REBISH v. USA

Filing 12

REPORTED ORDER granting in part 9 Motion to Dismiss - Rule 12(b)(1). Signed by Judge Elaine D. Kaplan. (dw1) Copy to parties.

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No.

14-1022C

(Filed: February 27, 2015)

FEB 2 7

2015

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JIMMI TYLER REBISH,

Tucker Act, 28 U.S.C. g 1491(aX1);
Motion to Dismiss; RCFC 12(b)(1);
Settlement Agreement; Breach of
Contract.

Plaintiff,

THE UNITED STATES OF AMERICA,
Defendant.

Jimmi Tyler Rebrsft, Boise, Idaho, Plaintiff

pp

se.

Agatha Koprowsfti, with whom were Steven J. Gillingham, Assistant Director,
Robert E. Kirschman, Jr., Joyce R. Branda, Acting Assistant Attomey General,
Director Commercial Litigation Branch, Civil Division, United States Department
of Justice; and Of Counsel, Nanette Gonzaies, Attomey, United States
Department ofthe Interior, Office of the Solicitor, for Defendant.

OPINION AND ORDER
Kaplan, Judge.
This case is currently before the Court on the government's partial motion to dismiss. On
October 21, 2014, the plaintiff, Jimmi Tyler Rebish, filed a p1q se complaint alleging that his
former employer, the Department of Interior, Bureau of Reclamation (hereinafter the "Bureau of
Reclamation" or "the Bureau"), breached a settlement agreement it entered into with him in 200g
to resolve pending employment-related grievances and complaints. Mr. Rebish alleges that the
Bureau of Reclamation's breaches included providing "less than neutral references" as well as
"six years ofreprisal or retaliation, prohibited personnel practices, confidentiality breaches and
breaches of privacy act notice." compl. ti 2. As a result of these actions, Mr. Rebish alleges that
he has been unable to "regain employment," resulting in ,,frnancial hardship,' as well as
"pecuniary and non-pecuniary losses involving depression, embarrassment, humiliation, loss of
professional standing and reputation, loss ofenjoyment oflife, adverse effect to physical health
and marriage (divorce), real estate, [and] depleted retirement accounts." Id. at 3. He requests
fl
that the court award him damages in the sum of$550,000, that it order him "reinstated as a

federal employee in a position of [his] choice," and that it further direct the restoration of "all
time in service, sick leave, vacation time and Thrift Saving Plan contributions and back pay." Id.
On December 22,2014,the govemment filed a partial motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) ofthe Rules ofthe Court of Federal Claims
('RCFC'). It contends that Mr. Rebish's complaint includes claims for retaliation and breach of
privacy that sound in tort and are therefore beyond this Court's jurisdiction under the Tucker
Act,28 U.S.C. 1491(a). Def.'s Mot. 3. It further contends that Mr. Rebish's claims of
prohibited personnel practices are outside ofthis Court's jurisdiction because they fall under the
exclusive jurisdiction of the Merit Systems Protection Board. ld. at3'4.

For tle reasons set forth below, the Court GRANTS-IN-PART the govemment's motion
to dismiss as to plaintiffs claims ofreprisal, breaches of privacy, and prohibited personnel
practices. The Court retains jurisdiction as to plaintiff s claim for breach of his settlement
agreement with the Bureau of Reclamation, including his claim for an award ofnon-pecuniary
damages resulting from that breach.

BACKGROUND
As noted, Mr. Rebish alleges that the Bureau of Reclamation breached a settlement
agreement it entered into with him in October, 2008 to resolve certain pending employmentrelated grievances and complaints. Compl. fl 1 See Compl. Attach. (Superseding Negotiated
Settlement Agreement and General Release and Waiver-hereinafter "Agreement"). Pursuant to
the agreement, Mr. Rebish agreed to withdraw with prejudice any existing complaints, appeals,
charges or grievances related to his employ,rnent that arose pdor to the date ofthe agreement or
that were pending at the time ofthe agreement. Agreement fltf 2-3. In exchange, the Bureau of
Reclamation agreed to pay Mr. Rebish $6,500, in addition to the $8,500 that the Bureau had
already paid him, and to keep him on paid status until October 17,2008, after which he would be
removed from the rolls based on his declination ofa directed geographic reassignment. Id. at flfl
4a -4b. It also agreed to place him on the Agency's Reemployment Priority List, subject to
certain exceptions. Id. at !f 4c. In addition, the Bureau agreed to expunge his persorurel file of
any material related to the underlying matter, except for his letter ofresignation and an SF-50
effecting his declination ofthe directed reassignment. Id. at fl 4e.

