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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas v. State, Dept. of Environmental Conservation, Division of Environmental Health, Food Safety & Sanitation (8/26/2016) sp-7121

Thomas v. State, Dept. of Environmental Conservation, Division of Environmental Health, Food Safety & Sanitation (8/26/2016) sp-7121

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                   

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                     

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



ERNEST  FRANK  THOMAS,                                      )  

                                                                                                     

                                                            )         Supreme Court No. S-15371  

                              Appellant,                    )  

                                                                                                                            

                                                            )         Superior Court No. 3AN-10-10515 CI  

                    v.                                      )  

                                                                                         

                                                            )         O P I N I O N  

STATE OF ALASKA,  

                                                            )  

DEPARTMENT OF  

                                 

                                                            )                                            

                                                                     No. 7121 - August 26, 2016  

ENVIRONMENTAL  

                                                            )  

CONSERVATION, DIVISION OF  

                                                            )  

ENVIRONMENTAL HEALTH,  

                                                            )  

FOOD SAFETY & SANITATION,  

                                                            )  

                                                            )  

                              Appellee.                     )  

                                                            )  



                                                                                                      

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                          

                    Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                                                                                            

                    Appearances:           Ernest  Frank  Thomas,  pro  se,  Eden,  New  

                                                                                                 

                    York, Appellant. Margaret Paton Walsh and Aesha Pallesen,  

                                                                                                         

                    Assistant  Attorneys  General,  Anchorage,  and  Craig  W.  

                                                                                  

                    Richards, Attorney General, Juneau, for Appellee.  



                                                                                                         

                    Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  

                                               

                    Bolger, Justices.  



                                         

                    MAASSEN, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                                                                                                                     

                    Astateagencyterminated theemployment ofaseafoodinspector following  



                                                                                                                              

a contentious airport inspection that resulted in complaints by a seafood processor and  



                                                                                                                                

an airline.  The inspector contends that his termination was actually in retaliation for an  



                                                                                                                             

ethics complaint he had filed over a year earlier against the agency's director.   The  



                                                                                                                      

superior court decided most of the inspector's claims against him on summary judgment  



                                                                                                                              

but allowed one claim, alleging a violation of his free speech rights, to go to trial.  The  



                                                                                                                               

jury found that the ethics complaint was not a substantial or motivating factor in the  



                                                                                                                      

inspector's termination, and the superior court entered final judgment for the agency.  



                                                                                                                       

                     On appeal, the inspector argues that the superior court erred in granting  



                                                                                                                             

summary judgment, in denying his motion for a new trial based on allegations of jury  



                                                                                                                          

misconduct, and in awarding attorney's fees to the agency. Finding no error, we affirm.  



                                  

II.       FACTS AND PROCEEDINGS  



                                                                                             

          A.         Thomas's Discipline History And His Ethics Complaint  



                                                                                                              

                    Ernest Thomas was employed by the Alaska Department of Environmental  



                                                                                                                           

Conservation (the Department or the State) as a seafood inspector for more than 20 years.  



                                                                                                                         

Though he had previous instances of discipline, the principal storyline of his lawsuit  



                                                                                                                               

began on February 12, 2008.  Thomas spoke that day with an unknown member of the  



                                                                                                                     

public about new seafood regulations.  Thomas's acting supervisor, Duane McIntire,  



                                                                                                                        

asked Thomas to find the person's name for follow-up. After several reminders, Thomas  



                                                                                                                           

sent McIntire a "menu of telephone numbers that perhaps are the correct person," along  



                                                                                                                               

with the advice "happy hunting."  McIntire asked human resources specialists in the  



                                                                                                        

Department for help in responding to Thomas's email. Based on their recommendations,  



                                                                                                            

he ultimately emailed Thomas: "My expectation is that you politely and professionally[]  



                                                                      

make the calls to track down who you spoke to."  Thomas responded, and included in  



                                                                                                                         

his lengthy email was this: "Your patronizing message is not appreciated. . . . I believed  



                                                                     

                                                               - 2 -                                                       7121
  


----------------------- Page 3-----------------------

you to be a person of some principle and now see after today that I was wrong.                                                                                                                                                  Please  



do   not   allow   your   new   found  acting  supervisory   position   to   swell   your   head   too  



much . . . ."                      



                                      The Department initiated an investigation of Thomas's behavior in the                                                                                                                                



exchange, serving him with a notice of investigatory hearing in the early afternoon of                                                                                                                                                        



February 14.  A few hours later Thomas sent an email to an assistant attorney general,                              



alleging that the Department's director, Kristin Ryan, had committed an ethics violation.                                                                                                                                                              



Thomas alleged that he had recently discovered Ryan's marriage to a seafood industry                                                                                                                                        



lobbyist, creating a conflict of interest, and that she was unfairly punishing him for his                                                                                                                                                  



discovery.   At the bottom of the email Thomas asserted:                                                                                                       "This is my formal complaint                             



to commence an investigation:                                                          This is my formal request for whistleblower protections                                                                       



                                                                                        1  

to be implemented for myself."                                                              



                                      Theassistant attorney generalsentThomasaconfidential reply on February  

                                                                                                                                                                                                                           



20.  She informed him that the information he had provided did "not appear to allege a  

                                                                                                                                                                                                                                                 



violation of the Ethics Act by Ms. Ryan," that his invocation of whistleblower status was  

                                                                                                                                                                                                                                         



without effect, and that if he believed he was the subject of retaliation he should pursue  

                                                                                                                                                                                                                                 



the grievance procedures available through his collective bargaining agreement.  

                                                                                                                                                                                                                                    



                                      OnFebruary25 Thomas received a written reprimand fromtheDepartment  

                                                                                                                                                                                                                   



for his "inappropriate and unprofessional behavior" in the course of his email exchange  

                                                                                                                                                                                                                         



with  McIntire.                                    Over  the  next  year  he  was  disciplined  several  more  times  for  

                                                                                                                                                                                                                                         



disrespectful  and  argumentative  emails,  derogatory  remarks  about  coworkers,  and  

                                                                                                                                                                                                                                        



ignoring the chain of command.   The complaints against him prompted three more  

                                                                                                                                                                                                                                     



investigatory hearings and resulted in three suspensions without pay (one for three days  

                                                                                                                                                                                                                                       



and two for five), as well as written admonitions. A May 2009 letter to Thomas from his  

                                                                                                                                                                                                                                            



                   1  

                                                                   

                                      Emphasis omitted.  



