Rebish v. United States , 134 Fed. Cl. 308 ( 2017 )

ORIGINAL
lfn tbe Wniteb ~tates QCourt of jfeberal QClaitn5'
No. 14-1022C (Pro Se)
(Filed Under Seal: September 25, 20171 Reissued: October 24, 2017)*
) Keywords: Settlement Agreement;
JIMMI TYLER REBISH, ) Neutral Reference Provision; Breach of
) Contract; Damages; Causation; Motion to
Plaintiff, ) Compel; Summary Judgment; RCFC 56;
) Pro Se.
V. )
) FILED
THE UNITED STATES OF AMERICA, )
) OCT 2 4 2017
Defendant. )
U.S. COURT OF
``````````````~) FEDERAL CLAIMS
Jimmi Tyler Rebish, Boise, ID, pro se.
Agatha Koprowski, Trial Attorney, U.S. Department of Justice, Commercial Litigation Branch,
Civil Division, Washington, DC, for Defendant, with whom were Steven J Gillingham, Assistant
Director, Robert E. Kirschman, Jr. , Director, and Chad A. Readier, Acting Assistant Attorney
General. Nanette Gonzales, Attorney, U.S. Department of the Interior, Office of the Solicitor, Of
Counsel.
OPINION AND ORDER
KAPLAN, Judge.
Prose plaintiff Jimmi Tyler Rebish is a foimer employee of the Department of the
Interior's Bureau of Reclamation (the Bureau). In 2008, the Bureau notified him that it intended
to reassign him from its Idaho office to its Denver, Colorado office. Mr. Rebish invoked the
agency's internal grievance procedure, claiming that the reassignment was proposed in
retaliation for protected activity. The grievance process resulted in a settlement agreement which,
among other things, contained neutral reference and confidentiality provisions.
According to Mr. Rebish, the Bureau breached its obligations under these provisions
when certain Bureau employees allegedly provided third parties with negative infmmation about
him. He further claims that the Bureau has failed to respond to his requests that it investigate and
* This Opinion was originally issued under seal on September 25, 2017, and the parties were
given the opportunity to request redactions. Neither party has done so. Although Mr. Rebish filed
a "Notice Regarding Proposed Redactions," he merely "propose[d] that the government's motion
for summary judgment [be] denied" and that "this entire matter be redacted and his original
complaint reinstated." Accordingly, the Opinion is now reissued publicly in its original form.
address these alleged breaches. Mr. Rebish also complains about the Bureau's refusal to
reinstitute the agency's mediation process to address his concerns. Finally, Mr. Rebish alleges
that he has been unable to obtain employment since he left the Bureau and has suffered both
pecuniary and non-pecuniary injuries as a result of the Bureau's actions.
Presently before the Court is Mr. Rebish's motion for summary judgment and for certain
miscellaneous relief, as well as the government's motion for summary judgment. For the reasons
set forth below, Mr. Rebish's motions are DENIED and the government's motion for summary
judgment is GRANTED.
BACKGROUND 1
I. Mr. Rebish's Employment with the Department of the Interior
Prior to the fall of 2008, Mr. Rebish was employed as a civil rights program specialist in
the Bureau's Boise office. See 2d Am. Comp!. iii! 1, 3, 6, 14, Docket No. 53; see also Am. Pl.'s
Mot. for Court Interv[]ention (Pl. 's Mot.) at 3--4, Docket No. 91; Def. 's Mot. for Surnm. J. &
Resp. in Opp'n to Pl. 's Am. Mot. for Miscellaneous Relief (Def.'s Mot.) at 3, Docket No. 92. On
June 23, 2008, however, Brian Sutherland, the Acting Director of the Civil Rights Office,
advised Mr. Rebish that the Bureau was reassigning him to a duty station in Denver, Colorado,
effective August 3, 2008. Def.'s Reply in Supp. ofits Mot. for Summ. J. Suppl. App. (Def.'s
Suppl. App.) at SA21, Docket No. 94; see also Pl. 's Mot. at 3--4. Mr. Sutherland notified Mr.
Rebish that he had until "July 7, 2008, to accept or decline th[e] reassignment." Def.'s Suppl.
App. at SA21. Ifhe declined, Mr. Sutherland cautioned, he would be "subject to termination for
failure to accept a directed reassignment." Id.
Because Mr. Rebish believed that the Bureau had proposed his transfer in retaliation for
his involvement in another Bureau employee's Equal Employment Opportunity case, he invoked
the Bureau's internal administrative grievance procedure. See, e.g., Pl.'s Mot. at 3--4; see also 2d
Am. Comp!. if 6; Rebish v. Merit Sys. Prot. Bd., 601 F. App'x 944, 945 (Fed. Cir. 2015) (per
curiam). Mr. Rebish and the Bureau initially entered into an agreement to settle the grievance on
September 18, 2008. 2d Am. Comp!. if 22; Def.'s Mot. at 3. Thereafter, on October 23, 2008, Mr.
Rebish and the Bureau entered a "Superseding Negotiated Settlement Agreement and General
Release and Waiver." 2d Am. Comp!. Ex. 1 at 1. This second, superseding agreement was signed
by Mr. Rebish, his then-attorney, and two officials at the Bureau, Dean W. Teasdale and Joshua
L. Klinger. Id. at 7.
In the October 2008 agreement, Mr. Rebish withdrew his grievance and released the
Bureau from liability for "any and all formal or informal complaints and appeals, claims for
emotional pain and suffering, any and all claims known or unknown, [and] appeals, charges, or
grievances against the Agency ... having arisen on or prior to the date of th[ eJAgreement." Id.
at 1. Mr. Rebish also agreed "not to file any EEO complaints, MSPB appeals, grievances, or
1
The facts set forth in this section are based upon the materials submitted in connection with the
cross-motions for summary judgment and other documents in the record. Except as noted, the
facts are not in dispute.
2
court actions, or initiate any other administrative or judicial proceedings concerning any of the
matters raised in ... his federal court of appeals case or his EEO Complaint." Id. at 2.
In exchange, the Bureau agreed to: 1) provide Mr. Rebish with a monetary payment;
2) maintain Mr. Rebish in a paid status until October 17, 2008, after which his personnel file
would reflect that he had "be[ en] removed from the rol[l]s of the Bureau of Reclamation based
on his declination of his directed reassigmnent"; 3) place Mr. Rebish on the Department of the
Interior's "Reemployment Priority list for the local area," but not with respect to positions
specifically with the Bureau; 4) expunge Mr. Rebish's official personnel file of all material
related to his grievance; and 5) not place the agreement in Mr. Rebish's official personnel file.