Finally, the Bureau agreed to give Mr. Rebish a neunal reference in response to any
inquiries about his employment at the Bureau. Id. at fl 4d. Specifically, paragraph 4d provides
that the Bureau agreed to:

Upon the effective date of this Agreement, provide Grievant with a neutral
reference that will be given by Ms. Ellie Hasse or her identified successor. Ms.
Hasse will only provide the following information in regard to any reference
check: (1) current or past position(s) and title(s); (2) cunent or past grade(s); and
(3) dates of employment.
As noted, Mr. Rebish alleges that the Bureau breached its obligation to provide him with
neutral references that would only be given by Ms. Hasse or her identified successor. Compl. fl

2. He also alleges that the Bureau committed "confidentiality breaches," which the Court
interprets to be an allegation that the Bureau violated paragraph seven of the settlement
agreement, requiring both parties to keep the terms ofthe settlement agreement and the facts
surrounding it confidential. Attached to Mr. Rebish's complaint are what appear to be notes of
conversations with three Bureau employees or offrcials, including the Director ofEEO and Civil
Rights and a Human Resources Manager providing information and opinions about, among other
things, his job performance and the circumstances ofhis departure from the Bureau.

DISCUSSION
The Court of Federal Claims has jurisdiction under the Tucker Act to hear "any claim
against the United States founded either upon the Constitution, or any Act of Congtess or any
regulation ofan executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $
1a91(a(1) (2012). The Tucker Act waives the sovereign immunity of the United States to allow
a suit for money damages, United States v. Mitchell, 463 U.S. 206,212 (1983), but it does not
confer any substantive rights on a plaintiff. United States v. Testan,424 U.5.392,398 (1976).
Therefore, a plaintiff seeking to invoke the court's Tucker Act jurisdiction must identifu an
independent source of a substantive right to money damages from the United States arising out
of a contract, statute, regulation, or constitutional provision. Jan's Helicooter Serv.. Inc. v. Fed.
Aviation Admin. , 525 F.3d 1299, 1306 (Fed. Cir. 2008).
Subject matter jurisdiction is a threshold matter, and the court must dismiss the case if it
does not have jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). In deciding a motion to dismiss for lack
of subject matter jurisdiction, the court accepts as true all undisputed facts in the pleadings and
draws all reasonable inferences in favor of the plaintiff. Trusted Integration. lnc. v. United
States,659F.3d 1159, 1163 (Fed. Cir.2011). The court may "inquire into jurisdictional facts" to
determine whether it has jurisdiction. Rocovich v. United States,933 F.2d 991,993 (Fed. Cir.
1991). The plaintiffbears the burden of establishing subject matter jurisdiction by a
preponderance ofthe evidence. Brandt v. United States,7l0 F.3d 1369,1373 (Fed. Cir. 2013).
While complaints that are filed by pro se plaintiffs, as this one is, are held to "less stringent
standards than formal pleadings drafted by lawyers" (Haines v. Kemer, 404 U.S. 519,520
(1972)), even p1q se plaintiffs must persuade the Court that jurisdictional requirements have been
met. Bemard v. United States, 59 Fed. Cl. 497 ,499 (2004), affd, 98 Fed. App'x 860 (Fed. Cir.
2004).

It is well established that disputes over settlement agreements are govemed by contract
principles. Cunningham v. United States,748 F.3d 1172,1176 (Fed. Cir. 2014) (citing Greco v.
Dep'toftheArm)'.852F.2d 558,560 (Fed. Cir. 1988)). Thus, this Court has jurisdiction under
the Tucker Act to hear claims alleging breaches of agreements settling the employment-related
complaints of federal employees so long as the plaintiff "demonstrate[s] that the agreement[ ]
could fairly be interpreted as contemplating money damages in the event of a breach." Holmes
v. United States. 657 F.3d 1303, 1313 (Fed. Cir.2011). See also VanDesande v. United States.
673 F.3d 1342. 1347 (Fed. Cir. 2012).

A provision in a settlement agreement in which an agency agtees to provide an employee
with neutral references is one that could fairly be interpreted as contemplating money damages
for its breach because it is designed to prevent an individual from being denied future
employment. Holmes. 657 F.3d at 1316. Such provisions "inherently relate to monetary
compensation through relationship to [the plaintifP s] future employment." Id. See also
Cunninqham, 748 F .3d ar 1177J8. For that reason, and because the agreement itself does not
include language "indicating that the parties did not intend for money damages to be available in
the event ofbreach," Holmes, 657 F.3d at 1316, this Court has Tucker Act jurisdiction to hear
Mr. Rebish's claims that the Bureau of Reclamation breached the provision in the settlement
agreement requiring it to provide neuhal references in response to inquiries as well as the related
provision requiring both parties to maintain confidentiality with respect to the terms and
conditions of the settlement agreement.r
On the other hand, the Court lacks jurisdiction over the allegation in plaintiffs complaint
that the Bureau committed "breaches of privacy act notice." To the extent that Mr. Rebish
intended to allege that the Bureau committed violations of the Privacy Act, jurisdiction over such
a claim would lie in district court, not the Court of Federal Claims. See 5 U.S.C. $ 552a(g)(l);
Parker v. United States, 280 F. App'x 957 ,958 (Fed. Cir. June 28, 2008) (non-precedential),
affirming 77 Fed. CL.279 (2007); Madison v. United States, 98 Fed. Cl. 393, 395 (201 1).