                                                                                                                           

                                                                                                                    - 3 -                                                                                                                        7121  


----------------------- Page 4-----------------------

new supervisor, Robert Pressley, outlined Thomas's history of discipline since early                                                                                                                                                                                                   



2008 and warned him "that any further violations may result in further discipline up to                                                                                                                                                                                                           



and including dismissal."                                                                



                       B.                     The Cordova Incident And Thomas's Termination                                                                                              



                                              On August 25, 2009, Thomas traveled to Cordova to conduct inspections                                                                                                                                               



at area seafood facilities.                                                           The next day a representative of Ocean Beauty Seafoods sent                                                                                                                                          



an email to Pressley and Ryan enclosing a report of an incident at the Cordova airport.                                                                                                                                                                                                                     



According to the report, when Thomas got off the plane in Cordova he approached the                                                                                                                                                                                                           



gate counter, "asked for the [Alaska Airlines] manager[,] . . . confronted her in an                                                                                                                                                                                                           



abusive manner[,] and complain[ed] that the fish on the tarmac . . . had been sitting too                                                                                                                                                                                                     



                                                                                                                                                                                                                                                      2  

                                                                                                                                                                                                                                                                           

long in 60[-]degree weather and he was going to do something about it."                                                                                                                                                                                     The manager  



                                                                                                                                                                                                                                                                             

asked Thomas for identification, but he could not comply because it was in his checked  



                                                                                                                                                                                                                                                                                                

luggage; he instead gave her a business card.  When the manager pressed him for an  



                                                                                                                                                                                                                                                                              

official identification, Thomas engaged in "another round of complaints and general  



                                                                                                                                                                                                                                                                              

abuse" until his luggage arrived, when "he finally produced [a] very old and tattered  



                                                

 [Department] ID."  



                                                                                                                                                                                                                                                                             

                                              As the email described it, the Alaska Airlines manager informed Thomas  



                                                                                                                                                                                                                                                                                               

that "all the cases had already been TSA screened and that Ocean Beauty was part of the  



                                                                                                                                                                                                                                                                                             

screened facility program." The email said that Thomas "then threw another tantrumand  



                                                                                                                                                                                                                                                                          

insisted on removing a case of [Ocean Beauty] fish from the tarmac."  The manager  



                                                                                                                                                                                                                                                                                           

contacted her cargo supervisor, who spoke to Thomas on the phone, describing this  



                                                                                                                                                                                                                                                                                    

conversation later as a "loud, unpleasant and non-productive communication."  Local  



                                                                                                                                                                                                                                                                                              

police at the airport contacted state troopers, who authorized Thomas's inspection.  



                       2                      According to the report, Alaska Airlines had moved the pallets of frozen                                                                                                                                                            



fish "out on the tarmac directly from the cooler only 5 minutes before                                                                                                                                                                                           the aircraft   

landed."   



                                                                                                                                              - 4 -                                                                                                                                     7121
  


----------------------- Page 5-----------------------

                                 According to Ocean Beauty's report, "Thomas had produced a simple                                                                                                     



thermometer early on in [the] confrontation and walked around with it, took it to the                                                                                                                           



bathroom and later laid it on the ticket counter; no attempt was made to sanitize it in any                                                                                                                     



way."   When the case of fish was produced for his inspection, he opened it, "plunge[d]                                                                                                       



his hands into the fish cavities without gloves," and "claimed the flesh temperature                                                                                                      

                                                            3      Alaska  Airlines  repackaged  the  box  of  fish,  but  after  the  

registered   40   degrees."                                                                                                                                                                                     



inspection Ocean Beauty could no longer attest to its quality and therefore instructed its  

                                                                                                                                                                                                                   



customer to destroy it.  According to Ocean Beauty's report, this entire process delayed  

                                                                                                                                                                                                     



the aircraft's departure by 25 minutes.  

                                                                                                  



                                 Upon receipt of Ocean Beauty's report - and a corroborating complaint  

                                                                                                                                                                                                



from Alaska Airlines - Ronald Klein, manager of the Department's Food Safety and  

                                                                                                                                                                                                               



Sanitation Program, asked for investigative assistance from the Environmental Crimes  

                                                                                                                                                                                                       



Unit.  The Unit was given the Department's inspection protocols and interviewed six  

                                                                                                                                                                                                                 



witnesses,  though  not  Thomas.                                                       It  submitted  a  report  to  the  Department  in  early  

                                                                                                                                                                                                           



September 2009,which largely substantiated OceanBeauty's description of theincident.  

                                                                                                                                                                                                                           



                                 Following  an  investigatory  hearing  on  September  18,  the  Department  

                                                                                                                                                                                          



terminated Thomas's employment because of the Cordova incident.  The September 23  

                                                                                                                                                                                                                   



termination letter advised Thomas that he had shown poor judgment, failed to follow  

                                                                                                                                                                                                        



established  protocols,  displayed  highly  inappropriate  behavior,  and  communicated  

                                                                                                                                                                                  



unprofessionally.  The letter took note of Thomas's history of warnings and discipline  

                                                                                                                                   



for similar behavior and concluded that he should have known "what management's  

                                                                                                                                                                                    



                 3                Ocean Beauty questioned the accuracy of this result, but it was within the                                                                                                     



range allowed for safe transport, as Thomas acknowledged at the later investigatory                                                                                                    

hearing.  See   18 Alaska Administrative Code (AAC) 34.105(c) (2016) (providing that                                                                                               

"[t]he processor shall hold seafood products upon receipt at a temperature of not more         

                                                                                                                                                                               

than 45 Fahrenheit until processing of the seafood product begins").  



                                                                                                              

                                                                                                       - 5 -                                                                                                7121
  


----------------------- Page 6-----------------------

expectations  [were]  regarding  .  .  .  appropriate  communication."                                  The  day  after  he  

                                                                                                                               



received this letter Thomas tendered his resignation.  

                                                                                 



          C.        Thomas's Lawsuit  

                                      



                    Thomasfiled acomplaint againsttheStateinSeptember 2010, alleging nine  

                                                                                                                              



causes of action.  An amended complaint trimmed away all non-employment-related  

                                                                                



claims, leaving his assertions that the State (1) breached the covenant of good faith and  

                                                                                                                              



fair dealing; (2) violated his First Amendment rights; (3) deprived him of due process in  

                                                                                                                                 



the   disciplinary   proceedings;   (4)   violated   the   Alaska   Whistleblower   Act;   and   (5)  



wrongfully retaliated against him.  The State moved for summary judgment on all these  

                                                                                                                            



claims on grounds that there was no genuine dispute about the reasons for Thomas's  

                                                                                                                     



dismissal, and the superior court granted the motion.  

                                                                     



                    Thomas moved for reconsideration, which the superior court granted only  

                                                                                                                             



as to his claim that he had been terminated for exercising his First Amendment rights,  

                                                                                                                          



i.e., bringing his ethics complaint against the director.  The claim was tried to a jury.  

                                                                                                                                     



During ten days of trial the parties submitted several hundred exhibits, and the jury heard  

                                                                                                                            



from 14 witnesses.  The jury deliberated for two hours before returning a verdict for the  

                                                                                                                               



State,  answering  "no"  to  the  question,  "Was  Ernest  Thomas's  filing  of  the  ethics  

                                                                                                                          



complaint against Director  Ryan  a substantial or  motivating  factor  for  the State of  

                                                                                                                                



Alaska's termination of his employment?"  