Id. at 2-3.
In addition, and as pertinent to the issues Mr. Rebish raises in this case, section 4(d) of
the agreement provided that "[u]pon the effective date ofth[e] agreement, [the Bureau would]
provide [Mr. Rebish] with a neutral reference that will be given by Ms. Ellie Hasse or her
identified successor." Id. at 3. The agreement further specified that the neutral reference Ms.
Hasse would provide would only include the following information: "(1) current or past
position(s) and title(s); (2) current or past grade(s); and (3) dates of employment." Id.
In addition, section 7 of the agreement contained safeguards against the disclosure of the
terms of the agreement or its surrounding circumstances. It stated that both parties agreed "that
the terms and conditions ofth[e] Agreement ... and the facts surrounding the settlement ...
are ... confidential and are not to be discussed with anyone," except as required by law, as
discussed by Mr. Rebish with immediate family, accountants, lawyers, or taxing authorities, or as
required "for the limited purposes of implementing or enforcing the terms of the Agreement." Id.
at 4-5.
II. The Alleged Breaches
According to Mr. Rebish, in the years since he left the Bureau in 2008, he has applied for
hundreds of jobs in both the public and private sectors, but has received no job offers. 2d Am.
Comp!. iii! 9, 36-37; Pl.'s Mot. at 9. 2 Mr. Rebish did not provide Ms. Hasse's name as a
reference in connection with any of these applications. Instead, he alleges that he listed as
references "several individuals with whom he worked at the Bureau of Reclamation." 2d Am.
Comp!. if 38. He claims that those individuals included Kerry Whitford, Ben Weinischke, Keith
Kirkpatrick, Kathleen Stinson, Heidi Murphy, and Paul Rachetto. Id. 3
2
Mr. Rebish applied for a number of jobs for which he appears unqualified, including clinical
pharmacist, nurse, and associate general counsel. See Def. 's Mot. App. at A83-l l 5, Docket No.
92-1; id. at A47-48 (Mr. Rebish's deposition at 176-79) (acknowledging he lacks qualifications
for these positions).
3
Mr. Rachetto, Mr. Kirkpatrick, Ms. Stinson, and Mr. Weinischke were former coworkers of Mr.
Rebish's at the Bureau. Id. at A28, A35-37 (Mr. Rebish's deposition at 101, 129, 133-34); 2d
Am. Comp!. if 38. Ms. Whitford was also a coworker, and, according to Mr. Rebish, was at one
time the acting director of the Bureau's Civil Rights Office. Def.'s Mot. App. at A44-45 (Mr.
3
Eventually, Mr. Rebish came to believe that the Bureau had violated the terms of the
agreement "by publicly disclosing confidential information about his employment and
circumstances of separation from the Bureau." Pl.'s Mot. at 8-9; see also 2d Am. Comp!. if 41. In
addition to making generalized allegations about communications with unspecified "third
parties," Mr. Rebish has asserted that his former co-workers disclosed negative information
about him to Stacy Harshman, a career counselor whom Mr. Rebish engaged as part of his
ongoing efforts to obtain employment. See Def. 's Mot. App. at A49-50 (Mr. Rebish's deposition
at 184-87) (testifying that Ms. Harshman "caught [K]erry Whitford and Ben Weinischke
breaching the agreement"); see also Pl.'s Mot. at 10 (asserting that "Kerry Whitford, Ben
[Weinischke] and Karl Stock breached the settlement agreement by providing a negative
reference to Stacy Harshman"); Pl.'s Cross Resp. to Def.'s Mot. (Pl.'s Cross Resp.) at 9-10,
Docket No. 93. Similarly, he has claimed that in July 2013, Kerry Whitford, Brian Sutherland,
and Kathleen Stinson each provided a "negative reference" about him to the Custer Agency, a
private investigative firm that he had hired. See Def.'s Mot. App. at A50-51 (Mr. Rebish's
deposition at 189-91); see also id. at A37 (Mr. Rebish's deposition at 137); Pl.'s Cross Resp. at
9-10.
Mr. Rebish claims that he contacted various individuals both within and outside the
Bureau seeking an investigation of and redress for these alleged breaches. Pl.'s Mot. at 10-11;
see also 2d Am. Comp!. ilil 41, 49-51, 76-80, 89-90, 92, 102. According to Mr. Rebish, no one
he contacted addressed his concerns to his satisfaction. See, e.g., Pl. 's Mot. at 12.
III. Mr. Rebish's Prior Efforts to Seek Legal Redress for the Alleged Breaches
In the meantime, in the fall of2012, Mr. Rebish filed a complaint with the United States
Office of Special Counsel (OSC), alleging that the Bureau "breached the Agreement and took
adverse actions against him." 2d Am. Comp!. if 102. In March 2013, OSC concluded that there
were "no reasonable grounds to believe that the [Bureau] provided negative references to [Mr.
Rebish's] prospective employers because of [his] whistleblowing." Id. if 105. Accordingly, in
April 2013, OSC closed its inquiry into Mr. Rebish' s complaint, finding that his claim of breach
of the agreement was "not an unlawful personnel practice or action" and that it lacked
jurisdiction over his complaints with respect to job applications for positions in the private
sector. Id. il 111.
Thereafter, Mr. Rebish filed two actions with the Merit Systems Protection Board
(MSPB). Id. if 114; see also Rebish, 601 F. App'x at 945. Both actions related to the settlement
agreement; the first asserted that the Bureau provided non-neutral references "in reprisal for
whistleblowing related to an equal employment opportunity investigation," while the second
asserted that Mr. Rebish's resignation pursuant to the settlement agreement was involuntary.
Rebish, 601 F. App'x at 945. The MSPB dismissed both cases for lack of jurisdiction. Id. Mr.
Rebish then appealed to the Court of Appeals for the Federal Circuit, which affirmed the
MSPB's decisions. Id. at 945-47. The court found that Mr. Rebish "failed to make a sufficient
allegation that a disclosure he made contributed to the [Bureau's] decision to make the allegedly
Rebish's deposition at 163, 166). Ms. Murphy was a human resources officer in the Bureau's
Denver office and eventually a designated successor to Ms. Hasse. Id. at A227.
4
unfavorable employment references at issue." Id. at 946. It also concluded that he failed to
"make a non-frivolous allegation as to the involuntariness of his resignation," and noted that
"[e]ven ifthere was a breach ... it would not imply invalidity of the agreement or
involuntariness in his resignation." Id. at 94 7.
