers, therefore all citations refer to the page numbers
assigned in the district court’s electronic case filing system.
5
DISCUSSION
I.
Preliminary Matters
It is well settled that “[o]nly admissible evidence
may be considered in deciding a motion for summary judgment.”
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th
Cir. 2006) (citations omitted)).
“Authentication is a
‘condition precedent to admissibility,’ and this condition is
satisfied by ‘evidence sufficient to support a finding that the
matter in question is what its proponent claims.’”
Orr v. Bank
of Am., NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002) (footnotes
omitted) (citing Fed. R. Evid. 901(a)).
On the other hand,
documents that are self-authenticating under Fed. R.
Evid. 901(b) or 902 may be accepted.
See Orr, 285 F.3d at 774.
Further, “at the summary judgment stage, the court does not
focus on the admissibility of the evidence’s form, but instead
focuses on the admissibility of its content.”
Surnow v.
Buddemeyer, CIV. NO. 17-00038 JMS-RT, 2019 WL 2111508, at *4 n.4
(D. Hawai`i May 14, 2019) (citing Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003)).
Plaintiff did not attach his declaration or any other
declaration to his CSOF to authenticate his exhibits.
Plaintiff
is pro se however, and the Court must liberally construe his
filings.
See Eldridge, 832 F.2d at 1137.
6
The Court will
address each of Plaintiff’s exhibits to provide guidance for
future filings.
A.
Exhibits EE, FF, GG, HH, II, OO, and PP
Plaintiff’s Exhibits EE, GG, HH, II, OO, and PP appear
to be excerpts from the Joint Travel Regulations issued by the
United States Department of Defense (“JTR”).7
Although not
specifically identified, Exhibit FF also appears to be sections
within 41 C.F.R. Chapter 301.
Because these exhibits refer to
federal regulations, it is not necessary for Plaintiff to submit
them as exhibits and the Court will consider the rules cited
therein.
B.
Exhibits AA, CC, JJ, KK, and LL
Defendant admits the material facts stated in
Plaintiff’s paragraphs 1, 3, 13, and 14 of the CSOF, and does
not dispute the admissibility of Plaintiff’s Exhibits AA, CC,
JJ, KK, and LL submitted in support of those paragraphs.
Opp. CSOF at ¶¶ 1, 3, 13, 14.
See
Exhibits AA and CC appear to be
portions from the JTR and do not need authentication as stated
in Section I.A.
Exhibits JJ and KK are documents filed in the
CBCA Action, and this Court may take judicial notice of the fact
7
Exhibit EE appears to be an excerpt from Appendix I of the
JTR (July 1, 2017); while Exhibits GG and HH appear to be
excerpts from Appendix A, Exhibit OO appears to be an excerpt
from Chapter 1, and Exhibits II and PP appear to be excerpts
from Chapter 2 of the JTR (Sept. 1, 2017).
7
that those documents were filed.
Fed. R. Evid. 201(b)(2)
(permitting courts to judicially notice a fact “that is not
subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned”).
However, the Court cannot take
judicial notice of the disputed issues therein.
See Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018)
(“a court cannot take judicial notice of disputed facts
contained in such public records” (citation omitted)).
Exhibit LL contains only pages seven, twelve, and thirteen of a
fifty-eight-page document, and does not have a case number,
caption, document title, or any other information identifying
that it is what Plaintiff suggests it is.
id., Exh. LL.
See CSOF at ¶ 14;
Exhibit LL appears to be select pages of modified
text from the MSPB Agency Response, which is Plaintiff’s
Exhibit PEAA attached to the Motion.8
After this Court
instructed Plaintiff on March 4, 2019 to file a concise
statement of facts in support of his Motion, see dkt. no. 64,
Plaintiff should have submitted Exhibit PEAA with his CSOF.
See
Local Rule LR56.1(h) (“Affidavits or declarations setting forth
8
For example, text in Exhibit LL appears as: “In fact, the
undersigned never referred to a PCS in the pleadings”; [CSOF,
Exh. LL at pg. 7 of 58 (emphasis in original);] while in
Exhibit PEAA, only the word “never” is both in bold and
italicized font. See Motion, Exh. PEAA at pg. 7 of 58.
8
facts and/or authenticating exhibits, as well as exhibits
themselves, shall only be attached to the concise statement.”
(emphasis added)).
Because Plaintiff is pro se and this Court
must liberally construe his filings, and because Defendant did
not object to Exhibits LL or PEAA, the Court will take judicial
notice that Exhibits LL and PEAA were filed in the MSPB Action,
see Fed. R. Evid. 201(b)(2), but cannot take judicial notice of
any disputed facts therein.
