Aubart v. Esper

Filing 91

ORDER GRANTING Defendant's Motion For Summary Judgment re 73 .On the basis of the foregoing, Defendant's Motion for Summary Judgment, filed June 18, 2019, is HEREBY GRANTED as to Plaintiff's TDY Claim. There being no other claims r emaining in this case, the Clerk's Office is DIRECTED to enter final judgment in favor of Defendant and close the case immediately. Signed by JUDGE LESLIE E. KOBAYASHI on 8/19/2019. (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.
RYAN MCCARTHY, ACTING SECRETARY
OF THE ARMY;
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On June 18, 2019, Defendant the Honorable Mark T.
Esper, Secretary of the Army (“Defendant”), filed his Motion for
Summary Judgment (“Motion”).

[Dkt. no. 73.]

Pro se Plaintiff

Kevin T. Aubart (“Plaintiff”) filed his memorandum in opposition
on June 29, 2019, and Defendant filed his reply on July 19,
2019.1

[Dkt. nos. 78, 86.]

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”).

Defendant’s Motion

is hereby granted for the reasons set forth below.
BACKGROUND

1

Defendant’s reply was filed by Ryan McCarthy, who is
currently the Acting Secretary of the Army, and has replaced
Mark T. Esper. See reply at 1.

The factual and procedural background is set forth in
this Court’s June 28, 2019 Order Denying Plaintiff’s Motion for
Summary Judgment (“6/28/19 Order”).

[Dkt. no. 77 at 1-5.2]

Only

facts relevant to the Motion will be repeated herein.
Plaintiff’s sole remaining claim in this action is his demand
that Defendant reimburse his travel expenses related to
Plaintiff’s temporary relocation from his alleged permanent duty
station (“PDS”) at Building 520 at Fort Shafter (“Fort
Shafter”), to his temporary duty location (“TDY”) at

1500 at

Schofield Barracks (“Schofield Barracks” and collectively “TDY
Travel claim”).

See Order Granting in Part and Denying in Part

Def.’s Motion to Dismiss, filed 1/17/19 (dkt. no. 52) (“1/17/19
Order”), at 15-16.3]

The TDY Travel claim is based on

Plaintiff’s allegation that, in February 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, ¶¶ 3-5)).]
The parties do not dispute that Plaintiff is a
civilian employee working for the United States Department of

2
3

The 6/28/19 Order is also available at 2019 WL 2717767.
The 1/17/19 Order is also available at 2019 WL 254659.

2

the Army (“Agency”), and he is assigned to the Regional Cyber
Center – Pacific group (“RCCP”) at Fort Shafter, Hawai`i.
[Def.’s concise statement of facts in supp. of Motion (“CSOF”),
filed 6/18/19 (dkt. no. 74), at ¶ 1 (citing Amended Complaint at
¶¶ 1-5); Mem. in opp. at pgs. 10-11 of 14 (Pltf.’s concise
statement of facts (“Opp. CSOF”)) at ¶ 1 (admitting Def.’s
¶ 1).4]

On or about February 10, 2019, the director of the RCCP

notified employees at the RCCP that their official duty station
would be changed from Building 520 at Fort Shafter, to Building
1500 at Schofield Barracks, due to renovations at Fort Shafter.
CSOF at ¶ 2; Opp. CSOF at pg. 10, ¶ 1 (admitting receipt of
written notification, but disputing that the term “official
station” was used);5 see also Amended Complaint at pg. 2, ¶ 4
(“On 2 February 2018, LTC Siegrist, . . . issued a signed
memorandum . . . to RCCP employees, including Plaintiff,
directing the employees to travel to a ‘temporary duty’ (TDY)
location at Building 1500 on Schofield Barracks to perform
duties for about 14 weeks while their office building was being
renovated with an anticipated return to Fort Shafter.”).
4

Plaintiff’s Opposition CSOF is a part of his memorandum in
opposition to the Motion, and is located at pages 10 and 11,
while the memorandum in opposition is located at pages 1-10 and
11-13. This is the first of two paragraphs numbered “1” in
Plaintiff’s Opposition CSOF.
5

This is the second of two paragraphs numbered “1” in
Plaintiff’s Opposition CSOF.
3