IV. This Action
On October 21, 2014, Mr. Rebish, acting prose, filed a complaint in this court. Docket
No. 1. In that complaint, he alleged that the Bureau had engaged in "six years of reprisal or
retaliation, prohibited personnel practices, confidentiality breaches and breaches of privacy act
notice." Comp!. ii 2. He further claimed that as a result of these actions he had been unable to
"regain employment," resulting in "financial hardship" as well as "pecuniary and non-pecuniary
losses involving depression, embarrassment, humiliation, loss of professional standing and
reputation, loss of enjoyment of life, adverse effect to physical health and marriage (divorce),
real estate, [and] depleted retirement accounts." Id. ii 3.
The government moved to dismiss the complaint in part for lack of jurisdiction. See
Rebish v. United States, 120 Fed. CL 184, 186 (2015). The Court granted the government's
motion in part. Id. It held that it had jurisdiction over Mr. Rebish's claim that the Bureau had
breached the agreement's neutral reference provision because that provision (as well as the
related confidentiality provision) could fairly be interpreted as contemplating money damages in
the event of a breach. Id. at 187-88. But the Court agreed with the government that it lacked
jurisdiction over Mr. Rebish's allegations of breaches of the Privacy Act, his claims ofreprisal
and retaliation, and his claims of prohibited personnel practices. Id. at 188. 4
Thereafter, on May 20, 2015, and with Mr. Rebish's permission, the Court referred his
case to the court's Pro Bono/Attorney Referral Pilot Program. Order, Docket No. 16. Mr. Rebish
apparently obtained some informal advice from a law firm through this referral, but did not
secure counsel to represent him in this litigation. See Mot. for Enlargement of Time to Conduct
Discovery at 1-2, Docket No. 19. The Court made a second referral at Mr. Rebish's request on
November 18, 2015. Order, Docket No. 27. This referral resulted in an offer of representation
and on January 12, 2016, an attorney entered an appearance on Mr. Rebish's behalf. Docket No.
28.
Mr. Rebish's attorney engaged in substantial work on his behalf in the ensuing months. In
addition to propounding interrogatories and requests for the production of documents on the
government, he assisted Mr. Rebish in responding to the government's discovery requests. He
4The Court declined to dismiss on jurisdictional grounds Mr. Rebish's claims for damages based
on "depression, embarrassment, loss of professional standing and reputation, loss of enjoyment
oflife, and adverse effects on his physical health and marriage." Rebish, 120 Fed. CL at 188 n.l.
The Court stated that while it was "very unlikely" Mr. Rebish could establish entitlement to such
non-pecuniary damages, the Court would not dismiss them because it had jurisdiction over the
underlying breach of contract claim. Id.
5
also filed an amended and then a second amended complaint on Mr. Rebish's behalf. Docket
Nos. 48, 53.
The second amended complaint is the currently operative pleading. In it, Mr. Rebish
alleges two causes of action: 1) breach of contract based upon a breach of the neutral reference
and confidentiality provisions of the settlement agreement; and 2) breach of the implied covenant
of good faith and fair dealing, based upon the Bureau's failure to disclose the agreement to its
personnel as necessary to implement its terms, and on its failure to take appropriate corrective
action to address the alleged breaches of the agreement. 2d Am. Comp!.'\['\[ 151-94.
On July 25, 2016, while discovery was ongoing, Mr. Rebish's attorney moved to
withdraw as his counsel. Docket No. 65. On August 1, 2016, the Court held a conference call on
the motion in which both Mr. Rebish and his counsel participated. See Docket Nos. 68-69. It
became apparent to the Court during this conference call that Mr. Rebish was not willing to heed
or defer to the advice of his attorney regarding the handling of the litigation. Accordingly, and
reluctantly, the Court granted counsel's motion to withdraw, effective August 30, 2016. Docket
No. 69 at 1 (observing that Mr. Rebish's attorney had asserted a "breakdown in the relationship
between himself and Mr. Rebish" and that "he and Mr. Rebish have had repeated disagreements
about both the appropriate legal theories to be pursued in the case and the facts to be presented to
the Court"); see also id. at 2 (finding that "Mr. Rebish [was] not willing to take [his attorney's]
counsel regarding the proper presentation of his claims"). Since that time, Mr. Rebish has
proceeded pro se, representing himself at his own deposition and through the completion of the
discovery process, as well as in briefing the cross-motions for summary judgment.
On November 15, 2016, the Court issued a scheduling order in which it adopted the
parties' proposed schedule for the completion of discovery by January 17, 2017, with briefing on
cross-motions for summary judgment thereafter. Docket No. 84. During discovery, on November
28, 2016, Mr. Rebish filed a "Motion for Court Ordered Depositions or Equivalent Legal Relief
& Motion to Compel Disclosure, Discovery & Ad[]missions Against Government," in which,
among other things, Mr. Rebish sought an order compelling the government to pay for any
depositions he wished to take. Docket No. 85. On December 1, 2016, the Court denied Mr.
Rebish's motion, directing his attention to the court's rules for discovery and advising him that if
he believed the government had wrongfully failed to disclose or respond to certain requests, he
could file a motion to compel specifically identifying any such instances. Order, Docket No. 86.
The Court also informed Mr. Rebish that it lacked the authority to order the government to pay
for depositions Mr. Rebish wished to take. Id. at 2.
On February 3, 2017, Mr. Rebish filed another motion seeking various relief, which he
titled a "motion for court interv[]ention to provide relief, compel discovery against
govern[me]nt, hold government in contempt of court for obstruction of justice, have sanctions
brought against government, partial or full summary judgment & injunction/restraini[n Jg order
against government." Docket No. 88. In light of the existing summary judgment briefing
schedule, the Court construed this filing as a motion for summary judgment and for
miscellaneous relief.
On February 9, 2017, Mr. Rebish filed a motion for "telephonic conference & to amend[]
Plaintiffs motion for court interv[]ention to provide relief, compel discovery against
6
government, hold government in contempt of court for obstruction of justice, have sanctions
brought against government, partial or full summary judgment & injunction/restraini[n]g order
against government." Docket No. 89. On February 16, 2017, the Court granted Mr. Rebish's
motion to amend, but denied his motion for a telephonic conference, Order, Docket No. 90, and
his amended motion was docketed that same day, Docket No. 91.
The government filed its response and cross-motion for summary judgment on March 21,
2017. Docket No. 92. Mr. Rebish filed a response and reply on April 17, 2017, Docket No. 93,
while the government filed its reply on May 3, 2017, Docket No. 94. 5
DISCUSSION
I. Summary Judgment Standards
The standards for granting summary judgment are well established. Summary judgment
may be granted where there is no genuine issue of material fact and the movant is entitled to
judgment as amatter of law. Rule 56(a) of the Rules of the Court of Federal Claims (RCFC);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material ifit "might affect
the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. An issue is
genuine if it "may reasonably be resolved in favor of either party." Id. at 250.
