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Aubart v. Esper

United States District Court, D. Hawaii

January 17, 2019

KEVIN T. AUBART, Plaintiff,


          Leslie E. Kobayashi Kobayashi United States District Judge

         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”). Defendant's Motion is hereby granted in part and denied in part for the reasons set forth below.


         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.] In the Amended Complaint, Plaintiff again 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 “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].” [Amended Complaint at 7-8.] 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 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”). [Id. at pg. 22, ¶ 11 & pg. 23, Prayer for Relief at ¶ 4.] 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. [Id. at pgs. 22-23, Prayer for Relief ¶¶ 1-5.] 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.


         I. Jurisdiction Over Plaintiff's FTCA Claim

         A. Exhaustion of Administrative Remedies

          This district court has stated:

The United States, as a sovereign state, is immune from suit unless it specifically consents. United States v. Mitchell, 445 U.S. 535, 538 (1980); Reed v. U.S. Dep't of Interior, 231 F.3d 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 ...

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