                                           



                    The superior court denied Thomas's motion for a new trial, which was  

                                                                                                                             



based largely on allegations of juror misconduct.   The court also awarded the State  

                                                                                                                            



attorney's fees of $75,000.  Thomas appeals.  

                                                         



III.      STANDARDS OF REVIEW  

                                          



                    "We review a grant of summary judgment de novo to 'determine whether  

                                                                                                                        



any genuine issue of material fact exists and whether the moving party is entitled to  

                                                                                                                                 



                                                              - 6 -                                                        7121
  

                                                                     


----------------------- Page 7-----------------------

                                                                                                                          4  

judgment on the law applicable to the established facts.' "                                                                   " 'Whether the evidence           



presented a genuine issue of material fact is a question of law,' and '[w]e draw all factual                                                                         



 inferences in favor of, and view the facts in the light most favorable to, the party against                                                                       

whom summary judgment was granted.' "                                                 5  



                            "The standard of review applicable to a superior court's denial of a motion  

                                                                                                                                                                   

 for a new trial based upon alleged juror misconduct is the abuse of discretion standard."6  

                                                                                                                                                                                    



 "This court 'will not disturb a trial court's decision on [a motion for a new trial] except  

                                                                                                                                                                     

 in exceptional circumstances to prevent a miscarriage of justice.' "7  

                                                                                                                                        



                            Finally, "[w]hether thesuperior court appliedtheappropriatelegalstandard  

                                                                                                                                                                  

 in its consideration of a fee petition presents a question of law that we review de novo."8  

                                                                                                                                                                                    



 Once we have identified the appropriate standard, "we review awards of attorney's fees  

                                                                                                                                                                           



              4             Mills v. Hankla                , 297P.3d           158, 165 (Alaska2013)                           (internalcitation omitted)         



 (quoting   Wright v. State                       , 824 P.2d 718, 720 (Alaska 1992)).                                         



              5             Becker v. Fred Meyer Stores, Inc., 335 P.3d 1110, 1113 (Alaska 2014)  

                                                                                                                                                                      

 (alteration in original) (footnote omitted) (first quoting Lockwood v. Geico Gen. Ins. Co.,  

                                                                                                                                                                          

 323 P.3d 691, 696 (Alaska 2014); and then quoting Hoendermis v. Advanced Physical  

                                                                                                                                                                 

 Therapy, Inc., 251 P.3d 346, 351 (Alaska 2011)).  

                                                                                        



              6             Van Huff v. Sohio Alaska Petroleum Co., 835 P.2d 1181, 1187 (Alaska  

                                                                                                                                                                  

 1992) (citing West v. State, 409 P.2d 847, 852 (Alaska 1966)).  

                                                                                                                  



              7             Id. (alteration in original) (quoting Buoy v. Era Helicopters, Inc., 771 P.2d  

                                                                                                                                                                          

439, 442 (Alaska 1989)).  

                                      



              8             Powell v. Powell, 194 P.3d 364, 368 (Alaska 2008).  

                                                                                                                          



                                                                                     - 7 -                                                                              7121
  

                                                                                            


----------------------- Page 8-----------------------

                                                  9  

 for an abuse of discretion."                        "Abuse exists if the [superior] court's decision 'is arbitrary,                             

 capricious, manifestly unreasonable, or the result of an improper motive.' "                                                               10  



IV.          DISCUSSION  



                                                                                                                                           

             A.          The Superior Court Did Not Err By Granting Summary Judgment.  



                                                                                                                                                            

                         Thomas's amended complaint asserted five causes of action against the  



                                                                                                                                              

 State; the superior court granted summary judgment on all of them before reinstating  



                                                                                                                                                        

 Thomas's First Amendment claim on reconsideration.  Thomas contends that the grant  



                                                                                                                                                         

 of summary judgment as to his other claims is reversible error.  We do not agree.  



                                                                                                                                                       

                         "Alaska Civil Rule 56 provides for judgment to be granted to a party where  



                                                                                                                                                              

 'there is no genuine issue as to any material fact' and 'the moving party is entitled to  



                                                          11  

                                                                                                                                                       

judgment as a matter of law.' "                                "[A] party seeking summary judgment has the initial  



                                                                                                                                                              

burden of proving, through admissible evidence, that there are no disputed issues of  



                                                                                                                                                               12  

                                                                                                                                                                    

material fact and that the moving party is entitled to judgment as a matter of law." 



                                                                                                                                           

 "Once the moving party has made that showing, the burden shifts to the non-moving  



                                                                                                                                             

party 'to set forth specific facts showing that he could produce evidence reasonably  



             9            Wagner v. Wagner                   , 183 P.3d 1265, 1266 (Alaska 2008) (citing                                           Ware v.   



 Ware, 161 P.3d 1188, 1192 (Alaska 2007)).                           



             10           Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)  

                                                                                                                                                      

 (quoting Monzingo v. Alaska Air Grp., Inc., 112 P.3d 655, 659 (Alaska 2005)).  

                                                                                                                                       



             11          Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)  

                                                                                                                                                       

 (quoting Alaska R. Civ. P. 56(c)).  

                                                    



             12          Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 n.25 (Alaska  

                                                                                                                                                   

2008) (citing Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska  

                                                                                                                                                   

 1995)).  



                                                                             - 8 -                                                                      7121
  

                                                                                    


----------------------- Page 9-----------------------

tending to dispute or contradict the movant's evidence and thus demonstrate that a                                                                   



                                                        13  

material issue of fact exists.' "                            



                                                                                                                                         

                         1.	         There  was  no  genuine  issue  of  material   fact  precluding  

                                                                                                                                

                                     summary judgment on Thomas's due process claim.  



                                                                                                                                                         

                         One of Thomas's causes of action cited 42 U.S.C.  1983 and alleged that  



                                                                                                                                                          

he was deprived of due process in the course of the proceedings that resulted in his  



                                             

termination; he alleged specifically that he was not informed before the hearing of the  



                                                                                                       14 

                                                                                                                     

allegations made by Ocean Beauty and Alaska Airlines.                                                       "To sustain an action under  



                                                                                                                                                        

42 U.S.C.  1983, [a claimant] must show:   (1) that the conduct complained of was  



                                                                                                                                                

committed by a person acting under color of state law and (2) that the conduct deprived  



                                                                     15  

                                                                                                                                            

the plaintiff of a constitutional right."                                 Public employees, because of their recognized  



                                                                                                                                                              

property interest in continued employment, have a constitutional due process right to a  



                                             16  

                                                                                                                                                   

pre-termination hearing.                          "At a minimum, the employee must receive oral or written  



                                                                                                                                                            

notice of the proposed discharge, an explanation of the employer's evidence[,]  and an  



                                                                   17  

                                                 

opportunity to present his position." 



