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
E. Kobayashi Kobayashi United States District Judge
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.
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.
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. 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.]
filed his Amended Complaint on September 16, 2018. [Dkt. no.
36.] In the Amended Complaint, Plaintiff again alleges that,
on February 2, 2017,  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.]
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.]
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. [Id. at pg. 21, ¶¶
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.
Jurisdiction Over Plaintiff's FTCA
Exhaustion of Administrative Remedies
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 ...