Notice: This opinion is subject to correction before publication in the PACIFIC 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 

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) Supreme Court No. S-15371 

Superior Court No. 3AN-10-10515 CI 

O P I N I O N 

No. 7121 - August 26, 2016 

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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. 

ERNEST FRANK THOMAS, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF 

ENVIRONMENTAL 

CONSERVATION, DIVISION OF 

ENVIRONMENTAL HEALTH, 

FOOD SAFETY & SANITATION, 

Appellee. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

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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 

to be implemented for myself.”1 

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 

Emphasis omitted. 

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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 

long in 60[-]degree weather and he was going to do something about it.”2 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.” 

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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 

registered 40 degrees.”3 Alaska Airlines repackaged the box of fish, but after the 

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 45o Fahrenheit until processing of the seafood product begins”). 

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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 

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judgment on the law applicable to the established facts.’ ”4 “ ‘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). 

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for an abuse of discretion.”9 “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 

judgment as a matter of law.’ ”11 “[A] party seeking summary judgment has the initial 

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

material fact and that the moving party is entitled to judgment as a matter of law.”12 

“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)). 

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

material issue of fact exists.’ ”13 

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 

allegations made by Ocean Beauty and Alaska Airlines.14 “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 

the plaintiff of a constitutional right.”15 Public employees, because of their recognized 

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

pre-termination hearing.16 “At a minimum, the employee must receive oral or written 

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

opportunity to present his position.”17 

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...)
 

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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 

case.’ ”18 Thomas contends this was error because the State “did not fully explain its 

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. 

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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 

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

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. 

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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 

good faith and fair dealing.”23 “The covenant contains both objective and subjective 

components. An employer can breacheither component.”24 “[T]heobjectivecomponent 

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

person would regard as unfair.’ ”25 The subjective component requires proof that “the 

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

impermissible objective’ — that the decision ‘was actually made in bad faith.’ ”26 Proof 

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)). 

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“personal feelings of unfairness” about the employer’s motives.27 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 

he track down a constituent’s identity.28 Thomas contends that the email, drafted with 

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). 

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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 

“motivating factor” in her termination.’ ”30 “Reporting a matter of public concern to a 

public body is ‘protected activity.’ ”31 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 

expression was a substantial motivating factor for the adverse action.”32 

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)). 

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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 

First Amendment claim: his report of the director’s alleged ethics violation.33 To 

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 “nonshooting officers, a supervisor, or the City” was mooted by the jury’s verdict in favor of 

the shooting officer). 

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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 

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.”). 

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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 

irregularities have marred the integrity of the deliberation process.”36 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). 

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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 

awards in employment cases comparable to the award at issue here.39 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 

courts.”40 

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...)
 

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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...)
 

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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 

State of Alaska.”42 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, 

and the claimant did not have sufficient economic incentive to bring the action.”43 “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 

economic interest at stake.”44 

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...) 

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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. 

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