            13           Christensen, 335 P.3d at 517 (quoting                                 State, Dep't of Highways v. Green                              ,  



586 P.2d 595, 606 n.32 (Alaska 1978)).                       



            14           Thomas also alleged as a basis of his due process claim that McIntire, his  

                                                                                                                                                           

then-acting supervisor, "was unavailable for cross-examination" at the time of his first  

                                                                                                                                                         

investigatory hearing, apparently in reference to the February 2008 email exchange. He  

                                                                                                                                                           

does not pursue this assertion on appeal.  

                                                                              



            15           Okpik v. City of Barrow, 230 P.3d 672, 677 (Alaska 2010) (alteration in  

                                                                                                                                                            

original) (quoting Crawford v. Kemp, 139 P.3d 1249, 1255 n.10 (Alaska 2006)).  

                                                                                                                                        



            16           City of North Pole v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997).  

                                                                                                                                      



            17           Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1149 (Alaska 1986).
  

                                                                                                                                                                  

The hearing procedure "should provide an initial check against a mistaken decision by
  

                                                                                                                                                           

                                                                                                                                       (continued...)
  



                                                                            - 9 -	                                                                    7121
  

                                                                                  


----------------------- Page 10-----------------------

                          In granting summary judgment to the State on Thomas's  1983 claim, the                                                                  



superior court reasoned that the constitutional minimum had been satisfied:                                                                          "Thomas  



was provided with 'notice and opportunity for hearing appropriate to the nature of the                                                                             

               18    Thomas contends this was error because the State "did not fully explain its  

case.' "                                                                                                                                                            



evidence" against him.  On appeal he cites the Department's failure to give him a copy  

                                                                                                                                                               



of the Environmental Crimes Unit's report before the hearing,  though  he does not  

                                                                                                                                                                  

cogently explain how the report would have helped his defense.19   And the law requires  

                                                                                                                                                         



only that the State provide Thomas with an explanation of the evidence against him, not  

                                                                                                                                                                   



necessarily every piece of it.  

                                                    



                          The written notice of the "investigatory interview" that led to Thomas's  

                                                                                                                                                     



termination advised him that "on Tuesday, August 25, 2009, while in travel status for the  

                                                                                                                                                                   



State of Alaska, you engaged in inappropriate and unprofessional communication and  

                                                                                                                                                                  



behavior while performing your duties in your capacity as an Environmental Health  

                                                                                                                                                            



Officer III."  The letter, dated September 17, scheduled the interview for the following  

                                                                                                                                                      



day; it informed himthe interviewwould be his "only opportunity to provide explanation  

                                                                                                                                                   



or mitigating facts prior to a determination regarding possible administrative action" and  

                                                                                                                                                                  



warned that the allegations against him, "[i]f substantiated, . . . may result in discipline  

                                                                                                                                                      



up to termination."  

                                       



             17(...continued)  



                                                                                                                                                   

the employer, ensuring that there are reasonable grounds to believe  the allegations  

                                                               

against the employee are true."  Id.  



             18           The superior court's quoted phrase is from Zabek, 934 P.2d at 1297.  

                                                                                                                                                     



             19           Thomas argues that it was unusual for the Environmental Crimes Unit to  

                                                                                               

be involved in the investigation of a State employee's conduct "when no [c]riminal  

                                                                                                                                                     

[a]ctivity was suspected" and implies that he could have attacked the report's credibility  

                                                                                                                                                     

on that basis.  But he provides no record support for the claim that this was a suspicious  

                                                                                                                                                     

use of the Unit's expertise.  

                                  



                                                                               - 10 -                                                                          7121
  

                                                                                         


----------------------- Page 11-----------------------

                                            Though the letter was short on detail, Thomas had learned of the complaint                                                                                                                                        



over two weeks earlier, soon after his return from Cordova.                                                                                                                                             In an email to a coworker                            



on September 2, he explained that a supervisor had informed him that he was "being                                                                                                                                                                       



investigated as a consequence of a complaint by Alaska Airlines"; he had therefore                                                                                                                                                                              



begun "composing [a] narrative of events for the investigation while fresh in [his] mind."                                                                                                                                                                                                        



The record does not fully explain how he learned the details of the complaints against                                                                                                                                                                                 



him, but the transcript of the September 18 interview demonstrates that he came prepared                                                                                                                                                                          



to address them.                                        He brought copies of photos he had taken on the tarmac and inside the                                                                                                                                                        



airport, and he read his lengthy narrative of events, providing a copy to one of the                                                                                                                                                                                                

                                           20   He cited the statutes and regulations he believed applied to the situation  

interviewers.                                                                                                                                                                                                                                                     



and responded to the interviewers' pointed questions about other witnesses' accounts,  



his demeanor and communications at the scene, and the procedures he used to test the  

                                                                                                                                                                                                                                                                                     



fish.                 The  interview  lasted  about  an  hour;  it  clearly  "allow[ed]  the  administrative  

                                                                                                                                                                                                                                              

authority to examine both sides of the controversy."21  Since Thomas received "notice  

                                                                                                                    



of  the  proposed  discharge,  an  explanation  of  the  employer's  evidence[,]  and  an  

                                                                                                                                                                                                                                                                                                  

opportunity to present his position,"22 we agree with the superior court that there was no  

                                                                                                                                                                                                                                                                                       



genuine issue of material fact precluding summary judgment for the State on Thomas's  

                                                                                                                                                                                                                                                              



due process claim.  

                                         



                      20                    Attending the interview besides Thomas were a human resources manager,                                                                                                                                               



Thomas's supervisors Pressley and Klein, and a union representative.                                                                                                                                                                      



                      21                    Nichols v. Eckert, 504 P.2d 1359, 1365 (Alaska 1973).  

                                                                                                                                                                                                             



                      22                    Storrs, 721 P.2d at 1149.  

                                                                                                            



                                                                                                                                       - 11 -                                                                                                                                  7121
  

                                                                                                                                                      


----------------------- Page 12-----------------------

                         2.	         There   was    no    genuine    issue    of material fact precluding                                 

                                     summary   judgment   on   Thomas's   claim   for   breach   of   the  

                                     covenant of good faith and fair dealing.                       



