    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

ERNEST FRANK THOMAS,                         )
                                             )        Supreme Court No. S-15371
                    Appellant,               )
                                             )        Superior Court No. 3AN-10-10515 CI
            v.                               )
                                             )        OPINION
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.
I.    INTRODUCTION
             A state agency terminated the employment of a seafood inspector 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

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
                The assistant attorney general sent Thomas a confidential 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.
                On February 25 Thomas received a written reprimand from the Department
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
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 tantrum and
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

              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 Ocean Beauty’s description of the incident.
              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”).

                                           -5-                                       7121

expectations [were] regarding . . . appropriate communication.” The day after he
received this letter Thomas tendered his resignation.
       C.     Thomas’s Lawsuit
              Thomas filed a complaint against the State in September 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

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 the superior court applied the appropriate legal standard
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, 297 P.3d 158, 165 (Alaska 2013) (internal citation 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

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)).

                                            -8-                                        7121

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...)


                                          - 9 -	                                   7121

              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 him the interview would 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

             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.

                                          - 11 -                                    7121

             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 breach either component.”24 “[T]he objective component
‘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)).

                                         - 12 -	                                   7121

“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).

                                          - 13 -                                     7121

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)).

                                         - 14 -	                                   7121

              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 of Alaska’s termination of his 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

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 of a post-trial motion, Thomas submitted his own 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 some jurors falsely claimed to have seen 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
             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).

                                          - 17 -                                    7121

         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...)


                                           - 18 -	                                    7121

              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

              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...)

                                           - 20 -                                      7121

              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]ndetermined future, and consequential damages,” post-judgment interest,
“[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 affirm the superior court’s
decision in this case regardless of the standard.

                                           - 21 -                                     7121

