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Holmes v U.S.

Case No. 2010-5119 (C.A. Fed., Sep. 12, 2011)

Timothy O. Holmes appeals the final decision of the United States Court of Federal Claims dismissing for lack of jurisdiction his amended complaint asserting two separate breach of contract claims under the Tucker Act, 28 U.S.C. § 1491(a)(1). Holmes v. United States, 92 Fed. Cl. 311 (2010). In his suit, Mr. Holmes alleged that the Department of the Navy breached two settlement agreements relating to Title VII1 employment discrimination actions that he had brought against the Navy. The court granted the government’s motion to dismiss under Rule of the Court of Federal Claims (“RCFC”) 12(b)(1) for lack of jurisdiction on the ground that neither agreement could fairly be interpreted as mandating the payment of money damages for breach by the government. 92 Fed. Cl. at 321. In the alternative, the court ruled that, even if either agreement could fairly be interpreted as mandating money damages for breach, Mr. Holmes’s suit was jurisdictionally barred by the six-year statute of limitations set forth at 28 U.S.C. § 2501. Id. The basis for the court’s alternative ruling was its determination that Mr. Holmes, who acknowledged that his suit was filed outside the limitations period, was not entitled to the benefit of the accrual suspension rule. Id. at 320.

For the reasons set forth below, we hold that the settlement agreements at issue can fairly be interpreted as mandating the payment of money damages for breach by the government. We also hold that, at least insofar as the allegations in the amended complaint are concerned, Mr. Holmes has demonstrated entitlement to the benefit of the accrual suspension rule. We therefore reverse the decision of the Court of Federal Claims and remand the case to the court for further proceedings consistent with this opinion.

BACKGROUND



I



The pertinent facts are set forth in the amended complaint (“Am. Compl.”). See Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005) (“Like the trial court, this court tests the sufficiency of the complaint as a matter of law, accepting as true all nonconclusory allegations of fact, construed in the light most favorable to the plaintiff.”).

Mr. Holmes is a disabled Navy veteran who was honorably discharged in December of 1990 after twelve years of military service. Am. Compl. ¶ 13. He was subsequently employed by the Navy as a yeoman storekeeper aboard the USNS Mars, a naval supply ship operated by the Military Sealift Command, Pacific Fleet. Id. ¶ 16. Mr. Holmes was terminated from his employment aboard the Mars on July 22, 1994, purportedly for performance reasons. Id. ¶ 20. On October 1, 1994, he filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”) alleging that he had been wrongfully terminated due to “false, malicious, and discriminatory accusations about his character and conduct aboard [the] USNS Mars.” Id. ¶ 21. In August of 1995, Mr. Holmes and the Navy executed an agreement (“1995 Agreement”) to settle the EEOC action. Id. ¶ 23. Under the terms of the 1995 Agreement, the Navy agreed (1) to remove from Mr. Holmes’s Official Personnel Folder (“OPF”) all adverse performance evaluations pertaining to his employment with the Navy for the period of time he was aboard the Mars; (2) to remove all records of disciplinary action taken against him during his employment; and (3) to document his OPF to show that he had resigned for personal reasons on July 22, 1994. Id. ¶ 23.
 

 

Judge(s): Alvin Schall
Jurisdiction: U.S. Court of Appeals, Federal Circuit
Related Categories: Civil Procedure , Employment , Government / Politics , Veterans
 
Circuit Court Judge(s)
Kimberly Moore
Kimberly Moore
Sharon Prost
Sharon Prost
Alvin Schall
Alvin Schall

 
Trial Court Judge(s)
Emily Hewitt
Emily Hewitt

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
James Boland Venable LLP
James Boland Venable LLP
Terry Elling Venable LLP
Terry Elling Venable LLP

 
Defendant Lawyer(s) Defendant Law Firm(s)
Jeanne Davidson U.S. Department of Justice
Jeanne Davidson U.S. Department of Justice
Harold Lester, Jr. U.S. Department of Justice
Harold Lester, Jr. U.S. Department of Justice
Richard Schroeder U.S. Department of Justice
Richard Schroeder U.S. Department of Justice
Tony West U.S. Department of Justice
Tony West U.S. Department of Justice

 