"The moving party bears the burden of establishing the absence of any genuine issue of
material fact," and all significant doubts regarding factual issues must be resolved in favor of the
party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387,
1390 (Fed. Cir. 1987). "[T]he party opposing summary judgment must show an evidentiary
conflict on the record; mere denials or conclusory statements are not sufficient." Id. at 1390-91.
"[E]ntry of summary judgment is appropriate against a [party] 'who fails to make a showing
sufficient to establish the existence of an essential element to [its] case, and on which [it] will
bear the burden of proof at trial."' Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833
F.3d 1356, 1362-63 (Fed. Cir. 2016) (quoting Celotex Com. v. Catrett, 477 U.S. 317, 322
(1986)) (third and fourth alterations in original).
II. The Parties' Cross-Motions for Summary Judgment
"A settlement agreement is a contract" whose interpretation is a question of law. Harris v.
Dep't of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). To prevail on a breach of
contract claim, a party must establish: 1) a valid contract between the parties; 2) an obligation or
duty arising out of the contract; 3) a breach of that duty; and 4) damages caused by the breach.
San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989).
Further, as the court of appeals has observed, "[e]very contract imposes upon each party a duty
of good faith and fair dealing in its performance and enforcement." Metcalf Constr. Co. v.
5
On August 14, 2017, Mr. Rebish filed a motion "demanding/requesting resolution, settlement,
expedited processing and status." Docket No. 95. In light of this opinion, Mr. Rebish's motion is
DENIED as moot.
7
United States, 742 F.3d 984, 990 (Fed. Cir. 2014) (qnoting Restatement (Second) of Contracts
("Restatement")§ 205 (Am. Law Inst. 1981)).
In this case, the government acknowledges the existence of a valid contract and agrees
that certain obligations and duties arise out of that contract. However, it defines some of those
duties differently than does Mr. Rebish, and argues that Mr. Rebish has presented no evidence
that the government has, in fact, breached any of its duties under the contract. Thus, according to
the government, even ifthe Court assumes that Mr. Rebish's co-workers provided negative
information about him to third parties, it would not establish that the Bureau breached its
obligations under the agreement's neutral reference provision. Further, the government argues
that Mr. Rebish has introduced no evidence to support his allegations that the Bureau breached
the agreement's confidentiality provision. And, it argues that none of Mr. Rebish's allegations
breach the agreement's implied duty of good faith and fair dealing.
Finally, and in any event, the government asserts that even if Mr. Rebish could
demonstrate a breach of some duty under the contract, the government would remain entitled to
summary judgment because Mr. Rebish failed to produce any evidence linking such a breach to
the injury he alleges: his inability to secure employment.
For the reasons set forth below, the Court agrees with the government. It therefore
concludes that the government is entitled to summary judgment as to all of Mr. Rebish's claims.
Finally, to the extent that what Mr. Rebish seeks here is reinstatement and a reopening of the
agency grievance procedure, this Court lacks authority to grant such relief.
A. Breach of Contract
1. Neutral Reference Provision
As pertinent to the parties' dispute, the settlement agreement states that "the Bureau of
Reclamation agrees to ... provide Grievant with a neutral reference that will be given by Ms.
Ellie Hasse or her identified successor." 2d Am. Comp!. Ex. 1 at 2-3. It also provides that "Ms.
Hasse will only provide the following information in regard to any reference check: (1) current
or past position(s) and title(s); (2) current or past grade(s); and (3) dates of employment." Id. at
3.
Mr. Rebish claims that this provision required the Bureau to affirmatively prevent
employees other than Ms. Hasse or her identified successor from providing references
concerning Mr. Rebish, even where, as in this case, Mr. Rebish directed third parties to other
Bureau employees for that purpose. Further, Mr. Rebish argues that-although he had no
obligation to direct prospective employers to Ms. Hasse (and in fact was free to direct them to
others)-the agreement obligated the Bureau to put mechanisms in place to prevent other Bureau
employees from providing a reference concerning Mr. Rebish.
The government, on the other hand, contends that the neutrality provision does not
require the Bureau to actively prevent Bureau employees whom Mr. Rebish has identified as
references from providing such references. Instead, according to the government, the provision
obligates the Bureau only to make Ms. Hasse or her designated successor available to provide a
neutral reference on the agency's behalf, should a prospective employer seek the Bureau's views
8
about Mr. Rebish's tenure. See Def.'s Mot. at 12-13. According to the government, Mr. Rebish
chose not to avail himself of his contractual right; instead, he directed third parties to his former
co-workers at the Bureau to provide references in their personal capacities. The Court agrees
with the government.
The interpretation of a contract begins with its plain language. Jowett, Inc. v. United
States, 234 F.3d 1365, 1368 (Fed. Cir. 2000) (citing McAbee Constr., Inc. v. United States, 97
F.3d 1431, 1435 (Fed. Cir. 1996)). Where the language is unambiguous, it must be given its plain
and ordinary meaning. McAbee Constr., Inc., 97 F.3d at 1435 (citing Alaska Lumber & Pulp Co.
v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993)).
Here, the plain language of the neutral reference provision imposes on the Bureau only a
single obligation: to "provide Grievant with a neutral reference that will be given by Ms. Ellie
Hasse or her identified successor." 2d Am. Comp!. Ex. 1 at 3. Unlike other agreements
containing neutral reference or similar provisions, the agreement between Mr. Rebish and the
Bureau includes no language that obligates the Bureau to ensure that its employees generally
refer inquiries from third parties to Ms. Hasse or her designee. See America v. Preston, 468 F.
Supp. 2d 118, 123 (D.D.C. 2006) (settlement agreement stating that "all inquiries from
prospective employers received by OFA shall be referred to and handled by the Agency's Office
of Human Resources" (emphasis omitted)). Nor does it include language prohibiting Bureau
employees generally from providing references in their personal capacities and not on behalf of
the Bureau. See Thomas v. Dep't ofHous. & Urban Dev., 124 F.3d 1439, 1440 (Fed. Cir. 1997)
(settlement agreement providing that "no information will be provided by any [HUD] employee
or official to any other person concerning this agreement or the reasons for [the employee's]
departure from HUD, or other adverse action, performance rating, or the terms of the settlement"
(first alteration in original) (emphasis added)).
