Agwiak v. United States

64 Fed. Cl. 203, 2005 U.S. Claims LEXIS 49, 2005 WL 419410
CourtUnited States Court of Federal Claims
DecidedFebruary 18, 2005
DocketNo. 98-786 C
StatusPublished
Cited by3 cases

This text of 64 Fed. Cl. 203 (Agwiak v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agwiak v. United States, 64 Fed. Cl. 203, 2005 U.S. Claims LEXIS 49, 2005 WL 419410 (uscfc 2005).

Opinion

OPINION AND ORDER

GEORGE W. MILLER, Judge.

This matter is before the Court on the parties’ cross-motions for summary judgment on liability. Plaintiffs, Henry P. Agwiak, William Bradford, Bruce Christian, Clyde Christman, Patrick Easter, Jay Escott, Carl Fanning, Michael Foster, Richard Hendricks, Darrell Hobson, Steve Hobson, Maurice Ivanoff, Steve Munn, John Nelson, Jim Norris, James Russell, Alf Skaflestad, Darryl Stevens, Gary Wall, and John Williams, filed a Motion for Partial Summary Judgment Regarding Liability on August 12, 2004. On September 21, 2004, defendant, the United States (the “Government”), filed a Cross-Motion for Summary Judgment and Opposition to Plaintiffs Motion for Partial Summary Judgment Regarding Liability. In response, plaintiffs filed an Opposition to Cross-Motion for Summary Judgment and Reply to Opposition to Plaintiffs’ Motion for Partial Summary Judgment Regarding Liability on October 21, 2004; the Government thereafter filed a Reply to Plaintiffs’ Opposition to Cross-Motion for Summary Judgment on November 8, 2004. For the following [205]*205reasons, plaintiffs’ motion is GRANTED in part and DENIED in part, and defendant’s motion is GRANTED in part and DENIED in part.

BACKGROUND

I. Facts

All plaintiffs are former employees of the Office of Environmental Health and Engineering, Alaska Area Native Health Service, United States Public Health Service, Department of Health and Human Services (“Agency”). Agwiak v. United States, 347 F.3d 1375, 1376 (Fed.Cir.2003). Plaintiffs’ jobs involved the construction of water, sewer, and solid waste facilities in Alaska, usually in rural Native Alaskan villages.1 Id.; Agwiak v. United States, No. 98-789C, slip op. at 1 (Fed.Cl. Aug. 30, 2002). As a result of project funding variations, plaintiffs’ positions were converted to seasonal appointments beginning in 1993. Agwiak, 347 F.3d at 1376. Generally, Agency employees’ “terms” under these appointments lasted for a period of four years. Agwiak, slip op. at 2. Even if hired for a four-year term, employees were informed that they could be laid off at any time due to an unpredictable workload. Id. The minimum time employees were expected to work per year was six months with the maximum set at ten months. Id. If an employee wished to continue working for the Agency at the end of his term, he was required to apply for another term appointment. Id.

Throughout each term, plaintiffs typically worked several assignments, which lasted from several weeks to over a year, based in different “duty stations” throughout Alaska. Agwiak, 347 F.3d at 1377. Plaintiffs were provided with airfare when they were transferred from one duty station to another. Agwiak, slip op. at 2. The Agency also paid to ship up to 500 pounds of plaintiffs’ personal effects upon relocation. Id. Each time a plaintiff was assigned to a new duty station, the Agency changed the plaintiff’s official duty station for the duration of his term to reflect his new location. Agwiak, 347 F.3d at 1377.

The Agency’s job hiring announcement for plaintiffs’ positions provided that “[ejxtensive travel to communities throughout Alaska is required, often in small unpressurized aircraft. Normally, long periods of residence in small bush communities will be required.” Agency’s Hiring Announcement, attached to Pis.’ Opp’n to Cross-Mot. for Summ. J. While the Agency did not promise to secure accommodations for the plaintiffs at their assigned . duty stations, it provided them with rudimentary housing at its own expense. Agwiak, 347 F.3d at 1376-77. Plaintiffs and defendant disagree on the nature of these accommodations, which apparently ranged from pump-house floors to rental houses. Pis.’ Findings 117; Def s Resp. H 7.

Most of the duty stations to which plaintiffs were assigned were based in small rural Native Alaskan villages. With the exception of the two duty stations located in Anchorage (Anchorage and Elmendorf Air Force Base), the largest town in which a duty station was located was Bethel, which has a population of over 5,000.2 Def.’s Proposed Finding of Un[206]*206controverted Facts (“Def.’s Findings”) 113; Pis.’ Opp’n to Proposed Findings of Uncontroverted Fact Filed by Def. (“Pis.’ Resp.”) U3. The next three largest duty stations, Dillingham, Kotzebue, and Nome, are home to populations greater than 1,000. Def.’s Findings H 3; Pis.’ Resp. IT 3. The populations of the remaining duty stations are under I, 000, ranging from 11 in Ugashik to 860 in Hoonah, with the average appearing to be about two hundred. 2000 U.S. Census Bureau data, attached to the Decl. of John J. Lehe, attached to Pis.’ Opp’n to Cross-Mot. for Summ. J.

With the exception of Anchorage, Elmendorf Air Force Base, Tetlin, and Northway, all of the duty stations were accessible only by boat or plane. Pis.’ Findings 114; Def.’s Resp. 114. Regularly scheduled air service was not available to several of the duty stations, in which case chartered planes were necessary for travel to and from the site. Pis.’ Findings H 8; Def.’s Resp. H 8. For those duty stations that did have regularly scheduled air service, fares were generally upwards of $100 for one-way travel. Pis.’ Findings 118; Def.’s Resp. U 8. Due to these constraints, plaintiffs did not commute between them duty stations and other communities that did not encompass their duty stations during the duration of their assignment.

In early 1998, a tribal organization, the Alaska Native Tribal Health Consortium (“ANTHC”), opted to take over operation of the Alaska Area Native Health Service. Agwiak, 347 F.3d at 1377. The Agency’s construction projects were turned over to the ANTHC, and plaintiffs still employed by the Agency were subjected to reduction-in-force actions. Id. Plaintiffs who desired continued employment were hired directly by the ANTHC and continued working on construction projects as they had when employed by the Agency. Agwiak, slip op. at 3.

II. Proceedings

On October 13,1998, plaintiffs brought suit in the Court of Federal Claims (“COFC”) for, inter alia, per diem pay under 5 U.S.C. § 5702. Agwiak, 347 F.3d at 1377. Plaintiffs were subsequently granted leave to amend their complaint to include an alternative claim for remote worksite pay pursuant to 5 U.S.C. § 5942(a). Id. The amended complaint was filed with the COFC on March 7, 2000. Id. On April 27, 2000, plaintiffs moved for partial summary judgment regarding their per diem and remote worksite pay claims. Id. The Government opposed the plaintiffs’ motion and filed a cross-motion for summary judgment on June 30, 2000. Id. On August 30, 2002, the COFC granted summary judgment for the Government on the per diem and remote worksite pay claims. Agwiak, No. 98-789C.

The plaintiffs appealed the COFC’s grant of the Government’s motion for summary judgment.

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64 Fed. Cl. 203, 2005 U.S. Claims LEXIS 49, 2005 WL 419410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agwiak-v-united-states-uscfc-2005.