LTC Siegrist issued the Memorandum for Record, dated February 2,
2017 (“2/2/17 Memorandum”), which stated in pertinent part:
1.
This memorandum is to inform you of a
temporary change in your duty station from the
Regional Cyber Center Pacific [(RCCP)], Fort
Shafter, Hawaii to BLDG 1500 Schofield Barracks
effective February 18, 2017.
2.
The [RCCP] 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.
[CSOF, Decl. of LTC Christopher Siegrist (“Siegrist Decl.”),
Exh. 1 at 2 of 7 (2/2/17 Memorandum).6]
The parties agree that the distance between Fort
Shafter and Schofield Barracks is 19.1 miles.
Opp. CSOF at pg. 10 (admitting Def.’s ¶ 3).]

[CSOF at ¶ 3;
Despite the

anticipated time frame described in the 2/2/17 Memorandum, RCCP
employees reported to work at Schofield Barracks from
6

Exhibit 1 consists of multiple documents that are not
consecutively paginated; therefore all citations refer to the
page numbers assigned by the district court’s electronic case
filing system. Exhibit 1 also contains five additional pages of
various emails between the dates of January 26, 2017 and
April 26, 2017, which were not identified in the Siegrist
Declaration, nor are they admissible as self-authenticating
documents under Fed. R. Evid. 902. See Orr v. Bank of Am., NT &
SA, 285 F.3d 764, 774 (9th Cir. 2002). For the reasons stated
in the 6/28/19 Order, the Court will not consider pages 3-7 of 7
of Exhibit 1. See 6/28/19 Order at 6 (citing Miller v. Glenn
Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006)).

4

February 18, 2017 through November 14, 2017, and were not
allowed to work in Building 520 at Fort Shafter during the
renovation.

[CSOF at ¶¶ 4, 6; Opp. CSOF at pg. 11 (admitting

Def.’s ¶ 4).7]

During this time, Plaintiff and other RCCP

employees performed the same essential job duties at Schofield
Barracks that they were required to perform at Fort Shafter.
See reply, Decl. of Scott Chilson (“Chilson Decl.”) at ¶¶ 4, 8.8
Since August 7, 2016, Plaintiff held the job title of “SUPV IT
SPECIALIST (CUSTSPT/INFOSEC),” which is otherwise known as the
“ARC (Action Request Center) Supervisor.”
¶ 6.]

[Chilson Decl. at

Plaintiff’s current direct supervisor, RCCP Deputy

Director Scott Chilson,9 see id. at ¶¶ 1, 5, stated that he was

7

Plaintiff’s Opposition CSOF states that “Plaintiff agrees”
to “the time period of February 10, 2017 through November 14,
2017,” see Opp. CSOF at pg. 11, ¶ 4, while the Defendant’s CSOF
states “February 18, 2017 through November 14, 2017.” CSOF at
¶ 4. Plaintiff’s Opposition CSOF appears to have a
typographical error given that Plaintiff does not dispute
Defendant’s material fact in paragraph 4.
8

Plaintiff sought leave of court to file additional
evidence to contest the veracity of the statements in the
Chilson Declaration, however he has not filed any documents by
the deadline provided by this Court. See EO: Court Order
Regarding Pltf.’s Motion for Leave of Court, filed 7/30/19 (dkt.
no. 89) (granting Plaintiff leave to file a surreply by
August 6, 2019).
9

Scott Chilson has held the position of Deputy Director of
the RCCP since January 1, 2019. [Chilson Decl. at ¶ 1.] Prior
to January 2019, he was the Chief of the Defensive Cyberspace
Operations Division at RCCP from April 20, 2013 to December 31,
2018. [Id. at ¶ 2.]
5

“unaware of any changes to [Plaintiff’s] job duties since he
assumed his current position in August 2016, including either
before, during or after the move to Schofield Barracks.”

[Id.

at ¶ 8.]
Defendant submits that Plaintiff’s mileage
reimbursement request was denied because Plaintiff’s commute to
Schofield Barracks was between his home and his official duty
station, which is considered personal business and not subject
to mileage reimbursement.
at ¶ 9).]

[CSOF at ¶ 7 (citing Siegrist Decl.

Plaintiff disputes the basis of Defendant’s denial of

his reimbursement request based on his assertions that the “Army
lied” and that Plaintiff’s official duty station never changed
from Fort Shafter.