Indeed, it appears that Mr. Rebish himself did not view the agreement as precluding
Bureau employees generally from responding to requests for references, or as requiring them to
direct inquiries to Ms. Hasse. Thus, he admits that he specifically directed third parties to other
individuals at the Bureau for purposes of securing what he expected would be positive references
provided in their personal capacities. See, e.g., Def. 's Mot. App. at A34 (Mr. Rebish's deposition
at 122-23). His argument therefore seems to be that the neutrality provision obligated the Bureau
to take steps to prevent its employees from giving negative references while leaving them free to
provide positive ones, and coordinately that unless Bureau employees intended to give him a
positive reference, they were required to redirect those third parties to Ms. Hasse for a neutral
reference. See id.; see also id. at A43-44 (Mr. Rebish's deposition at 161-62). This is clearly not
a workable arrangement, much less a reasonable reading of the language of the neutral reference
prov1s10n.
Further, it is well-established that a contract should be read as a whole such that all of its
provisions have meaning and make sense. See Jowett, Inc., 234 F.3d at 1368. In this case, the
government's reading of the Bureau's obligations is consistent with the agreement as a whole,
while Mr. Rebish's interpretation is not. Thus, only the government's interpretation of the neutral
reference provision is consistent with the agreement's confidentiality provision, which is
intended to limit the parties to whom the terms of the settlement and its surrounding
circumstances may be disclosed. If the Bureau was obligated to prevent any and all of its
9
employees from providing third parties with information about Mr. Rebish's tenure at the
agency, then it would necessarily be required to reveal to all of its employees one of the terms of
the settlement-the neutrality provision. And doing so would suggest to all employees that Mr.
Rebish left the agency under a cloud, an implication that actually undermines the ostensible
purpose of the neutral reference requirement. Cf. Holmes v. Dep't of Veterans Affairs, 58 F.3d
628, 634 (Fed. Cir. 1995) (Plager, J., concurring) (observing that a neutral employment reference
is problematic because it sends a "subtle signal ... that there is some undisclosed problem").
Finally, the government's interpretation of the neutral reference provision better
addresses the Federal Circuit's often-expressed concern about the problematic character of such
provisions, which has led it to admonish that such provisions should be construed "strictly
according to their terms." Godwin v. Dep't of Def., 228 F.3d 1332, 1336, 1338 (Fed. Cir. 2000);
Pagan v. Dep't of Veterans Affairs, 170 F.3d 1368, 1372 (Fed. Cir. 1999); Thomas, 124 F.3d at
1442; Holmes, 58 F.3d at 633 n.5. As the court of appeals has noted, it may be "virtually
impossible for agencies to ensure that settlement agreements [that] require[ e] the whitewashing
of an employee's disciplinary record[] can be performed to the letter," because "[e]ven if some
agency officials are willing" to provide a neutral reference, "there is always the risk that another
person who knows the facts will not remain silent."6 Thomas, 124 F.3d at 1442.
To be clear, the Court recognizes that-irrespective of the concerns the Federal Circuit
has outlined-the government will not be relieved of express provisions that require employees
to channel reference requests to a single individual and/or express prohibitions against other
employees providing references to third parties. See Greenhill, 92 Fed. Cl. at 393 (observing that
"[t]o the extent that the Government chooses to enter into such an agreement ... the court will
not 'condone what would be essentially an empty promise made by the government' by finding
an agency not responsible for a 'leak ... directly from a responsible official inside the agency in
response to an inevitable inquiry from a potential employer'" (quoting Thomas, 124 F.3d at
1442)). But absent express language and given the Federal Circuit's admonitions, the Court is
reluctant to find that the government has made the difficult-if-not-impossible-to-honor promises
Mr. Rebish's interpretation of the agreement would require. It is particularly reluctant to do so
where, as here, the language of the agreement is more reasonably read to impose a narrower
obligation.
For these reasons, the Court rejects Mr. Rebish's interpretation of the neutral reference
provision. It finds that the provision obligated the Bureau to provide him with a neutral reference
through Ms. Hasse or her identified successor, but did not impose an obligation on the Bureau to
affirmatively prevent its employees from providing references (whether positive, negative, or
neutral) in their personal capacities. Mr. Rebish has failed to come forward with any evidence
demonstrating a breach of the neutral reference provision, properly construed. Accordingly, the
government is entitled to judgment as a matter of law regarding this claim.
6 The existence of this risk means that such a provision may also mislead an employee '"into
believing he is getting something he is not,' namely the absence of any indications of problems
in his prior employment." Greenhill v. United States, 92 Fed. Cl. 385, 392-93 (2010) (quoting
Holmes, 58 F.3d at 634 (Plager, J., concurring)).
10
2. Confidentiality Provision
As described above, in section 7 of the agreement, the parties agreed that the terms of the
agreement and the facts surrounding it would be kept confidential and would not be disclosed
except under limited circumstances. Mr. Rebish has asserted that certain co-workers allegedly
disclosed information required to be kept confidential to third parties in violation of this
provision. The government, however, contends that Mr. Rebish "has not identified a single piece
of evidence to demonstrate that [the Bureau] disclosed confidential information to anyone," and
thus that it is entitled to summary judgment on this claim. See Def.' s Mot. at 15.
"In response to a summary judgment motion" a plaintiff cannot rely upon "mere
allegations, but must set forth by affidavit or other evidence specific facts" supporting his claims.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (quotations omitted). As a prose plaintiff,
Mr. Rebish is given greater leeway, and the Court construes his pleadings and motion papers
liberally. But "a prose party's 'bald assertion,' completely unsupported by evidence, is not
sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429
(S.D.N.Y. 1995) (Sotomayor, J.) (quoting Carey v. Crescenzi, 923 F.2d 13, 21 (2d Cir. 1991));
see also Veloz v. New York, 339 F. Supp. 2d 505, 513 (S.D.N.Y. 2004), affd, 178 F. App'x 39(2d Cir. 2006) (prose status does not relieve party of the burden of supplying the evidence that is
required to defeat a summary judgment motion).
Based on the record before it, the Court concludes that Mr. Rebish's claim cannot survive
the government's summary judgment motion because it is based almost entirely on his own
speculation. Thus, Mr. Rebish did not depose the co-workers alleged to have made the improper
disclosures or provide the Court with declarations from the third parties he claims received such
disclosures. Indeed, he did not supply any evidence at all in opposing the government's motion
for summary judgment.
Because Mr. Rebish is a pro se plaintiff, the Court has also taken into consideration parts
of the record that Mr. Rebish did not submit in opposition to the government's motion. Thus,
attached to Mr. Rebish's original prose complaint are what appear to be notes on Custer Agency
letterhead that memorialize a phone call between a Wendy Alexander and Kerry Whitford. 2d
Attach. to Comp!. The notes, however, do not provide evidence of a disclosure of the "terms and
conditions ofth[e] Agreement ... and the facts surrounding the settlement." In fact, the notes
suggest that Ms. Whitford may have been unaware of the existence of the settlement agreement.