                         "Every employment contract in Alaska is subject to the implied convent of                                                           



                                                     23  

                                                                                                                                             

good faith and fair dealing."                              "The covenant contains both objective and subjective  



                                                                                                        24  

                                                                                                                                            

components. An employer can breacheither component."                                                        "[T]heobjectivecomponent  



                                                                                       

 'prohibits the employer from dealing with the employee in a manner that a reasonable  



                                                             25  

                                                                           

person would regard as unfair.' "                                 The subjective component requires proof that "the  



                                                                                                                                                           

employer's  termination  decision  was  'actually  .  .  .  motivated  by  an  improper  or  

                                                                                                                                                26   Proof  

                                                                                                                                                      

impermissible objective' - that the decision 'was actually made in bad faith.' " 



of subjective bad faith requires more than "[t]he employee's own speculation" and  

                                                                                                                                                         



            23           Crowley v. State, Dep't of Health & Soc. Servs.                                             , 253 P.3d 1226, 1230            



(Alaska 2011) (citing                   Smith v. Anchorage Sch. Dist.                          , 240 P.3d 834, 844 (Alaska 2010)).                 



            24           Hoendermis  v.  Advanced  Physical  Therapy,  Inc.,  251  P.3d  346,  356  

                                                                                                                                                        

(Alaska 2011) (internal citation omitted) (citing Charles v. Interior Reg'l Hous. Auth.,  

                                                                                                                              

55 P.3d 57, 62 (Alaska 2002)).  

                                            



            25          Lentine v. State, 282 P.3d 369, 376 (Alaska 2012) (quoting Mitchell v. Teck  

                                                                                                                                                        

Cominco  Alaska,  Inc.,  193  P.3d  751,  761  (Alaska  2008)).                                                      Thomas  makes  a  terse  

                                                                                                                                                       

argument based on the test's objective component, contending that the Department's  

                                                                                                                                       

treatment of him was objectively unreasonable because another seafood inspector was  

                                 

not terminated for emails that "were every bit as hostile as" Thomas's (though the other  

                                                                                                                                                       

employee was eventually "forced into voluntary resignation" for drinking while driving  

                                                                                                                                                   

a State vehicle).  The superior court held that the two men were not similarly situated.  

                                                                                                                                                                  

"[S]imilarly situated employees are those who are members of the same class, as defined  

                                                                                                                                                   

by job position and the nature of the alleged misconduct." Hoendermis, 251 P.3d at 357.  

                                                                                                                                                                 

Thomas's wholly unsourced description of the other employee's circumstances gives us  

                                                                                                                                                            

no basis on which to conclude that the superior court erred in its holding.  

                                                                                                                                         



            26           Crowley, 253 P.3d at 1230 (alteration in original) (quoting Era Aviation,  

                                                                                                                                       

Inc. v. Seekins, 973 P.2d 1137, 1141 (Alaska 1999)).  

                                                                                     



                                                                           - 12 -	                                                                    7121
  

                                                                                    


----------------------- Page 13-----------------------

                                                                                                                                                                                                                 27  

"personal feelings of unfairness" about the employer's motives.                                                                                                                                                          Here, in granting              



summary judgment on Thomas's claim that the Department breached the covenant, the                                                                                                                                                                                         



superior court found no evidentiary support for his theory that he was fired in retaliation                                                                                                                                                        



for his ethics complaint - only Thomas's own "speculation and personal feelings of                                                                                                                                                                                          



unfairness."   



                                           Thomas appears to take a different tack on appeal, arguing that there was                                                                                                                                                   



a genuine issue of material fact involving what he terms the "ghost-written" email                                                                                                                                                                               



McIntire sent him in February 2008, when Thomas was resisting McIntire's request that                                                                                                                                                                                   

                                                                                                                          28  Thomas contends that the email, drafted with  

he track down a constituent's identity.                                                                                                                                                                                                                              



the help of a human resources specialist, was intended to goad him into making an  

                                                                                                                                                                                                                                                                           



insubordinate response and therefore was in subjective bad faith.  The State argues, on  

                                                                                                                                                                                                                                                                           



the other hand, that there can be no evidence of bad faith in the fact that an acting  

                                                                                                                                                                                                                                                               



supervisor seeks the assistance of those with expertise in personnel issues when drafting  

                                                                                                                                                                                                                                                          



a potentially sensitive communication to an employee.  

                                                                                                                                                                               



                                           The State does not dispute that McIntire sought advice from the personnel  

                                                                                                                                                                                                                                                    



division before he drafted his email. We must simply decide whether, on the undisputed  

                                                                                                                                                                                                                                                 

facts, the State was entitled to judgment as a matter of law on Thomas's claim.29                                                                                                                                                                                       We  

                                                                                                                                                                                                                                                                       



agree with the superior court that the undisputed facts themselves provide no evidence  

                                                                                                                                                                                                                                                       



of subjective bad faith.  Thomas's argument depends instead on speculation about the  

                                                                                                                                                                                                                                                                         



                     27                   Id.  



                     28                    McIntire's email informed Thomas that he was expected to "politely and                                                                                                                 



professionally[] make the calls                                                                          to  track down who [he] spoke to," suggested some                                                                                                       

sources  for him to check, reminded him that he represented the Department in his                                                                                                                                                                                        

dealings with the public, and asked for the requested information "as soon as possible,                                                                                                                                                                

hopefully by this afternoon."                                                                 



                     29                   Alaska R. Civ. P. 56(c).  

                                                                                                    



                                                                                                                                 - 13 -                                                                                                                             7121
  

                                                                                                                                                


----------------------- Page 14-----------------------

 actors' motives: He contends that the Department's representatives intentionally drafted                                                                                                                                                                        



 an email that he would find "patronizing" and that would provoke him to respond                                                                                                                                                                            



inappropriately.   His speculation is not enough to support his claim.                                                                                                                                                        



                                           3.	                   Whether   the   State   was   entitled   to   summary   judgment   on  

                                                                 Thomas's whistleblower and wrongful termination claims is                                                                                                                                                       

                                                                 moot because the jury rejected the factual basis of the claims.                                                                                                                            



                                           Thomas   next   asserts   that   the   superior   court   erred   in   dismissing   his  



"whistleblower claim" under AS 39.90.100.                                                                                                      The State counters that Thomas "fully and                                                                                    



 fairly litigat[ed] his basic theory that he was fired in retaliation for making an ethics                                                                                                                                                                          



complaint," and the jury rejected that theory. We agree: Thomas's whistleblower claim                                                                                                                                                                                 



had the same factual basis as the First Amendment claim that was presented to the jury                                                                                                                                                                                    



 and decided against him.                                                           



                                           "To bring suit under the Whistleblower Act 'an employee must show that                                                                                                                                                          



 (1)   she has engaged in protected activity and (2) the activity was a "substantial" or                                                                                                                                                                                        



                                                                                                                                      30  

"motivating factor" in her termination.' "                                                                                                                                                                                                                                          

                                                                                                                                               "Reporting a matter of public concern to a  



                                                                                                                                 31  

                                                                                                                                                                                                                                                                      

public  body  is  'protected  activity.'  "                                                                                                   Thomas  went  to  trial  only  on  his  First  



                                                                                                                                           

Amendment claim, which required that he prove the following:  "(1) he was subjected  



                                                                                                                                                                                                                                     

to an adverse employment action, . . . (2) he engaged in speech that was constitutionally  



                                                                                                                                                                                                                                                        

protected because it touched on a matter of public concern[,] and (3) the protected  



                                                                                                                                                                                                                                   32  

                                                                                                                                                                                                                                           

 expression was a substantial motivating factor for the adverse action." 



