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Aubart v. Esper

United States District Court, D. Hawaii

August 30, 2018

KEVIN T. AUBART, Plaintiff,


          Leslie E. Kobayashi, United States District Judge.

         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”). [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.]

         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 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.


         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:

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.


         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”). [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 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.


         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 ...

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