Rebish v. United States, 134 Fed. Cl. 308

Background

Jimmi Tyler Rebish, a former Bureau of Reclamation employee, entered a superseding settlement agreement with the Bureau in October 2008 resolving an internal grievance concerning a directed reassignment; the agreement included a neutral-reference clause (references to be provided by Ellie Hasse or successor and limited to positions/grades/dates) and a confidentiality clause limiting disclosure of the agreement and surrounding facts.
Rebish alleged post‑separation that various Bureau employees provided negative or non‑neutral information about him to third parties (e.g., a career counselor and a private investigative firm), harming his ability to obtain employment after he left the agency.
Rebish exhausted some administrative avenues (OSC and MSPB) without relief; the Court of Federal Claims retained jurisdiction over the contract claims for neutral reference and confidentiality breaches but dismissed a variety of other personnel/Privacy Act claims.
The operative pleading asserted breach of the neutral reference and confidentiality provisions and breach of the implied covenant of good faith and fair dealing; Rebish sought damages and also requested reopening of the original grievance and reinstatement.
The government moved for summary judgment arguing (inter alia) the neutral‑reference clause only required the Bureau to make Hasse (or successor) available to provide a neutral reference, that Rebish produced no competent evidence of confidentiality breaches, and that Rebish offered no proof linking any alleged disclosure to his failure to obtain employment.
The Court denied Rebish’s summary‑judgment motion, granted the government’s, held (1) the neutral‑reference clause did not impose an affirmative duty to prevent other employees from giving personal references, (2) Rebish produced no competent evidence of confidentiality breaches, (3) the implied‑duty claim failed, and (4) Rebish failed to prove causation of his alleged employment damages; requested equitable relief (reinstatement/reopening grievance) was foreclosed for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of neutral‑reference provision	The clause required the Bureau to prevent other employees from giving references and to channel inquiries to Hasse so only neutral references would be given.	The clause only obligated the Bureau to provide Hasse (or successor) to give a neutral reference on the agency's behalf if contacted; it did not bar employees from giving personal references.	The Court adopted the government's narrower reading: Bureau only had to make Hasse available; no affirmative duty to stop employees from giving personal references.
Breach of confidentiality clause	Co‑workers disclosed terms/circumstances of the settlement to third parties (career counselor, Custer Agency), violating confidentiality.	Plaintiff provided no competent evidence of disclosure by the Bureau; alleged notes are unsigned/ambiguous and insufficient to defeat summary judgment.	Court held Rebish failed to produce admissible evidence of confidentiality breaches; government entitled to summary judgment on this claim.
Implied covenant of good faith and fair dealing	Bureau had an obligation to (a) notify employees of the neutral‑reference restriction and (b) investigate and remedy alleged breaches.	Any implied duties cannot expand or contradict the express contract terms; confidentiality limits disclosure and does not create a freestanding investigatory duty.	Court rejected implied‑duty claims: no duty to broadly notify employees or to investigate beyond the contract terms.
Damages / Causation	Alleged inability to secure employment and resulting pecuniary and non‑pecuniary harms were caused by the Bureau's breaches.	Rebish presented no evidence linking any specific employer’s decision to a Bureau reference; lack of proof as to who received non‑neutral references and whether such references impacted hiring.	Court held Rebish failed to establish causation (but‑for or substantial‑factor) between any breach and his alleged lost employment; summary judgment for government.

Key Cases Cited

Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
Celotex Corp. v. Catrett, 477 U.S. 317 (party opposing summary judgment must produce evidence)
San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957 (elements of breach of contract)
Metcalf Constr. Co. v. United States, 742 F.3d 984 (implied covenant of good faith and fair dealing in government contracts)
Godwin v. Dep't of Def., 228 F.3d 1332 (neutral‑reference provisions construed strictly)
Thomas v. Dep't of Housing & Urban Dev., 124 F.3d 1439 (limits and risks of neutral‑reference clauses)
Holmes v. Dep't of Veterans Affairs, 58 F.3d 628 (concerns about neutral references and their implications)
Bohac v. Dep't of Agric., 239 F.3d 1334 (general rule limiting emotional‑distress damages for contract breaches)