C.
Exhibits BB and DD
Plaintiff’s Exhibit BB is a document titled
“Request/Authorization for DOD Civilian Permanent Duty,” but it
is not clear who prepared the document, or whether it can be
submitted under any other exception under Rules 901(b) or 902.
If he intended to authenticate the document based on his own
personal knowledge under Rule 901(b)(1), Plaintiff should have
stated whether he “wrote it, signed it, used it, or saw others
do so.”
See Orr, 285 F.3d at 774 n.8 (citation and quotation
marks omitted).
Nevertheless, the Court will consider the
document because Plaintiff is pro se, and because Defendant did
not specifically object to Exhibit BB.
As for Exhibit DD,
Plaintiff’s CSOF states “[t]he RCCP Director LTC Siegrist . . .
issued Plaintiff a memo dated 02/02/17 directing Plaintiff to
perform a Temporary Duty at Schofield which Plaintiff signed.”
[CSOF at ¶ 5.]
Exhibit DD is titled “MEMORANDUM FOR Record,”
9
dated February 2, 2017 (“2/2/17 Memorandum”), discusses the
“Temporary Duty Relocation” from the “Regional Cyber Center
Pacific (RCC-P), Fort Shafter, Hawaii to BLDG 1500 Schofield
Barracks effective February 18, 2017,” and contains the digital
signature of Plaintiff, dated February 10, 2017.
Exh. DD.]
[CSOF,
The Court is satisfied that Plaintiff is the proper
party to authenticate Exhibit DD, and will consider the exhibit.
Again, Plaintiff should have complied with Local
Rule 56.1, by attaching his declaration and exhibits to his
CSOF; and Fed. R. Civ. P. 56(c)(4), by filing a declaration or
affidavit setting forth the necessary information to render
those exhibits admissible.
Plaintiff is cautioned that, going
forward, he must apply the Court’s guidance to comply with the
applicable rules and that his failure to do so may result in
sanctions, including, but not limited to, the striking of the
non-compliant documents.
The Court now turns to the merits of
Plaintiff’s Motion.
II.
Plaintiff’s TDY Travel Claim
The gravamen of the Motion is that new statements by
USAA Orejana in the CBCA and MSPB Actions confirmed that
Plaintiff was never issued a PCS to Schofield Barracks, and
Defendant never intended Schofield Barracks to become
Plaintiff’s permanent duty station.
10
Plaintiff argues his
relocation must therefore be a TDY.9
In support of his position,
Plaintiff argues USAA Orejana’s statements “never referred to a
PCS,” and “[t]here was absolutely no mention of any ‘permanent
change of station’ or ‘PCS’ by LTC Siegrist or [USAA Orejana].”
[CSOF at ¶ 14; Exhibit LL at 7 of 58, 12 of 58.]
He also argues
the 2/2/17 Memorandum reinforces USAA Orejana’s statements.
[CSFO, Exh. DD.]
In considering Plaintiff’s Motion, this Court must
view the evidence in the light most favorable to Defendant.
See
Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013)
(citation omitted).
Although Defendant admits there is no
genuine issue of material fact that USAA Orejana’s and
LTC Siegrist’s statements were made and filed in the CBCA or
MSPB Actions, even if admissible, it is not entirely clear how
these statements would meet Plaintiff’s burden on summary
judgment to establish that his assignment to Schofield Barracks
was a TDY.
Under the JTR, the following criteria must be met
before the Authorizing/Order Issuing Official (“AO”) determines
that an assignment is a TDY, and not a temporary change of
9
Plaintiff’s argument that other government contractors’
receipt of payment for “TDY travel” for the same assignment to
Schofield Barracks as Plaintiff is evidence that Plaintiff’s
move was also a TDY, is disregarded because it is not supported
by any evidence in the record. See Motion at 6; Fed. R. Civ.
P. 56(c)(1).
11
station (“TCS”) or permanent change of station (“PCS”) move:10
“(1) The duties to be performed are temporary in nature, (2) The
assignment is for a reasonable time duration, and (3) TDY costs
are lower than round trip TCS or PCS expenses.”
Pt. C at ¶ 2230.11
JTR, Ch. 2,
Further, “[t]he ‘temporary’ designation of an
employee’s duty station on an order is not necessarily
controlling,” and “[l]ong-term TDY should not exceed 180
consecutive days” except when authorized.
Id.