See id. (presumably relying upon conversation with Ms. Whitford, and noting that "at some point
the job was located to Denver and [Mr. Rebish] had a choice to move" and that "[s]he felt [Mr.
Rebish] left due to the fact that the job was not well defined and that he felt held back").
Mr. Rebish also attached to his pro se complaint handwritten notations on questionnaires
that apparently were used as guides in conducting phone calls with Ben Weinischke, Kerry
Whitford, and Karl Stock. 3d Attach. to Comp!. In interrogatory responses, Mr. Rebish stated
that he believed these documents were notes of conversations between Bureau employees and
the Custer Agency and Ms. Harshman in which certain Bureau employees breached the
confidentiality provision in some unspecified way. Def.'s Mot. App. at Al40-44. But the notes
themselves are unsigned and unlabeled, and the notations consist of cryptic sentence fragments.
The Court does not consider this "evidence" competent to support Mr. Rebish's assertions that
11
Mr. Weinischke, Ms. Whitford, or Mr. Stock made unauthorized disclosures of the terms or
circumstances of the settlement agreement.
In short, Mr. Rebish's bald assertions that Bureau employees disclosed the terms or the
circumstances of his settlement agreement to third parties are not supported by any specific facts
in the record. Accordingly, the government is entitled to judgment as a matter of law as to Mr.
Rebish's claim that the Bureau violated section 7 of the agreement.
3. Duty of Good Faith and Fair Dealing
As noted above, "[e ]very contract imposes upon each party a duty of good faith and fair
dealing in its performance and enforcement." MetcalfConstr. Co., 742 F.3d at 990 (quoting
Restatement§ 205); see also id. at 991 (observing that "[t]he covenant of good faith and fair
dealing ... imposes obligations on both contracting parties that include the duty not to interfere
with the other party's performance and not to act so as to destroy the reasonable expectations of
the other party regarding the fruits of the contract" (quoting Centex Coro. v. United States, 395
F.3d 1283, 1304 (Fed. Cir. 2005)) (emphases and omission in original)). "Failure to fulfill that
duty constitutes a breach of contract, as does failure to fulfill a duty 'imposed by a promise stated
in the agreement."' Id. at 990 (quoting Restatement§ 235). These principles apply to contracts
with the federal government. Id. (citing Precision Pine & Timber. Inc. v. United States, 596 F.3d
817, 828 (Fed. Cir. 2010) and Malone v. United States, 849 F.2d 1441, 1445-46 (Fed. Cir.
1988)).
"What is promised or disclaimed in a contract helps define what constitutes 'lack of
diligence and interference with or failure to cooperate in the other party's performance.'" Id. at
991 (quoting Malone, 849 F.2d at 1445). Thus, the "implied duty of good faith and fair dealing
cannot expand a party's contractual duties beyond those in the express contract or create duties
inconsistent with the contract's provisions." Id. (quoting Precision Pine & Timber, Inc., 596 F.3d
at 831).
Mr. Rebish argues that the Bureau violated its duty of good faith and fair dealing in
several respects. First, he contends that the Bureau had a good faith obligation to notify its
employees of the neutrality provision in order to ensure their compliance with it. As the Co mi
has concluded, however, the neutrality provision does not obligate employees of the Bureau
generally not to respond to reference requests. It would therefore not be reasonable or
appropriate, particularly in light of the confidentiality provision, to infer a good faith duty on the
part of the Bureau to inform all its employees of the neutral reference provision's requirements.
Mr. Rebish's second argument based on the duty of good faith and fair dealing is that the
Bureau was implicitly bound to investigate and address his allegations of breach. He grounds this
duty in the government's "obligation under [section] 7 to implement and enforce the
Agreement." 2d Am. Comp!.~ 182. But Mr. Rebish has taken the terms "implement and
enforce" out of context: as discussed, those terms are part of the agreement's confidentiality
provision, which allows the government to disclose the terms of the agreement "for the limited
12
purposes of implementing or enforcing" them. See id. Ex. 1 at 7. That section thus cannot be
read to imply a freestanding duty to investigate and resolve alleged breaches. 7
For these reasons, the Court rejects Mr. Rebish's argument that the Bureau had a good
faith obligation to put in place mechanisms to ensure that employees generally did not respond to
requests for references about Mr. Rebish. It also finds that the Bureau did not have a good faith
obligation to investigate Mr. Rebish's complaints concerning the Bureau's compliance with the
agreement. Mr. Rebish's claim based on the duty of good faith and fair dealing thus lacks merit.
* * * * * * * * * * * * *
In summary, for the reasons discussed above, Mr. Rebish has not demonstrated an
essential element of his breach-of-contract claims-the breach of an obligation arising out of the
agreement-and the government is therefore entitled to judgment as a matter oflaw as to Counts
I and II of the complaint.
B. Causation of Damages
In any event, the government is entitled to summary judgment as to all of Mr. Rebish's
contract claims because he has failed to produce any evidence that his inability to secure
employment was causally related to any disclosure of information by the Bureau to a prospective
employer. In fact, he does not explicitly allege that he was excluded from consideration for any
specific position as a result of a negative reference from a Bureau employee. Instead he alleges
more generally and in conclusory fashion (based upon "information and belief') that the alleged
disclosures of information about him to unspecified third parties "negatively impacted,"
"adversely affected," or "compromised" his ability to secure employment in the federal, public,
and private sectors. 2d Am. Comp!. iii! 11, 43-44, 70, 104, 130, 144, 146-47, 169, 170, 193.
To make the non-breaching party whole, it is entitled to recover its reasonably
foreseeable expectation damages for breach of contract, but only where such damages "are
caused by the breach of the promisor." Bluebonnet Sav. Bank, F.S.B. v. United States, 266 FJd
1348, 1355 (Fed. Cir. 2001) (citing Restatement§§ 347, 351, 352). To meet the causation
requirement, a plaintiff must show "that the damages would not have occurred but for the
breach." Fifth Third Bank v. United States, 518 F.3d 1368, 1374 (Fed. Cir. 2008). Alternatively,
the Federal Circuit has held that the court may use a "substantial factor" test in determining
causation with respect to damages. See Citizens Fed. Bank v. United States, 474 F.3d 1314, 1318
(Fed. Cir. 2007). The choice of which test to use is within the trial court's discretion, and
"depends upon the facts of the particular case." Id.As noted, in his complaint, Mr. Rebish alleges that the Bureau's breaches of the neutral
reference and confidentiality provisions and of its implied obligations have affected his ability to
secure a new job, resulting in "significant personal and financial hardships." See, e.g., 2d Am.
