Agwiak, Alf v. United StatesAgwiak, Alf v. United States
Elizabeth G. Candler, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were David M. Cohen, Director; and Kathryn A. Bleecker, Assistant Director.
Before MICHEL, DYK and PROST, Circuit Judges.
DYK, Circuit Judge.
Hanson P. Agwiak, Alf Skaflestad, Bruce Christian, Carl Fanning, Clyde Christman, Darrell Hobson, Darryl Stevens, Gary Wall, James Russell, Jay Escott, Jim Norris, John Nelson, John Williams, Maurice Ivanoff, Michael Foster, Pat Easter, Richard Hendricks, Steve Hobson, Steve Munn, and William Bradford (collectively “plaintiffs“) appeal the Court of Federal Claims’ grant of the government‘s motion for summary judgment. Agwiak v. United States, No. 98-786C (Fed.Cl. Aug. 30, 2002). We affirm the Court of Federal Claims’ decision that the plaintiffs were not entitled to per diem compensation, but we vacate and remand with respect to the plaintiffs’ claim for remote duty pay.
The plaintiffs were employed at various times by the Office of Environmental Health and Engineering, Alaska Area Native Health Service, Department of Health and Human Services (“the agency“). The agency hired the plaintiffs to perform construction work in sparsely populated and undeveloped areas of western Alaska that were difficult to access. Beginning in 1993, the plaintiffs’ positions were converted to seasonal appointments. The agency‘s announcement for the positions the plaintiffs held read: “Extensive travel to communities throughout Alaska is required, often in small unpressurized aircraft. Normally long periods of residence in small bush communities will be required.” (App. at 18.) The plaintiffs lived at each successive worksite. Although the agency did not promise to provide housing at the worksites for the plaintiffs, it typically made arrangements for nearby housing, which was often rudimentary. Every time one of the plaintiffs was assigned to a different construction project, the agency made that project his рermanent duty station. Assignments lasted from several weeks to over a year. The plaintiffs received neither per diem nor remote duty pay while they were at their duty stations, but they received per diem pay “if [they] were away from the worksite and away from [their] homes while working.” (App. at 62.)
In early 1998, a tribal organization elected to take over the construction projects for which the plaintiffs were employed. See Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1079-81 (Fed.Cir. 2003) (discussing the Indian Self Determination and Education Assistance Act, Pub.L. No. 93-638, 88 Stat. 2203 (1975) (codified as amended at
On October 13, 1998, the plaintiffs brought suit in the Court of Federal Claims. They sought, inter alia, per diem pay pursuant to
The Court of Federal Claims granted summary judgment for the government, holding that the agency‘s “system of successive transfers upon completion of projects was a permissible personnel practice which does not produce liability for per diem payments.” Agwiak, slip op. at 4. With respect to remote duty pay, the court held that, “[a]s plaintiffs’ duty stations were their remote worksites, commuting, as such, did not occur, and no basis for liability pursuant to
DISCUSSION
Wе review the Court of Federal Claims’ grant of summary judgment without deference. Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed.Cir.2003).
This case presents two issues. The first of these is whether the Court of Federal Claims properly held that the plaintiffs were not entitled to per diem compensation because each of the duty stations to which they were assigned was a permanent duty station. In this respect, we agree with the Court of Federal Claims.
The statute that authorizes per diem payments provides, in relevant part:
Under regulations prescribed pursuant to section 5707 of this title, an employee, when traveling on official business away from the employee‘s designated post of duty ... is entitled to ... a per diem allowance....
In this respect, plaintiffs rely on a decision by the Comptroller General in Comptroller General Warren to the National Housing Administration, 23 Comp. Gen. 162 (1943) (”Warren“). In Warren, the Comptroller General concluded that, because it is necessary “to designate some place as the headquarters or official station of itinerant employees,” the “official station” for itinerant employees ordinarily should be the “central place from which their orders emanate and to which their reports go for consideration and on the basis of which administration action is taken.” Id. at 164. That decision is of course not binding on us, see Cherokee Nation of Okla., 334 F.3d at 1084, and it is distinguishable in any event. In Warren, the itinerant employees were “expected to travel continuously” within a region to which they were assigned or аmong several such regions. Id. at 162. In contrast, the plaintiffs in this case lived at a particular worksite for the duration of their assignment to the site. Although their assignments were often brief, the plaintiffs were not traveling “continuously.” Furthermore, unlike in this case, the agency in Warren sought to designate no official station for the employees, designating them instead as a speсial class of “itinerant employees.” Id. Here, the agency continually updated the plaintiffs’ permanent duty stations as they were reassigned. Thus, the employees always had “some place” as their permanent duty station, unlike the situation in Warren.