The 2/2/17 Memorandum states Plaintiff’s temporary
relocation from Fort Shafter to Schofield Barracks would last
approximately fourteen weeks, even though it began on
February 26, 2017 and ended on November 14, 2017.
If the Court
were to solely consider the time frame in the 2/2/17 Memorandum,
an argument could be made that fourteen weeks is “a reasonable
time duration.”
See JTR at ¶ 2230(A)(2)(a)(2).
Even so,
Plaintiff has submitted no evidence that the duties he performed
10
The AO is the “official who directs travel and has
responsibility for the funding.” JTR, App. A (“JTR Appendix
A”). A TCS is the “relocation of an employee to a new PDS for a
temporary period to perform a long-term temporary assignment,
and subsequent return of the employee to the previous PDS after
assignment completion.” Id. In general, a PCS is the
“assignment, detail, or transfer of an employee, member, or unit
to a different PDS under a competent travel order that does not
specify the duty as temporary, provide for further assignment to
a new PDS, or direct return to the old PDS.” [Id.] The JTR
Appendix A is also available at 2016 WL 3194324.
11
Paragraph 2230 of the JTR is also available at 2012 WL
1382709.
12
at Schofield Barracks were “temporary in nature,” nor has he
submitted any information relating to the actual costs of his
alleged TDY, and if it is lower than “round trip TCS or PCS
expenses.”
See id. at ¶ 2230(A)(2)(a)(3).
As a threshold
matter, Plaintiff’s Motion fails to establish that Schofield
Barracks was a TDY, and therefore Plaintiff cannot show there
are no genuine issues of material fact that he is entitled to
reimbursement at this time.
See Fed. R. Civ. P. 56(a) (“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.”).
Plaintiff also appears to argue that, if Schofield
Barracks was Plaintiff’s PDS, albeit temporarily, the JTR
requires a PCS order to be issued.
He asserts no PCS order was
issued, while Defendant argues the 2/2/17 Memorandum should be
construed as authorizing a change in Plaintiff’s permanent duty
station since Plaintiff was told he would be performing the same
job functions, and his move exceeded the 180-day period
permitted under a TDY.
The parties apparently dispute the
effect the 2/2/17 Memorandum had on Plaintiff’s relocation to
Schofield Barracks.
The CBCA instructs that circumstances, not
written orders, determine whether an employee’s duty station is
temporary or permanent:
13
“An employee’s PDS is where an employee spends,
and is expected to spend, the most time.” JTR
C4430 A 3. Further, in John P. DeLeo, GSBCA
14042-TRAV, 97-2 BCA ¶29, 156, our predecessor
board in deciding these matters, the General
Services Board of Contract Appeals, stated:
The General Accounting Office (GAO), which
formerly resolved the travel claims of
government employees, decided that whether a
duty station is temporary or permanent is a
question of fact and is determined by where
an employee expects and is expected to spend
the greater part of his time. . . . GAO was
less interested in the paper trail created
by the agency and the employee, and more
interested in the facts establishing where
the employee was expected to spend the
greater part of his time performing his
duties. The Department of Defense uses
GAO’s rationale in order to determine
whether a post of duty is temporary. JTR
4455-A. GAO’s approach has merit, and we
will use it in this case.
Id. at 144,999 (citations omitted).
In the Matter of Audrey Roberts, CBCA 2230-TRAV, 2011 WL 2602348
(C.B.C.A. June 21, 2011) (emphasis added).
There are genuine
issues of material fact as to: where Plaintiff was expected to
spend a majority of his time; what specific duties Plaintiff
performed at Schofield Barracks; and whether Plaintiff’s duties
at Schofield Barracks differed from his duties at Fort Shafter.12
Further, as Defendant concedes, Plaintiff’s relocation to
12
The parties disagree whether Plaintiff performed the same
duties at Schofield Barracks as he did at Fort Shafter, but no
party has submitted any admissible evidence explaining what
Plaintiff’s duties were at each location, or how it did or did
not differ.
14
Schofield Barracks “does not fall neatly under the PCS or TCS
tests set forth under the JTR.”
[Mem. in Opp. at 13.]
Accordingly, Plaintiff has not met his burden in
establishing there are no genuine issues of material fact that
his relocation to Schofield Barracks was a TDY.
Plaintiff’s
Motion is therefore denied as to his TDY Travel claim.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Summary Judgment, filed February 18, 2019, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, June 28, 2019.
KEVIN T. AUBART VS. MARK T. ESPER, SECRETARY OF THE ARMY; CV 1700611 LEK-KJM; ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
15
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