Agwiak v. U.S.

• Citation: 347 F.3d 1375
• Decision Date: 30 October 2003
• Docket Number: No. 02-5184.,02-5184.
• Parties: 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, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

347 F.3d 1375

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, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 02-5184.

United States Court of Appeals, Federal Circuit.

Decided October 30, 2003.

David H. Shoup, Tindall Bennett & Shoup, of Anchorage, Alaska, argued for plaintiffs-appellants.

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.

BACKGROUND

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 permanent 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 25 U.S.C. §§ 450-450n (2000))). The plaintiffs, most then still employed by the agency,¹ were subjected to reduction-in-force actions.

On October 13, 1998, the plaintiffs brought suit in the Court of Federal Claims. They sought, inter alia, per diem pay pursuant to 5 U.S.C. § 5702 for the period of their employment. On March 7, 2000, the plaintiffs, with leave of the Court of Federal Claims, amended their complaint to include an alternative claim for remote worksite pay pursuant to 5 U.S.C. § 5942(a). On April 27, 2000, the plaintiffs moved for partial summary judgment with respect to their alternative per diem and remote worksite pay claims. On June 30, 2000, the government opposed the plaintiffs' motion and cross-moved for summary judgment. The government argued that, because each worksite to which one of the plaintiffs had been assigned was designated by the agency as that plaintiff's permanent duty station, the plaintiffs were not entitled to per diem pay. With respect to remote duty pay, the government argued that 5 U.S.C. § 5942 applies "only to instances where an employee's daily commute to and from his work-site results in hardship." (Gov't Opp'n at 19.)

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 5 U.S.C. § 5942 has been established." Id. The plaintiffs timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

We 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).

I

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....

5 U.S.C. § 5702(a)(1) (2000). "The purpose of per diem is to reimburse an employee for meals and lodging while on temporary duty while he also maintains a residence at his permanent duty station." Matter of: Frederick C. Welch, 62 Comp. Gen. 80, 84 (1982). It is not contested that the agency successively changed the plaintiffs' permanent duty stations each time they were assigned to a new work area. The plaintiffs contend, however (as best we understand it), that if an employee is assigned to a duty station for a short period of time here periods ranging from a few weeks to more than a year (1) that station cannot be a permanent duty station; (2) the agency must designate some other place as the permanent duty station; and (3) per diem compensation must be paid while the employee is away from that permanent duty station.

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 among 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 special 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 employee 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," 5 U.S.C. § 5702(a)(1), and they were not entitled to per diem compensation.

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 be 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.

5 U.S.C. § 5942(a) (2000) (emphases added). The Court of Federal Claims, adopting the government's arguments, rejected this contention on the ground that "compensation pursuant to 5 U.S.C. § 5942 depends upon establishing that the commuting to and from the worksites required `... an appreciable degree of expense, hardship, and inconvenience, beyond that normally encountered in metropolitan commuting.'" Agwiak, slip op. at 4 (quoting 5 U.S.C. § 5942). Be...