7
The Court does not address the question of whether there is a genuine issue of material fact as
to whether-assuming the Bureau had a duty to investigate Mr. Rebish' s complaints-it failed to
discharge that obligation.
13
Comp!.`` 169-73; see also Pl.'s Mot. at 53-54; Tr. of Proceedings at 15, Rebish v. United
States, No. 14-1022C (Fed. Cl. Oct. 19, 2015), Docket No. 43 ("THE COURT: Mr. Rebish, am I
correct that your argument in the case is that the Bureau ... gave you bad references, and that's
why you haven't been able to get a job? ... MR. REBISH: Yes. Yeah."). Thus, to establish the
requisite causal link between the breaches and the alleged financial injuries, Mr. Rebish would
ultimately be required to prove: 1) that Bureau employees provided non-neutral references to
prospective employers; and 2) that those non-neutral references were at least a substantial factor
in the employers' decisions not to hire Mr. Rebish. Mr. Rebish, however, has failed to produce
any evidence that the Bureau gave any prospective employer a non-neutral reference, much less
that any such reference played a substantial part (indeed, any part) in his failure to secure any of
the hundreds of jobs for which he alleges he applied. In fact, in his responses to the
government's inte1rngatories, Mr. Rebish stated that he "lack[ed] information about the specific
entity or entities that received a less than neutral reference" about him. Def. 's Mot. App. at Al45
(internal quotation and alteration omitted). 8
Notwithstanding his responses to interrogatories, Mr. Rebish asserts that the Bureau
provided "information about Mr. Rebish that was deemed confidential under the Agreement" to
the Bureau of Land Management after it had interviewed him. Pl.'s Mot. at 24. According to Mr.
Rebish, this information "influenced the agency's consideration of Mr. Rebish" and led to him
not receiving an offer of employment. Id. But, as noted, Mr. Rebish's assertion is not evidence.
See Precision Pine & Timber, Inc. v. United States, 62 Fed. Cl. 635, 646 (2004) ("Unsupported
assertions or conclusory allegations are insufficient to withstand summary judgment." (citing
SRI Int'! v. Matsushita Elec. Com., 775 F.2d 1107, 1116 (Fed. Cir. 1985))); see also Yufa v.
TSI, Inc., 652 F. App'x 939, 946, 948 (Fed. Cir. 2016); On-Line Tech. v. Bodenseewerk Perkin-
Elmer, 386 F.3d 1133, 1141-42, 1144 (Fed. Cir. 2004); Jechura v. United States, 9 Cl. Ct. 753,
754 (1986). Further, the government has supplied a declaration from Carol Salo, an employee of
the Bureau of Land Management who was involved in the hiring process for the position for
which Mr. Rebish applied. See Def.'s Mot. App. at A200. In that declaration, she states that Mr.
Rebish's references were never contacted as part of the application process. Id. at A200-0l.
Similarly, in his reply brief, Mr. Rebish stated that Brian Sutherland provided a negative
reference about him to the Small Business Administration. PL' s Cross Resp. at 9. But Mr.
Rebish's claim is based on a mischaracterization of an email from Mr. Sutherland to another
Bureau employee, Dean W. Teasdale. In the December 23, 2011 email, which the government
produced in discovery and has introduced into the record, Mr. Sutherland states that he received
a call about Mr. Rebish in 2008 from someone at the Small Business Administration in Boise.
Def.'s Suppl. App. at SAL In the email, Mr. Sutherland stated that he "informed the call[ er] that
[he] would have to transfer the call to the HR Manager for response." Id. He further stated that
he "provided [the caller] with Ellie [Hasse]'s name and number and then transferred him to her."
Id.8
Even assuming that Mr. Rebish had produced competent evidence that Bureau employees
provided negative information about him to Ms. Harshman or to the Custer Agency, neither was
a prospective employer. Pl.'s Mot. at 10; Def. 's Mot. App. at A37-38 (Mr. Rebish's deposition
at 137-38); id. at A49-51 (Mr. Rebish's deposition at 184-91); id. at Al95-96.
14
In short, other than this one instance, Mr. Rebish has failed to produce any evidence that
any employer to whom he applied for a job even requested a reference about him from the
Bureau. Nor has he produced any evidence that he was eliminated from consideration for a
position as a result of such a reference. Accordingly, even assuming the actions about which he
complains constituted breaches of the agreement, Mr. Rebish has failed to present any evidence
of a causal link between any of those breaches and the financial injury he has alleged. For this
reason as well, and because he would bear the burden of establishing causation at trial, the
government is entitled to summary judgment as to his breach of contract claims. 9
C. Mr. Rebish's Request for Reinstatement and Reopening of the Grievance
Process
Finally, the Court notes that one of Mr. Rebish's primary goals in this litigation appears
to be securing an order from the Court setting aside the agreement, requiring the Bureau to
reinstate him, and directing the Bureau to reopen the administrative grievance process. See Pl.'s
Mot. at 16 (observing that he "does not need the courts or DOJ to enforce his settlement
agreement and receive damages and or resolution," but that he "has rights and recourse through
the Department of the Interior[']s CADR office"); id. at 7, 24 (alleging that he "suffered adverse
federal employment determinations" and that his administrative grievance proceeding "should be
reinstated for processing from the date it ceased"). As Mr. Rebish testified during his deposition,
9
Further, to the extent Mr. Rebish alleges that the Bureau's purported breaches caused him non-
pecuniary injuries such as humiliation, depression, or embarrassment, it is a general rule of
contract law that "no damages will be awarded for the mental distress or emotional trauma that
may be caused by a breach of contract." Bohac v. Dep't of Agric., 239 F.3d 1334, 1340 (Fed.
