Kevin Aubart v. Ryan McCarthy ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN T. AUBART, No. 19-16676
Plaintiff-Appellant, D.C. No. 1:17-cv-00611-LEK-KJM
v.
MEMORANDUM*
RYAN D. McCARTHY, Acting Secretary
of the Army,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Kevin T. Aubart, a civilian military employee, appeals pro se from the
district court’s summary judgment in his 28 U.S.C. § 1346(a)(2) action alleging
entitlement to reimbursement for his commuting costs after the Army changed his
duty station. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment because Aubart failed
to raise a genuine dispute of material fact as to whether he was entitled to
reimbursement. See Dep’t of Def., The Joint Travel Regulations, App. A, A1-33
(defining Permanent Duty Station as a “[b]uilding or other place (base, military
post, or activity) where an employee regularly reports for duty”); see also FTC v.
Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory,
self-serving affidavit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”).
We reject as meritless Aubart’s contentions that his First Amendment rights
were violated by the district court’s order regarding communication with army
personnel and that the district court improperly disregarded certain declarations.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 19-16676