                      30                    Okpik   v.   City   of  Barrow,   230   P.3d   672,   678   (Alaska   2010)   (quoting  



Hammond v. State, Dep't of Transp. & Pub. Facilities, 107 P.3d 871, 874 n.5 (Alaska  

2005)).  



                      31	                  Id.  



                      32  

                                                                                                                                                                                                                                                           

                                           Sengupta v. Univ. of Alaska, 139 P.3d 572, 576 (Alaska 2006) (quoting  

                                                                                                                                                                                                                           

 Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 976 (9th Cir. 2002)).  



                                                                                                                                                  

                                                                                                                                   - 14 -	                                                                                                                             7121
  


----------------------- Page 15-----------------------

                                The "protected activity" that Thomas alleged as a necessary element of the                                                                                            



whistleblower claim was the same activity that he alleged as a necessary element of the                                                                                                               

                                                                                                                                                                                              33      To  

First Amendment claim:                                         his report of the director's alleged ethics violation.                                                                               



succeed on either claim he had to prove that the report was a substantial motivating  

                                                                                                                                                                                   



factor in his termination.  The jury answered "no" when asked on the special verdict  

                                                                                                                                                                                            



form whether Thomas's "filing of the ethics complaint against Director Ryan [was] a  

                                                                                                                                                                                                          



substantial or motivating factor for the State ofAlaska's terminationofhis employment."  

                                                                                                                                                                                                               



The jury's rejection of the factual basis for his whistleblower claim moots his argument  

                                                                                                                                                                                       

that the superior court erred by deciding it on summary judgment.34  

                                                                                                                                                                  



                                Thomas's first amended complaint asserted a separate cause of action for  

                                                                                                                                                                                                      



wrongful termination, alleging that he was terminated in retaliation for two protected  

                                                                                                                                                                                       



activities:  (1) "fil[ing] a complaint with the Attorney General's office," i.e., the ethics  

                                                                                                                                                                                               



                33              Thomas also appears to argue that his whistleblower claim encompassed                                                                        



the   Department's   "use   of   dishonest   and   deceitful   baiting   e-mails"   because   he   was  

disciplined for his own email responses after having claimed whistleblower status.                                                                                                                 But  

Thomas does not explain why the communications for which he was disciplined should                                                                                                           

be viewed as "protected activities."  Public employers are prohibited "from retaliating                                                                                              

against employees or prospective employees for engaging in                                                                                     constitutionally protected   

expression,"    id.    (emphasis    added);    not    every    instance    of    workplace    speech    is  

constitutionally protected, as Thomas apparently contends.                                                                                   



                34              See, e.g., Rockstad v. Erikson, 113 P.3d 1215, 1221 (Alaska 2005) (holding  

                                                                                                                                                                                         

that any error in the court's grant of summary judgment against a borrower on his statute  

                                                                                                                                                                                              

of limitations defense was harmless where evidence at trial showed a later payment that  

                                                                                                                                                                                                    

revived the debt); see also Martin v. Cty. of San Diego, 512 F. App'x 677, 679 (9th Cir.  

                                                                                                                                                                                                    

2013) (holding that a challenge to the district court's grant of summary judgment to the  

                                                                                                                                                                                                      

county on a  1983 claim based on a deputy sheriff's allegedly misleading warrant  

                                                                                                                                                                                          

application was mooted by the jury's verdict in favor of the deputy);  Hinkle v. City of  

                                                                                                                                                                                       

Clarksburg, W. Va., 81 F.3d 416, 420-21 (4th Cir. 1996) (holding that a challenge to the  

                                                                                                                                                                                                      

district court's grant of summary judgment on excessive force claims against "non- 

                                                                                                                                                                                               

shooting officers, a supervisor, or the City" was mooted by the jury's verdict in favor of  

                                                                                                                                                                                                        

the shooting officer).  

                               



                                                                                                - 15 -                                                                                           7121
  

                                                                                                           


----------------------- Page 16-----------------------

 complaint against the director; and (2) his "[u]nion activity and his history of filing                                                                             



 grievances."   His brief on appeal mentions the wrongful termination claim but does not                                                                                  



provide a factual or legal basis on which to analyze it separately from his whistleblower                                                          



 claim.   To the extent the wrongful termination claim is not governed by our discussion                                                                   

 of the whistleblower claim, we consider the issue waived.                                                           35  



                                                                                                                                                            

              B.	           The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Denying  

                                                                                                                                                                   

                            Thomas's Motion For An Evidentiary Hearing Or New Trial Based  

                                                                   

                            On Alleged Juror Misconduct.  



                                                                                                                                       

                           Thomas argues that the superior court erred when it refused to grant him  



                                                                                                                                                                           

 an evidentiary hearing or new trial after he raised allegations of juror misconduct.  In  



                                                                                                                                                     

 support ofapost-trial motion, Thomas submitted hisown affidavit relating conversations  



                                                                                                                                                                 

he had with one juror after trial.  According to Thomas, the juror told him that another  



                                                                                                                                                          

juror demanded that deliberations end by a certain time; that other jurors said demeaning  



                                                                                                                                                                

things about Thomas's appearance; that somejurors falselyclaimedtohaveseen Thomas  



                                                                                                                                                                         

 "selling or handing out pickles on the street corner" across from the court house; and that  



                                                                                                                                                                           

 one juror acted "like a school yard bully."  Thomas asserts in his brief that the juror he  



                                                                                                                                                                 

 spoke to also submitted an affidavit to the presiding judge of the Third Judicial District  



                                                                                                        

 stating his concerns, but this affidavit is not in our record.  



                                                                                                                                                             

                           Whether the superior court should have considered Thomas's proffered  



                                                                                                                                

 evidence is governed by Alaska Evidence Rule 606(b), which provides:  



                                                                                                                                                

                                         Upon  an  inquiry  into  the  validity  of  a  verdict  or  

                                                                                                                                                 

                           indictment, a juror may not be questioned as to any matter or  

                                                                                                                                       

                            statement   occurring   during   the   course   of   the   jury's  

                                                                                                                                           

                            deliberations or to the effect of any matter or statement upon  

                                                                                                                                               

                           that or any other juror's mind or emotions as influencing the  

                                                                                                                                                 

                           juror to assent to or dissent from the verdict or indictment or  



              35  

                                                                                                                                                                   

                           Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) ("[I]ssues not argued  

                                                                                                                                                        

 in opening appellate briefs are waived.  This rule applies equally to pro se litigants.").  