[Opp. CSOF at pg. 11, ¶ 7.]

In the instant Motion, Defendant argues he is entitled
to summary judgment for the following reasons: 1) the Agency has
the discretion to classify Plaintiff’s change of workplace as a
new duty station, pursuant to the Joint Travel Regulations
(“JTR”) and relevant administrative agency case law;
2) Plaintiff would not be eligible for mileage reimbursement
under either a Permanent Change of Station (“PCS”) or Temporary
Change of Station (“TCS”); 3) Plaintiff’s travel to Schofield
Barracks does not qualify as work travel; and 4) in the
alternative, even if Plaintiff’s commute to Schofield Barracks
was travel to his TDY, mileage reimbursement is discretionary,
6

therefore, there is no money-mandating statute that would
trigger this Court’s jurisdiction under the Tucker Act, 28
U.S.C. § 1491(a), through the Little Tucker Act, 28 U.S.C.
§ 1346(a)(2).
DISCUSSION
I.

Plaintiff’s Permanent Duty Station
Defendant has consistently argued the 2/2/17

Memorandum should be construed as changing Plaintiff’s permanent
duty station from Fort Shafter to Schofield Barracks, albeit,
temporarily.

See, e.g., 6/28/19 Order at 13 (noting Defendant’s

argument that the 2/2/17 Memorandum “should be construed as
authorizing a change in Plaintiff’s permanent duty station”).
As explained in prior orders in this action:
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.
[In re Conforti, 828-TRAV, 2007 WL 3055016
(C.B.C.A. Oct. 3, 2007)] (internal citation
omitted). . . .

7

[Order Granting in Part and Denying in Part Def.’s Motion to
Dismiss, or in the Alternative, for Summary Judgment, filed
8/30/18 (dkt. no. 33) (“8/30/18 Order”), at 10.10]
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).
1/17/19 Order at 13; see also In the Matter of Audrey Roberts,
CBCA 2230-TRAV, 2011 WL 2602348 (C.B.C.A. June 21, 2011) (noting
the General Accounting Office, which formerly resolved travel
claims of government employees, 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” (citation omitted)).

10

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

There is no dispute that Plaintiff received and
acknowledged receipt of the 2/2/17 Memorandum.
Opp. CSOF at pg. 10, ¶ 1.11

See CSOF, Exh 1;

The parties agree that Plaintiff and

other RCCP employees affected by the 2/2/17 Memorandum reported
to work and completed their assigned duties at Building 1500 at
Schofield Barracks from February 18, 2017 to November 14, 2017.
Plaintiff does not dispute that the RCCP employees, including
Plaintiff, were not required to travel back and forth between
Schofield Barracks and any other work sites, and employees were
not able to work in Building 520 at Fort Shafter while it was
undergoing renovations.

[CSOF at ¶¶ 5-6; Opp. CSOF at pg. 11

(not responding to Def.’s ¶ 5, and admitting Def.’s ¶ 6).]
Although the 2/2/17 Memorandum indicated the renovations would
take fourteen weeks, due to unanticipated delays, the work was
not completed until November 10, 2017.

[Siegrist Decl. at ¶ 4.]

Finally, Plaintiff has not submitted any evidence to raise a
genuine issue of material fact that he did not perform the same
essential duties at Fort Shafter as he did at Schofield

11

Exhibit 1, which is a copy of the 2/2/17 Memorandum, does
not contain Plaintiff’s signature; however, Plaintiff does not
challenge the authenticity of Exhibit 1, and only disputes that
the 2/2/17 Memorandum does not contain the phrase “official
station” anywhere in the document, and “there is nothing to
indicate a PCS.” See Opp. CSOF at pg. 10, ¶ 1. Plaintiff’s
Opposition CSOF further states that “Plaintiff signed the
document,” but with a different understanding of how the 2/2/17
Memorandum altered his duty station. Id. (emphasis added).
9

Barracks.

See Chilson Decl. at ¶¶ 4, 8; see discussion supra,

note 8.
Plaintiff argues that his understanding of the 2/2/17
Memorandum was “that the assignment was a temporary duty which
was consistent with how the assignment was treated by employees
and management before and during the assignment.”