This Court similarly lacks jurisdiction over Mr. Rebish's claims of reprisal, retaliation,
and the commission ofprohibited personnel practices because these claims arise under the Civil
Service Reform Act and are within the exclusive jurisdiction of the Merit Systems Protection
Board ("MSPB"). See Worthinston v. United States,16& F.3d24,26-27 (Fed. Cir. 1999) (citing
United States v. Fausto. 484 U.S. 439,454 (1988) (observing that the Court of Federal Claims
lacks Tucker Act jurisdiction over personnel actions and prohibited personnel practice claims
that lie within the jurisdiction of the MSPB pursuant to the Civil Service Reform Act)); see also

' In its motion to dismiss, the government claims that Mr. Rebish's claims for non-pecuniary
damages involving depression, embarrassment, loss ofprofessional standing and reputation, loss
ofenjoyment oflife, and adverse effects on his physical health and marriage "sound in tort" and
thus must be dismissed as beyond this Court's Tucker Act jurisdiction. Def.'s Mot. 3. The
Court does not view these allegations ofnon-pecuniary injuries as sounding in tort but rather as
damages that Mr. Rebish is alleging he suffered as a result of the Bureau's alleged breach of
conftact, a claim which is squarely within this Court's jurisdiction under the Tucker Act, as
described above. The Court notes that it seems very unlikely that Mr. Rebish will be able to
establish entitlement to such non-pecuniary damages in connection with the particular contract
claims he is pressing in this case. See Bohac v. Dep't of Agric.. 239 F.3d 1334, 1340 (Fed. Cir.
2001) (observing that while limited exceptions exist "[u]nder the traditional contract law
approach, 'it is well established that, as a general rule, no damages will be awarded for the
mental distress or emotional trauma that may be caused by a breach of contract"' (emphasis
added) (citations omitted)). Nonetheless, the Court does not view the question ofMr. Rebish's
entitlement to such damages as bearing on the Court's jurisdiction to hear his claims arising out
ofa breach of contract and so sees no need to address the damages issues in the context ofthe
goverffnent's motion to dismiss under RCFC 12(bX1).

Price v. Panetta, 67 4 F .3d 13 3 5, 1339 (Fed. Cir. 2012) ("Complaints by civil service employees
regarding personnel actions covered by the Civil Service Reform Act are subject to the
jurisdiction of
and do not give rise to actions under the Tucker Act or the Little
-the [MSPB]
Tucker Act.").' Indeed, Mr. Rebish has already pursued his claims ofreprisal, retaliation, and
the commission ofprohibited personnel practices before the Board and the Court of Appeals for
the Federal Circuit, albeit unsuccessfully.
Rebish v. MSPB, Nos. 2014-308 5,2014-3087,
-See
2015 WL 452019 (Fed. Cir. Feb. 4, 2015).'

CONCLUSION
On the basis of the foregoing, the govemment's partial motion to dismiss is

GRANTED-

IN-PART as to plaintiff s claims alleging retaliation, reprisal, prohibited persoru:el practices and
violations ofthe Privacy Act.

IT IS SO ORDERED.

Judge

United States Court of Federal Claims

2 To the extent that Mr. Rebish's claims for retaliation and reprisal refer to something other than
retaliation for whistleblowing, which is a prohibited personr:el practice under 5 U.S.C.$
2302(bX8), such claims would nonetheless be outside ofthis Court's jurisdiction under the

Tucker Act because they "sound in tort." See Jentoft v. United States, 450 F.3d 1342,1349
(Fed. Cir. 2006) (holding that claims ofagency retaliation against plaintiff for exercising her
statutory rights are tortious in nature and not within the court ofFederal claims' Tucker Act

jurisdiction).
3

In its recent ruling, the Federal Circuit upheld the MSPB's dismissal of Mr. Rebish's prohibited
personnel practice and reprisal claims on the grounds that "he failed to make a sufficient
allegation that a disclosure he made contributed to the [agency's] decision to make the allegedly
unfavorable emplol.rnent references at issue" Rebish, 2015 WL 452019 at *2.