                                                                                            

                                                                                   - 16 -	                                                                                  7121  


----------------------- Page 17-----------------------

                      concerning    the    juror's    mental    processes    in    connection  

                      therewith,   except that a juror may testify on the question                        

                      whether extraneous prejudicial information was improperly  

                                                                                                            

                      brought  to  the  jury's  attention  or  whether  any  outside  

                                                                                                                          

                      influence was improperly brought to bear upon any juror.  

                                                                                             

                      Nor may a juror's affidavit or evidence of any statement by  

                                                                                                                     

                      the juror concerning a matter about which the juror would be  

                                                                                                    

                      precluded from testifying be received for these purposes.  



                                                                                                                                          

In Titus v. State we identified the competing interests addressed by Rule 606(b):  Its  



                                                                                                                                     

"general ban on using juror testimony to impeach verdicts" is intended "to protect jurors  



                                                                                                                                           

from harassment, to encourage free jury deliberation, and to promote the finality of  



                                                                                                                                  

verdicts," while the exceptions to the general ban are designed to "protect[] the interest  



                                                                                                                                   

in  avoiding  injustice"  by  allowing  juror  testimony  in  those  "situations  where  



                                                                                                               36  

                                                                                                 

irregularities have marred the integrity of the deliberation process."                                             The exceptional  

                                                                                                                            



situations  identified  by  the  rule  involve  "extraneous  prejudicial  information  .  .  .  

                                                                                                                                            



improperly  brought  to  the  jury's  attention" and  "outside  influence  .  .  .  improperly  

                                                                                                                            

brought to bear upon any juror."37  

                                           



                      None  of  the  allegations  in  Thomas's  affidavit  satisfy  these  narrow  

                                                                                                                                  



exceptions. The superior court did not abuse its discretion when it denied his motion for  

                                                                                                                                          



an evidentiary hearing or  new trial based on jury misconduct.  

                                                                                   



           36         963 P.2d 258, 261 (Alaska 1998);                          see also      Alaska R. Evid. 606(b) cmt.              



(summarizing the policy behind the rule as "to insulate the deliberative process and to  

                                                                                                                                    

promote finality of verdicts while not foreclosing testimony as to the extrinsic forces  

                                                 

erroneously injected into the process").  



           37         Larson v. State, 79 P.3d 650, 654 (Alaska App. 2003).  

                                                                                                      



                                                                   - 17 -                                                             7121
  

                                                                           


----------------------- Page 18-----------------------

                    C.                  The Superior Court Did Not Err In Its Attorney's Fees Award                                                                                                                                            .  



                                        Finally, Thomas argues that the superior court erred when it awarded the                                                                                                                                         



 State $75,000 in attorney's fees, which was the presumptively reasonable 30% of the                                                                                                                                                                    



 State's reasonable, actual attorney's fees pursuant to the Alaska Civil Rule 82(b)(2)                                                                                                                                                  



 schedule.   Thomas makes a number of arguments, but his primary ones are that the size                                                                                                                                                               



of the award unconstitutionally restricted his access to the courts and that he was a public                                                                                                                                                 



interest litigant exempt from the application of Rule 82.                                                                                                             We conclude that there was no                                                       



error.   



                                        1.	                 The State's attorney's fees award does not unconstitutionally                                                                              

                                                            block access to the courts.                                 



                                        We have acknowledged the possibility that a fee award could be "too high"                                                                                                                                 

and thereby deny a litigant's right of access to the courts.                                                                                                                    38  

                                                                                                                                                                                                                                                        

                                                                                                                                                                                         But we have upheld fee  



                                                                                                                                                                                                                39  

                                                                                                                                                                                                                                                          

awards in employment cases comparable to the award at issue here.                                                                                                                                                         And Rule 82  



                                                                                                                                                                                                                                                           

provides a safeguard against  awards that would deter access by allowing courts to  



                                                                                                                                                                                                                      

consider "the extent to which a given fee award may be so onerous to the non-prevailing  



                                                                                                                                                                                                                                                       

party  that  it  would  deter  similarly  situated  litigants  from  the  voluntary  use  of  the  



                        40  

courts."                       



                    38	                 State v. Native Vill. of Nunapitchuk                                                                     , 156 P.3d 389, 406 (Alaska 2007).                                                                         



                    39  

                                                                                                                                                                                                                                                            

                                        See, e.g., Lentine v. State, 282 P.3d 369 (Alaska 2012) (affirming award of  

                                                                                                                                                                                                                                               

over $50,000 against former employee of Department of Fish & Game despite her claims  

                                                                                                                                                                                                                                                      

that the equities weighed in her favor);   Van Huff v. Sohio Alaska Petroleum Co., 835  

                                                                                                                                                                                    

P.2d 1181, 1188-89 (Alaska 1992) (explaining that because the "the case was actively  

                                                                                                                                                                                                                                                    

pending over five years, there was extensive pretrial discovery, numerous complex legal  

                                                                                                                                                                                                                                                       

issues were briefed and argued before the trial court, the trial lasted thirteen days, and  

                                                                                                                                                                                                  

 Sohio won a total victory in the case," a $117,251.50 award was appropriate).  



                    40                  Alaska R. Civ. P. 82(b)(3)(I); see Gold Country Estates Pres. Grp., Inc. v.
  

                                                                                                                                                                                                                                                             

Fairbanks N. Star Borough, 270 P.3d 787, 799-800 (Alaska 2012) (observing that this
  

                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                          (continued...)
  



                                                                                                                         - 18 -	                                                                                                                   7121
  

                                                                                                                                       


----------------------- Page 19-----------------------

                            Here,   the   State's   itemized   billing   records   and   affidavits   support  the  



presumptive award.                          An assistant attorney general described the two years of pretrial                                                        



activity as involving "a myriad of issues and complaints spanning the twenty-plus years                                                                                   



 [Thomas]   worked   for   the   State,"   a   description   reflected   in   the   issues   on  appeal.   



Thomas's   discovery   requests   for   years   of   electronic   records   required   "review   of  



approximately  26,867   emails   and   3   [gigabytes]   of data                                                          for   privilege,   relevance,   or  



applicability to the discovery requests or the case in general."                                                                       Trial lasted ten days.                         



Thomas made no attempt to show actual financial harm that would indicate he was                                                                                             



deterred   from   using   the   courts.     Given   these   circumstances,   we   cannot   say   that   a  



presumptive   award   of   fees  based   on   the   Rule   82(b)(2)   schedule   was   an   abuse   of  



discretion.   And because the award was reasonable, in both its amount and its apparent                                                                           

effect on Thomas, it did not impermissibly infringe on his right of access to the courts.                                                                                        41  



              40(...continued)  



                                                                                                                                                                

rule provision requires superior court judges to "consider whether an award of attorney's  

                                                                                                                                                                                

fees will impair the constitutional right of access to the courts" (quoting Bozarth v.  