[Opp. CSOF at

pg. 10, ¶ 1 (Plaintiff’s second paragraph “1” in Opp. CSOF).]
Plaintiff contends that, at all relevant times, his permanent
duty station was never changed from Fort Shafter.

He argues

that Defendant fails to recognize the difference between an
“official place of duty” and an “official station,” and that
both a TDY and an “official station” constitute an “official
place of duty” or “duty station.”
(emphasis omitted).]

[Mem. in opp. at 5-6

Because the 2/2/17 Memorandum omitted the

word “official” when directing the RCCP employees that their
duty stations would be changed to Schofield Barracks, he appears
to argue his official or permanent duty station was never
changed.

Finally, Plaintiff submits his declaration stating

that he attended the RCCP relocation planning meetings held by
LTC Siegrist, and at no time was there mention of a permanent
change of station, and “RCCP Managers never discussed, treated
or intended for the Schofield assignment to be anything but a
temporary assignment and that is how we conveyed it to our
employees.”

[Pltf.’s Motion to Admit Exh. PE-OO and PE-PP into
10

the Record, filed 7/14/19 (dkt. no. 84) (“Motion to Admit”),
Exh. PE-PP (“Pltf. Decl.”) at ¶ 3.12]
First, Plaintiff’s declaration does not create a
genuine issue of material fact as to how the 2/2/17 Memorandum
was treated at the time it was issued.

The Ninth Circuit has

stated:
Self-serving affidavits may be cognizable on
motions for summary judgment if they go beyond
conclusions and include facts that would be
admissible in evidence, see United States v.
Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999),
but “a conclusory, self-serving affidavit,
lacking detailed facts and any supporting
evidence, is insufficient to create a genuine
issue of material fact,” FTC v. Publ’g Clearing
House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997);
see also Rodriguez v. Airborne Express, 265 F.3d
890, 902 (9th Cir. 2001) (summary judgment
inappropriate where plaintiff set forth facts
directly relevant to claim with “great
specificity”); McLaughlin [v. Liu], 849 F.2d
[1205,] 1206 [(9th Cir. 1988)] (nonmoving party
survived summary judgment where he relied on
sworn affidavit that included specific factual
averments, sworn answers to interrogatories, and
payroll documentation supporting his factual
allegations).
Burchett v. Bromps, 466 F. App’x 605, 607 (9th Cir. 2012).
Other than stating he attended relocation planning meetings
prior his assignment to Schofield Barracks, Plaintiff neither
identifies any particular individuals with whom he had

12

The Motion to Admit was granted on July 16, 2019. [EO:
Court Order Regarding “Pltf.’s Motion for Summary Judgment,”
Filed on July 14, 2019, dkt. no. 85.]
11

discussions about the relocation, nor does he identify any
supporting evidence that would corroborate his assertion that
“RCCP Managers never discussed, treated or intended” the
assignment to Schofield Barracks to be anything other than
temporary.

[Pltf.’s Decl. at ¶ 3.]

Because Plaintiff’s

declaration lacks “detailed facts and any supporting evidence,”
it cannot create a genuine issue of material fact.
F.3d at 1171.

See FTC, 104

Defendant, on the other hand, has submitted

evidence that LTC Siegrist distributed the 2/2/17 Memorandum to
notify the RCCP employees “that their official duty station
would be changed from Building 520 at Fort Shafter to
Building 1500 on Schofield Barracks.”

[Siegrist Decl. at ¶ 4.]

Indeed, the 2/2/17 Memorandum states that the RCCP employees’
duty station would be changed, and that they were being
“temporarily reassigned” to Schofield Barracks.
Decl., Exh. 1.]

[Siegrist

During this renovation period, Plaintiff was

not expected to return to Fort Shafter for any reason, and could
not do so either given that Building 520 at Fort Shafter was
undergoing renovations.

[Siegrist Decl. at ¶¶ 6, 8.]

Second, aside from his personal interpretation of the
2/2/17 Memorandum, there is no admissible evidence proved that
raises a genuine issue of material fact contesting Defendant’s
evidence, that: the 2/2/17 Memorandum changed his duty station
from Fort Shafter to Schofield Barracks; Schofield Barracks was
12

the only duty station Plaintiff reported to between February 18,
2017 and November 14, 2017; and Plaintiff continued to perform
the same essential job duties.

