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Aubart v. McCarthy

United States District Court, D. Hawaii

August 19, 2019

KEVIN T. AUBART, Plaintiff,
v.
RYAN MCCARTHY, ACTING SECRETARY OF THE ARMY; Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Leslie E. Kobayashi United States District Judge.

         On June 18, 2019, Defendant the Honorable Mark T. Esper, Secretary of the Army (“Defendant”), filed his Motion for Summary Judgment (“Motion”). [Dkt. no. 73.] Pro se Plaintiff Kevin T. Aubart (“Plaintiff”) filed his memorandum in opposition on June 29, 2019, and Defendant filed his reply on July 19, 2019.[1] [Dkt. nos. 78, 86.] 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”). Defendant's Motion is hereby granted for the reasons set forth below.

         BACKGROUND

         The factual and procedural background is set forth in this Court's June 28, 2019 Order Denying Plaintiff's Motion for Summary Judgment (“6/28/19 Order”). [Dkt. no. 77 at 1-5.[2] Only facts relevant to the Motion will be repeated herein. Plaintiff's sole remaining claim in this action is his demand that Defendant reimburse his travel expenses related to Plaintiff's temporary relocation from his alleged permanent duty station (“PDS”) at Building 520 at Fort Shafter (“Fort Shafter”), to his temporary duty location (“TDY”) at 1500 at Schofield Barracks (“Schofield Barracks” and collectively “TDY Travel claim”). See Order Granting in Part and Denying in Part Def.'s Motion to Dismiss, filed 1/17/19 (dkt. no. 52) (“1/17/19 Order”), at 15-16.[3] The TDY Travel claim is based on Plaintiff's allegation that, in February 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)).]

         The parties do not dispute that Plaintiff is a civilian employee working for the United States Department of the Army (“Agency”), and he is assigned to the Regional Cyber Center - Pacific group (“RCCP”) at Fort Shafter, Hawai`i. [Def.'s concise statement of facts in supp. of Motion (“CSOF”), filed 6/18/19 (dkt. no. 74), at ¶ 1 (citing Amended Complaint at ¶¶ 1-5); Mem. in opp. at pgs. 10-11 of 14 (Pltf.'s concise statement of facts (“Opp. CSOF”)) at ¶ 1 (admitting Def.'s ¶ 1).[4] On or about February 10, 2019, the director of the RCCP notified employees at the RCCP that their official duty station would be changed from Building 520 at Fort Shafter, to Building 1500 at Schofield Barracks, due to renovations at Fort Shafter. CSOF at ¶ 2; Opp. CSOF at pg. 10, ¶ 1 (admitting receipt of written notification, but disputing that the term “official station” was used);[5] see also Amended Complaint at pg. 2, ¶ 4 (“On 2 February 2018, LTC Siegrist, . . . issued a signed memorandum . . . to RCCP employees, including Plaintiff, directing the employees to travel to a ‘temporary duty' (TDY) location at Building 1500 on Schofield Barracks to perform duties for about 14 weeks while their office building was being renovated with an anticipated return to Fort Shafter.”).

         LTC Siegrist issued the Memorandum for Record, dated February 2, 2017 (“2/2/17 Memorandum”), which stated in pertinent part:

1. This memorandum is to inform you of a temporary change in your duty station from the Regional Cyber Center Pacific [(RCCP)], Fort Shafter, Hawaii to BLDG 1500 Schofield Barracks effective February 18, 2017.
2. The [RCCP] 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.

         [CSOF, Decl. of LTC Christopher Siegrist (“Siegrist Decl.”), Exh. 1 at 2 of 7 (2/2/17 Memorandum).[6]

         The parties agree that the distance between Fort Shafter and Schofield Barracks is 19.1 miles. [CSOF at ¶ 3; Opp. CSOF at pg. 10 (admitting Def.'s ¶ 3).] Despite the anticipated time frame described in the 2/2/17 Memorandum, RCCP employees reported to work at Schofield Barracks from February 18, 2017 through November 14, 2017, and were not allowed to work in Building 520 at Fort Shafter during the renovation. [CSOF at ¶¶ 4, 6; Opp. CSOF at pg. 11 (admitting Def.'s ¶ 4).[7] During this time, Plaintiff and other RCCP employees performed the same essential job duties at Schofield Barracks that they were required to perform at Fort Shafter. See reply, Decl. of Scott Chilson (“Chilson Decl.”) at ¶¶ 4, 8.[8]Since August 7, 2016, Plaintiff held the job title of “SUPV IT SPECIALIST (CUSTSPT/INFOSEC), ” which is otherwise known as the “ARC (Action Request Center) Supervisor.” [Chilson Decl. at ¶ 6.] Plaintiff's current direct supervisor, RCCP Deputy Director Scott Chilson, [9] see id. at ¶¶ 1, 5, stated that he was “unaware of any changes to [Plaintiff's] job duties since he assumed his current position in August 2016, including either before, during or after the move to Schofield Barracks.” [Id. at ¶ 8.]

         Defendant submits that Plaintiff's mileage reimbursement request was denied because Plaintiff's commute to Schofield Barracks was between his home and his official duty station, which is considered personal business and not subject to mileage reimbursement. [CSOF at ¶ 7 (citing Siegrist Decl. at ¶ 9).] Plaintiff disputes the basis of Defendant's denial of his reimbursement request based on his assertions that the “Army lied” and that Plaintiff's official duty station never changed from Fort Shafter. [Opp. CSOF at pg. 11, ¶ 7.]

         In the instant Motion, Defendant argues he is entitled to summary judgment for the following reasons: 1) the Agency has the discretion to classify Plaintiff's change of workplace as a new duty station, pursuant to the Joint Travel Regulations (“JTR”) and relevant administrative agency case law; 2) Plaintiff would not be eligible for mileage reimbursement under either a Permanent Change of Station (“PCS”) or Temporary Change of Station (“TCS”); 3) Plaintiff's travel to Schofield Barracks does not qualify as work travel; and 4) in the alternative, even if Plaintiff's commute to Schofield Barracks was travel to his TDY, mileage reimbursement is discretionary, therefore, there is no money-mandating statute that would trigger this Court's jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a), through the Little Tucker Act, 28 U.S.C. § 1346(a)(2).

         DISCUSSION

         I. Plaintiff's Permanent Duty Station

         Defendant has consistently argued the 2/2/17 Memorandum should be construed as changing Plaintiff's permanent duty station from Fort Shafter to Schofield Barracks, albeit, temporarily. See, e.g., 6/28/19 Order at 13 (noting Defendant's argument that the 2/2/17 Memorandum “should be construed as authorizing a change ...


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