                                                                                                                                                                               

Atlantic Richfield Oil Co. , 833 P.2d 2, 6 (Alaska 1992) (Matthews, J. dissenting))).  



              41            Thomas takes issue with the State's billing rates and hours he contends  

                                                                                                                                                                 

were "excessive and duplicative."  We have considered these arguments as well and  

                                                                                                                                                                            

conclude they have no merit.  See Atlantic Richfield Co. v. State, 723 P.2d 1249, 1252  

                                                                                                                                                                          

(Alaska 1986) ("One permissible way to calculate fees for assistant attorneys general is  

                                                                                                                                                                                 

to use an average hourly billing rate for private attorneys. . . .  We find no error in the  

                                                                                                                                                                              

 state's use of the Department of Law study to fix the hourly rate for assistant attorneys  

                                                                                                                                                                 

general."); Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1017 (Alaska 1999)  

                                                                                                                                                                         

("It is . . . for the trial judge to determine whether too much time was spent by attorneys  

                                                                                                                                                                 

for the prevailing party or whether too many attorneys were employed." (alteration in  

                                                                                                                                                         

original) (quoting Integrated Res. Equity Corp. v. Fairbanks N. Star Borough, 799 P.2d  

                                                                                                                                                                           

295, 304 (Alaska 1990))).  

                                      



                            Thomas  also  relies  on  Continental  Insurance  Co.  v.  U.S.  Fidelity  &
  

                                                                                                                                                                               

 Guaranty Co., 552 P.2d 1122, 1128 (Alaska 1976), to argue that Rule 82 does not allow
  

                                                                                                                                                                         

                                                                                                                                                        (continued...)
  



                                                                                     - 19 -                                                                              7121
  

                                                                                               


----------------------- Page 20-----------------------

                            2.            Thomas is not exempt from an attorney's fee award.                                                   



                            Thomas next asserts that he is a public interest litigant who should be                                                                            



exempt from the application of Rule 82.  Under AS 09.60.010, parties may be exempt                                                   



from attorney's fees awards only in cases concerning "the establishment, protection, or                                                                                         



enforcement of a right under the United States Constitution or the Constitution of the                                                                                        



                                    42  

State of Alaska."                                                                                                                                                          

                                           The claim on which Thomas went to trial was based on the First  



                                                                                                                                                                                

Amendment to the United States Constitution.  But a litigant claiming the protection of  



                                                                                                                                                                 

the statute must also prove that "the action or appeal asserting the right was not frivolous,  



                                                                                                                                                                        43 

and the claimant did not have sufficient economic incentive to bring the action."                                                                                            "A  



                                                                                                                                                                 

litigant has sufficient economic incentive to bring a claim when it is brought primarily  



                                                                                                                                                                               

to advance the litigant's direct economic interest," something we generally discern by  



                                                                                                                                                                        

examining "two factors - the nature of the claim and relief sought and the direct  



                                                          44  

                                                               

economic interest at stake." 



              41(...continued)  



                                                                                                                                                                              

awards of fees for in-house counsel like the State's assistant attorneys general.  But we  

                                                                                                                                                                                

have clarified  Continental, explaining that "[n]othing in Continental was intended to  

                                                                                                                                                                       

alter our long-standing practice of awarding attorney's fees to public entities who litigate  

                                                                                                                                                                         

chiefly,  and  often  entirely,  through  in-house  counsel."                                                                Greater  Anchorage  Area  

                                                                                                                                                                       

Borough v. Sisters of Charity of House of Providence, 573 P.2d 862, 863 (Alaska 1978).  



              42            AS 09.60.010(c). "In 2003 the Alaska Legislature abrogated and replaced  

                                                                                                                                                                   

our  public  interest  litigation  exception  to  Rule  82  with"  AS  09.60.010,  which  

                                                                                                                                                                      

"encourages and protects parties bringing constitutional claims." Alaska Conservation  

                                                                                                                                         

Found. v. Pebble Ltd. P'ship, 350 P.3d 273, 280 (Alaska 2015)  

                                                                                                                         



              43            Id. at 280-81 (quoting AS 09.60.010(c)(2)).  

                                                                                    



              44            Id.  at 281-82 (holding that the legislature's change in the public interest  

                                                                                                                                                                     

litigation statute was intended to maintain the court's previous holdings regarding what  

                                                                                                                                                                           

constituted "sufficient economic incentive").  In considering the nature of the claim, we  

                                                                                                                                                                               

look to "statements made in the pleadings and proceedings about the rationale for the  

                                                                                                                                                                              

                                                                                                                                                        (continued...)  



                                                                                     - 20 -                                                                               7121
  

                                                                                               


----------------------- Page 21-----------------------

                                       Thomas's   claims,   though   varied,   were   based   on   his  loss   of   State  



employment.   His initial complaint sought "[c]ompensatory damages less mitigation at                                                                                                                                                                    



$800,000,""[u]ndeterminedfuture,                                                                      and consequentialdamages,"post-judgmentinterest,                                                                                  



"[s]tatutory   damages   as   allowed   by   specified   laws,"   and   "[u]ndetermined   special  



damages."   His amended complaint broke down his damages request into five separate                                                                                                                                                   



claims in excess of $100,000 each. On appeal he explains that the State's actions forced                                                                                                                                                    



him to file suit because he was no longer eligible for rehire by other State departments.                                                                                                                                                                        



The record strongly supports the conclusion that Thomas's primary purpose in filing suit                                                                                                                                                            



was monetary recovery, rehire rights, or both.                                                                                              Because he had "sufficient economic                                                 



incentive to bring the action" despite his constitutional claims, the superior court did not                                                                                                                                                        

err when it failed to give him the protection of AS 09.60.010.                                                                                                                      45  



V.                  CONCLUSION  



                                       The judgment of the superior court is AFFIRMED.  

                                                                                                                                                      



                    44(...continued)  



                                                                                                                                                                                                                                          

lawsuit, to whether the relief requested was equitable or legal, and the amount of money  

                                                                                                                                                                                                                                                  

in controversy."  Id. at 282 (internal citations omitted).  Our primary goal is to find "the  

                                                                                                                                                                                                                                                   

litigant's primary motivation for filing the suit." Id. (quoting O'Callaghan v. State, 920  

                                                                           

P.2d 1387, 1390 (Alaska 1996)).  



                    45                 As  in  Pebble  Limited  Partnership,  350  P.3d  at  284  n.60,  we  find  it  

                                                                                                                                                                                                                                                        

unnecessary  to  determine  the  standard  of  review  applicable  to  determinations  of  

                                                                                                                                                                                                                                                      

constitutional litigant status under AS 09.60.010, as we would affirmthe superior court's  

                                                                                                                                                                                                                                          

decision in this case regardless of the standard.  

                                                                                                               



                                                                                                                       - 21 -                                                                                                                  7121
  

                                                                                                                                     

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