Cir. 2001) (quoting John D. Calamari & Joseph M. Perillo, The Law of Contracts § 14.5(b) at
549 (4th ed. 1998)). Recovery is generally limited to pecuniary damages because contract
damages are based on foreseeability at the time of contract execution. See Rebish, 120 Fed. Cl. at
188 n.1 (citing Bohac, 239 F.3d at 1340). Damages based on mental distress or emotional trauma
are limited to narrow contexts in which such distress or trauma is reasonably foreseeable in the
event of a breach, such as with "contracts of carriers and innkeepers with passengers and guests,
contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of
messages concerning death." Bohac, 239 F.3d at 1340 (citing Restatement§ 353 cmt. a and 5
Arthur L. Corbin, Corbin on Contracts§ 1076 (1964)). "Moreover, with the limited exception of
contracts for the delivery of messages concerning death, damages for mental suffering are
usually refused absent wanton and willful misconduct." Id. Emotional distress is generally not a
reasonably foreseeable result of the breach of an employment settlement agreement. See id. at
1341 (observing that only traditional contract damages are recoverable for whistleblowing claims
and claims for wrongful discharge); see also Jensen v. W. Jordan City. No. 2:12-CV-736-DAK,
2016 WL 4256946, at *9 (D. Utah Aug. 11, 2016) (finding emotional distress damages not
"explicitly within the contemplation of the parties at the time [of] the Settlement Agreement");
Dobyns v. United States, 118 Fed. Cl. 289, 324-25 (2014) (observing that the Restatement
supports recovery for emotional disturbance where "the contract's express intent is either to
enhance or to protect a plaintiff's mental state" (internal quotation omitted)); Mastrolia v. United
States, 91 Fed. Cl. 369, 381 (2010) (dismissing claim for damages for emotional distress from
breach of employment settlement agreement).
15
it has been his understanding that ifhe could prove a breach of contract, then the Bureau would
"go back to the date [the internal proceedings] ceased in 2008 and reopen [them] for processing,
investigate, mitigate or whatever is going on, resolve and provide relief." Def. 's Mot. App. at
A53-54 (Mr. Rebish's deposition at 201-02); see also id. at A68 (Mr. Rebish's deposition at
261) (stating his belief that because this Court "granted [him] jurisdiction under the breaches,"
the "800 or 1,000 jobs [he] applied to" "drive[] the case," but that, in his view, the case was
"never about [them]"); id. at A69 (Mr. Rebish's deposition at 262) (explaining his view that
because of the alleged breaches, he "can ... go ... back to the beginning ... [and] have [the
Bureau] reopen [his] original administrative grievance clear back to the date [he] got
reassigned," and that the Bureau "should actually have to put [him] back in [his] old job at
Reclamation and not make [him] move to Denver").
As this Court held in ruling on the government's motion to dismiss, however, it does not
have jurisdiction to review the merits of the reassignment action that served as the basis for the
grievance that Mr. Rebish filed and that the parties subsequently settled. Rebish, 120 Fed. CL at
188 (citing Worthington v. United States, 168 F.3d 24, 26-27 (Fed. Cir. 1999)). Further, even if
the Court agreed with Mr. Rebish that the Bureau had breached the agreement, it would not be
able to grant him the relief in which he appears to be primarily interested-an order compelling
the Bureau to reopen his grievance and negotiate a new settlement agreement-because this
Court lacks jurisdiction to order equitable relief except as ancillary to monetary relief. See
Outlaw v. United States, 116 Fed. CL 656, 662 (2014); Taylor v. United States, 73 Fed. CL 532,
545-46 & n.25 (2006) (noting that the court "cannot award an equitable remedy in the absence
ofa viable claim for money damages" and that a request "that the court reinstate [a] Title VII
discrimination claim[]" is "relief ... beyond the court's jurisdiction"). In short, irrespective of
whether the Bureau did or did not breach the agreement, this Court lacks the authority to grant
Mr. Rebish the equitable relief he seeks.
* * * * * * * * * * * * *
As set out above, there is no genuine dispute of material fact as to the claims asserted in
the second amended complaint, and the government has thus demonstrated that it is entitled to
judgment as a matter oflaw on those claims. Therefore, Mr. Rebish's motion for summary
judgment is DENIED and the government's motion for summary judgment is GRANTED.
III. Mr. Rebish's Motion for Miscellaneous Relief
In his motion papers, Mr. Rebish has requested relief related to the discovery process.
Specifically, he asks the Court to "compel discovery against the government, hold the
government in contempt of court for obstructing justice, [and] have sanctions brought against the
government." PL's Mot. at 1. Mr. Rebish further states that the government should "provide what
Mr. Rebish asked for in interrogatories, production of documents and respond appropriately to
requests for admissions," and claims that "[t]he government has something that they are not
giving Mr. Rebish." Id. at 18; see also PL 's Cross Resp. at 15 (asserting that he "has sent
numerous Interrogatories, Requests for Production of documents and Request for admissions,"
but "is extremely concerned about what ... the Government ... ha[ s] not provided" (emphasis
omitted)).
16
As the Court previously informed Mr. Rebish, a motion to compel must "specifically
identifTy] which information he alleges the government has wrongfully failed to disclose." Order
at 2, Docket No. 86. Mr. Rebish does not identify the specific requests for admissions or
interrogatories the government has improperly refused to answer or what documents it has
wrongly refused to furnish to him. He also did not include with his motion the certification
required by RCFC 37, stating that he "has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort to obtain it without court
action." RCFC 37(a)(l ). And though his reply brief contains a sentence that mimics the language
of the rule, "[g]ood faith cannot be shown merely through perfunctory parroting of statutory
language" but "mandates a genuine attempt to resolve the discovery dispute." Anaheim Gardens
v. United States, No. 93-655C, 2008 WL 2043242, at *3 (Fed. Cl. Feb. 29, 2008) (quotation
omitted). In this case, Mr. Rebish's briefs provide no basis upon which the Court can ascertain
precisely what the discovery dispute is, much less the steps that he has taken to attempt to
resolve it with the government. Accordingly, Mr. Rebish's motion for miscellaneous discovery
relief is DENIED.
Mr. Rebish's additional requests for sanctions fail for similar reasons. RCFC 37(b)
provides for sanctions when a party fails to comply with a court order regarding discovery. The
Court has not issued any discovery orders in this case and therefore RCFC 37(b) is inapplicable.
Rules 37(c) and (d) relate to sanctions for failing to appropriately respond to certain discovery
requests, but Mr. Rebish has not specifically identified any alleged failings. Rather, he merely
makes conclusory assertions that the government has not satisfied his discovery demands. Such
assertions are not sufficient to impose sanctions under RCFC 37. Further, to the extent the
government responded to Mr. Rebish's discovery requests with objections, with which Mr.
Rebish now takes issue, sanctions are not available nnder RCFC 37(d). Badalamenti v.
Dunham's, Inc., 896 F.2d 1359, 1362 (Fed. Cir. 1990). Accordingly, for these reasons, Mr.
Rebish's miscellaneous requests for relief are DENIED.
CONCLUSION
For the reasons set forth above, Mr. Rebish's motion for summary judgment is DENIED,
as are all his other pending motions. The government's motion for summary judgment is
GRANTED. The Clerk shall enter judgment accordingly. Each side shall bear its own costs.
IT IS SO ORDERED,
ELAINE D. KAPLAN
Judge
17