We hold that an agency can designate a station as a permanent duty station, even if an employеe is assigned to it for only a short period, so long as the employee is not assigned to another permanent duty station. Under these circumstances, the plaintiffs were not traveling “away from the employee‘s designated post of duty,”
II
This leads then to the plaintiffs’ second contention — that if these locations were the employees’ permanent duty stations, they are entitled to remote duty pay under section 5942, which provides:
[A]n employee of an Executive department or an independent establishment who is assigned to duty, except temporary duty, at a site so remote from the nearest established communities or suitable places of residence as to require an appreciable degree of expense, hardship, and inconvenience, beyond that normally encountered in metropolitan commuting, on the part of the employee in commuting to and from his residence and such worksite, is entitled, in addition to pay otherwise due him, to an allowance of not to exceed $10 a day. The allowance shall bе paid under regulations prescribed by the President establishing the rates at which the allowance will be paid and defining and designating those sites, areas, and groups of positions to which the rates apply.
[A] duty post shall be determined to be a remote duty post for [remote duty pay] eligibility purposes when ... [d]aily commuting is impractical because the location of the duty post and available transportation arе such that agency management requires employees to remain at the duty post for their workweek as a normal and continuing part of the conditions of employment.
III
A
Nonetheless, the government urges that, even though the ground for the Court of Federal Claims’ decision was incorrect, the Court of Federal Claims lacked jurisdiction because the statute and regulations are not money-mandating. Rather, the government argues, the regulations “merely reflect [the Office of Personnel Management‘s] delegation of authority to the agencies.” (Gov‘t Br. at 16.) We disagree. The Tucker Act,
Moreover, the implementing regulations for section 5942(a) contаin similar language. See
B
The government argues alternatively that the plaintiffs here have not shown that the duty stations have in fact been classified as remote. The government is correct that the ultimate burden of proof is on the plaintiffs, but it misconceives the standard of proof on summary judgment. Summary judgment is properly granted if “there is no genuine issue as to any material fact.” CFC Rule 56(c). Whether the plaintiffs’ duty stations were indeed designаted remote by the agency is a material fact, and the government, as the moving party, was required to demonstrate in its motion that no genuine issue existed as to it. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Bubble Room, Inc. v. United States, 159 F.3d 553, 561 (Fed.Cir. 1998). Here, however, the government‘s summary judgment motion was limited to a different issue. It sought summary judgment only on the ground that the statute did not apply to the plaintiffs because they did not commute, and the plaintiffs’ opposition and the decision of the Court of Federal Claims addressed only this issue. The government made no showing that there was no genuine issue of material fact as to whether the agency had designated the plaintiffs’ duty stations as remote. On remand, this issue must be addressed.
C
The plaintiffs also argue that, even if it turns out that the duty stations were not designated as remote by the agency, the Court of Federal Claims should determine whether the sites should have been designated as remote sites under the criteria in section 591.304 of the regulations, which require that the agency and the Office of Personnel Management designate a duty station as remote under certain clearly defined circumstances. Section 591.304(a) prоvides:
[A] duty post shall be determined to be a remote duty post for basic allowance eligibility purposes when ... [d]aily commuting is impractical because the location of the duty post and available transportation are such that agency management requires employees to remain at the duty post for their workweek as a normal and continuing рart of the conditions of employment.
An authorized allowance rate shall be paid to each employee with a permanent duty station at or within a remote post of duty approved under § 591.304, regardless of type of appointment or work schedule, only ... [when] the employee remains at the worksite at the directiоn of management because daily commuting is impractical.
The factual inquiry is spelled out by the regulations. A duty post is a remote duty post if “agency management requires employees to remain at the duty post for their workweek as a normal and continuing part of the conditions of еmployment.”
On the merits, although the plaintiffs allege that there is no dispute that they remained at the worksites at the direction of the agency, rather than for their own convenience, the government disagrees. We believe that the matter should be addressed in the first instance by the Court of Federal Claims.
CONCLUSION
For the foregoing reasons, we affirm the Court of Federal Claims’ decision as to per diem compensation, and we vacate the decision with regard tо the issue of remote duty pay and remand this case to the Court of Federal Claims for further proceedings. On remand, the court must determine (1) whether the worksites were designated as remote duty stations; (2) if not, whether they should have been so designated pursuant to
AFFIRMED-IN-PART, VACATED-IN-PART, and REMANDED.
COSTS
No costs.