United States District Court, D. Hawaii
KEVIN T. AUBART, Plaintiff,
HONORABLE MARK T. ESPER, SECRETARY OF THE ARMY, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR
E. Kobayashi, United States District Judge.
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”). [Dkt. no. 9.] Pro se plaintiff Kevin T.
Aubart (“Plaintiff”) did not file a memorandum in
opposition to Defendant's Motion. On April 30, 2018,
Defendant filed his reply. [Dkt. no. 20.]
March 18, 2018, Plaintiff filed his Motion for Summary
Motion”). [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 had not filed a concise statement of facts.
[Minutes, filed 5/14/18 (dkt. no. 22).] 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.
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.]
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. The 2/2/17 Memorandum stated, in
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.
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”). [Siegrist Decl., Exh. 1 at 6.] LTC Siegrist
explained: “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.
§ 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
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.
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 ...