He neither “cit[es] to

particular parts of materials in the record,” nor “show[s] that
the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
56(c)(1)(A)-(B).

See Fed. R. Civ. P.

Although Plaintiff contends that the 2/2/17

Memorandum was treated as ordering a temporary duty assignment
“by employees and management before and during the assignment,”
there is a lack of any particular materials or evidence to
support his assertion, other than his personal belief.

See Opp.

CSOF at pg. 10, ¶ 1 (Plaintiff’s second paragraph “1” in Opp.
CSOF); Rule 56(c)(1)(A).
Third, it is not dispositive that the papers processed
in connection with Plaintiff’s relocation do not perfectly
document the events that took place.

See Koontz, 2013 WL

2283346 (“The papers processed by an agency are not conclusive
proof of an employee’s official station of employment.”
(citation omitted)).

While the Court agrees that the 2/2/17

Memorandum could have been drafted with greater clarity, the
“surrounding circumstances of [Plaintiff’s] hiring and work
situation,” see id. (citations omitted), and the undisputed
evidence that Plaintiff performed the same duties at Schofield
13

Barracks between February 18, 2017 and November 14, 2017, which
he performed at Fort Shafter, indicate that Plaintiff’s
permanent duty station was Schofield Barracks, while Fort
Shafter was being renovated.

Plaintiff does not dispute that he

was expected to, and did spend, most if not all of his time at
Schofield Barracks to perform his duties, during the relevant
time frame.

See Roberts, 2011 WL 2602348 (“An employee’s PDS is

where an employee spends, and is expected to spend, the most
time.” (citation and quotation marks omitted)).

Even though he

asserts his duties were performed “in a temporary office at
Building 1500, in a temporary space with borrowed furniture and
equipment,” and that RCCP employees “left [their] non-essential
furniture and other property in storage rooms at Fort Shafter,”
it is clearly established by the evidence that all of
Plaintiff’s work during the renovation period was completed at
Schofield Barracks.

See Pltf. Decl. at ¶ 5; Koontz, 2013 WL

2283346 (“An important factor to be considered is the parties’
expectations as to where the employee will spend the greater
part of his time.” (citation omitted)).
This Court has viewed the evidence in the light most
favorable to Plaintiff,13 and concludes that he has agreed with,

13

On a motion for summary judgment, the court must “view[]
the facts in the light most favorable to the nonmoving party.”
Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013).
14

or has not provided contrary evidence to, the majority of
Defendant’s factual assertions.

This undisputed record supports

the conclusion that Plaintiff’s permanent duty station was
changed from Fort Shafter to Schofield Barracks, for the period
of February 18, 2017 through November 14, 2017.

Summary

judgment is therefore granted in favor of Defendant with regard
to his argument that the Agency properly characterized
Plaintiff’s relocation to Schofield Barracks as a change of
Plaintiff’s permanent duty station.
II.

Mileage Reimbursement
“It is well settled that an employee who is engaged in

commuting between his or her residence and official duty station
is performing personal business, not official business, for the
Government, and the employing agency will not pay the
transportation costs that the employee incurs while commuting.”
Conforti, 2007 WL 3055016 (citing Freddie G. Fenton, GSBCA
13638-TRAV, 97-1 BCA If 28,712 (1996)).

Because there is no

genuine issue of material fact that Schofield Barracks was
Plaintiff’s permanent duty station, Plaintiff is not entitled to
reimbursement for the transportation costs incurred while
Plaintiff used his personal vehicle to commute from his personal
residence to Schofield Barracks.

In light of the determination

that the Agency effectively changed Plaintiff’s official duty
station, albeit temporarily, and Plaintiff is not entitled to
15

any recovery on his TDY Claim, Defendant’s alternative arguments
need not be addressed.

Summary judgment is therefore granted in

favor of Defendant as to Plaintiff’s TDY Claim.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Summary Judgment, filed June 18, 2019, is HEREBY GRANTED as to
Plaintiff’s TDY Claim.

There being no other claims remaining in

this case, the Clerk’s Office is DIRECTED to enter final
judgment in favor of Defendant and close the case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, August 19, 2019.

KEVIN T. AUBART VS. RYAN MCCARTHY, ACTING SECRETARY OF THE ARMY;
CIVIL 17-00611 LEK-KJM; ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT

16