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Aubart v. Esper

United States District Court, D. Hawaii

June 28, 2019

KEVIN T. AUBART, Plaintiff,


          Leslie E. Kobayashi, Judge

         Before the Court is pro se Plaintiff Kevin T. Aubart's (“Plaintiff”) Motion for Summary Judgment (“Motion”), filed on February 18, 2019. [Dkt. no. 57.] Defendant the Honorable Mark T. Esper, Secretary of the Army, in his official capacity (“Defendant”), filed his memorandum in opposition on May 3, 2019, and Plaintiff filed his reply on May 10, 2019. [Dkt. nos. 69, 71.] 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”). Plaintiff's Motion is hereby denied for the reasons set forth below.


         The factual and procedural background is set forth in this Court's January 17, 2019 Order Granting in Part and Denying in Part Defendant's Motion to Dismiss (“1/17/19 Order”), [dkt. no. 52, [1] and only facts relevant to the Motion will be repeated herein. In the 1/17/19 Order, this Court dismissed Plaintiff's claim based on the Federal Tort Claims Act, but permitted Plaintiff to proceed on his claim for reimbursement of travel expenses related to his temporary relocation from his alleged permanent duty station (“PDS”) at Fort Shafter, to a temporary duty location (“TDY”) at Schofield Barracks (“TDY Travel claim”).[2] [1/17/19 Order at 15-16.] The TDY Travel claim is based on Plaintiff's allegation that, on February 2, 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).] Plaintiff alleges he reported to Schofield Barracks from February 26, 2017 through November 14, 2017, and his commute from his residence to Schofield Barracks was greater than his normal commute to Fort Shafter. [Amended Complaint at pg. 2, ¶ 6.] According to the Amended Complaint, in April 2017, Plaintiff requested a partial reimbursement for his travel to Schofield Barracks, which Defendant denied. [Id.]

         Plaintiff then filed a claim with the Civilian Board of Contract Appeals (“CBCA”), seeking review of the denial of his travel reimbursement request (“CBCA Action”). See In the Matter of Kevin T. Aubart, 5718-TRAV, 2017 WL 4124347 (C.B.C.A. Sept. 11, 2017). On or about June 2, 2017, [3] United States Army Attorney Rachel Orejana (“USAA Orejana”) filed the “Agency Response to Board Order Dated May 18, 2017” (“CBCA Agency Response”) in the CBCA Action, which stated Plaintiff and other Regional Cyber Center - Pacific (“RCCP”) employees were notified “that their official duty station would be changed.” [Pltf.'s Concise Statement of Material Facts (“CSOF”), filed 4/8/19 (dkt. no. 66), at ¶ 13 (citing Exh. JJ (CBCA Agency Response) at 1, );[4]Def.'s counter concise statement of facts in supp. of Def.'s mem. in opp. (“Opp. CSOF”), filed 5/3/19 (dkt. no. 70), at ¶ 13 (admitting Pltf.'s ¶ 13).] USAA Orejana indicated that Plaintiff's travel claim was denied because Plaintiff was traveling to his official duty station at Schofield Barracks. [CSOF at ¶ 13 (citing Exh. JJ at 1, ); Opp. CSOF at ¶ 13 (admitting Pltf.'s ¶ 13).] LTC Siegrist submitted his declaration in the CBCA Action, stating that he had notified Plaintiff and other RCCP employees of the change to their official station. [CSOF at ¶ 13 (citing Exh. KK (Decl. of LTC Christopher Siegrist dated 6/2/17 (“LTC Siegrist Decl.”))); Opp. CSOF at ¶ 13 (admitting Pltf.'s ¶ 13).] Specifically, the LTC Siegrist Declaration states that: “On or about February 10, 2017, [LTC Siegrist] notified [RCCP] employees, via written memorandum, that their 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, Oahu, Hawaii.” [LTC Siegrist Decl. at ¶ 3.]

         On November 9, 2019, Plaintiff initiated an appeal with the Merit Systems Protection Board (“MSPB”) alleging the Department of the Army (“Agency”) retaliated against him for his whistleblowing activity (“MSPB Action”). See Aubart, Kevin v. Dep't of the Army, SF-1221-19-0083-W-1, 2019 WL 917293 (M.S.P.B. Feb. 22, 2019). On February 11, 2019, USAA Orejana submitted an “Amended Agency Response” in the MSPB Action, in which she stated that she “never referred to a [permanent change of station (‘PCS')] in the pleadings” before the CBCA. [CSOF at ¶ 14 (citing CSOF, Exh. LL (portions of untitled document signed by USAA Orejana, dated 2/11/19 (“MSPB Agency Response”)));[5] Opp. CSOF at ¶ 14 (admitting Pltf.'s at ¶ 14).]

         In the instant Motion, Plaintiff argues he is entitled to summary judgment - presumably for his TDY Travel claim -based on the documents filed in the CBCA and MSPB Actions by USAA Orejana, and evidence that “[Regional Cyber Center - Pacific (‘RCCP')] government contractors” were reimbursed for their mileage expenses and were subject to the same relocation of facilities as Plaintiff. [Motion at 1, 6.[6] Defendant asserts Plaintiff's arguments lack merit, and that Plaintiff's station at Schofield Barracks is most accurately categorized as his temporary PDS while Fort Shafter was undergoing renovations.


         I. Preliminary Matters

         It is well settled that “[o]nly admissible evidence may be considered in deciding a motion for summary judgment.” Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (citations omitted)). “Authentication is a ‘condition precedent to admissibility,' and this condition is satisfied by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.'” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002) (footnotes omitted) (citing Fed.R.Evid. 901(a)). On the other hand, documents that are self-authenticating under Fed.R.Evid. 901(b) or 902 may be accepted. See Orr, 285 F.3d at 774. Further, “at the summary judgment stage, the court does not focus on the admissibility of the evidence's form, but instead focuses on the admissibility of its content.” Surnow v. Buddemeyer, CIV. NO. 17-00038 JMS-RT, 2019 WL 2111508, at *4 n.4 (D. Hawai`i May 14, 2019) (citing Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)).

         Plaintiff did not attach his declaration or any other declaration to his CSOF to authenticate his exhibits. Plaintiff is pro se however, and the Court must liberally construe his filings. See Eldridge, 832 F.2d at 1137. The Court will address each of Plaintiff's exhibits to provide guidance for future filings.

         A. Exhibits EE, FF, GG, HH, II, OO, and PP

          Plaintiff's Exhibits EE, GG, HH, II, OO, and PP appear to be excerpts from the Joint Travel Regulations issued by the United States Department of Defense (“JTR”).[7] Although not specifically identified, Exhibit FF also appears to be sections within 41 C.F.R. Chapter 301. Because these exhibits refer to federal regulations, it is not necessary for Plaintiff to submit them as exhibits and the Court will consider the rules cited therein.

         B. Exhibits AA, ...

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