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relatedly, we do not agree with the court of federal could not establish jurisdiction under 1491(a)(2) because compensation by the federal government for the dam- this case, we view the navy's statement as no less compel- months after the 2001 agreement was signed, "the navy `founded either upon the constitution, or any act of navy to suspend mr. holmes from his job aboard the about the alleged breach, only to check again later and available at http://www.cafc.uscourts.gov/oral-argument- ____________________________ inc., v. united states, 161 f.3d 1372, 1377 (fed. cir. mandating provision that established jurisdiction for an congress, or any regulation of an executive department,' ments was an express contract with the government, such holmes v. us31 its obligations under the 1996 agreement. in view of his money damages for defendant's breach." holmes, 92 fed. the situation in which a plaintiff simply failed to request that either this fact, or mr. holmes's unsuccessful at- states, 54 fed. cl. 423, 425-26 (2002); mitchell v. united requested corrections to the marine index bureau per- not give rise to tucker act jurisdiction, and we have found as far as the "inherently unknowable" standard is con- the mars on july 22, 1994, purportedly for performance the united states court of federal claims. wilner v. we do not view title vii's comprehensive scheme as a bar . . . done so (roberts) and the situation in which the govern- that a claim to enforce a contract resolving a dispute tions imposed on the parties" because its jurisdiction in view of statements in the amended complaint suggest- claims's jurisdiction.15 within the jurisdiction of the court of federal claims performance thereof, could have provided the basis for a before prost, schall, and moore, circuit judges. from the tucker act, which, in relevant part, gives the of health & human res., 532 u.s. 598, 604 & n.7 (2001)). ised action had been taken. rather, those cases involved set forth in the amended complaint, two and a half that the tucker act's grant of jurisdiction for breach of appeal from the united states court of federal __________________________ a reading that supports [his] claim that he is entitled to 472 ("it is enough, then, that a statute creating a tucker was denied or not considered for these positions be- remedy for breach of contract." id. at 885, court "jurisdiction to render judgment upon any claim in addition, it urges that both the 1996 agreement and frame because we saw "no basis for holding that it would rick's breach of contract claim.7 rick's mushroom serv., agreement was signed, the navy, whose officials are either agreement could fairly be interpreted as mandating 231, 232, 237 (d.c. cir. 2005) ("because hansson's claim taylor v. united states, 73 fed. cl. 532, 541-45 (2006). nine additional hours of driving). the government argues at 1343. ther, because mr. holmes received different information "shall notify the [equal employment opportunity] direc- 7 the court of federal claims has jurisdiction over 73 f.2d at 359 (citations omitted) (emphasis added). as learned of his cause of action.'" id. at 1366 (citing japa- c dictionally barred by the six-year statute of limitations set against the united states founded either upon the consti- tract dispute[s]." see greenhill v. spellings, 482 f.3d 569, tion over the agreement. id. at 321. as further support relief could be granted. forth in the amended complaint, including (i) the navy's den of demonstrating a "fair inference" that the terms of nrcs. id. at 1344. as an adjunct to its cda claim, navy's breach of the 2001 agreement. instead, mr. neither agreement could "be fairly interpreted as mandat- clear that the parties' obligations were meant to continue july 2001 letter, and (iii) mr. holmes's ability to obtain holmes v. us 10 have been reasonable for the lessor to have discovered years after the government's breach. he argued, though, jurisdiction does not address whether mr. holmes's suit is opf and because mr. holmes had difficulty obtaining arising under the military claims act fell within the "accrual of a claim against the united states is sus- 258 (4th cir. 2007), the court of federal claims had the court of federal claims dismissing mr. holmes's further, there is no language in the agreements indicat- suspension rule, the court of federal claims held that there was no basis for jurisdiction under the cda for jobs. id. 71. could recover for overtime use beyond the six-year time of federal claims lacked jurisdiction to enforce its terms. the government responds that the court of federal 13 the paragraphs of the amended complaint to (emphasis added). thus, the district court did not main- section 2501 states that all claims that otherwise fall statute, or regulation is one that is money-mandating."); the 2001 agreement had been breached no later than when it required him to identify "separate" money- actions that he had brought against the navy. the court young, 529 f.3d at 1384 (quoting martinez v. united for the foregoing reasons, we reverse the decision of court's jurisdiction."), aff'd, 552 u.s. 130 (2008). holmes argues, paragraphs 40 and 70 in the amended provides.9 had breached the agreements at the time he was turned requirements of a valid contract. id. at 260-61. agreeing, money damages for breach, he carried that burden. holmes v. us 34 the right or duty it creates is enforceable through a suit agreements for purposes of the statute of limitations agreement, the government argues that the agreement is b lished decision in roberts v. united states, 312 f. app'x the government's use of fill material from the plaintiff's have known of the alleged breach, mr. holmes's suit is not any event, the earliest time at which he reasonably of fruit tree to plaintiff and the wrong cannot be alleged breaches, mr. holmes sought monetary damages. the court of federal claims derives its jurisdiction ing compensation." id. at 321. within the jurisdiction of the court. see westover v. his suit for unlawful discharge, where he was not un- id. at 1008 n.7. the supreme court subsequently ordered" by the district court in the northern district of tract at issue in that case included a reporting obligation to distinguish it from both roberts and ingrum, upon show that he resigned from the navy for personal reasons the supreme court has shown continued support for mr. holmes was terminated from his employment aboard 16 our holding that the court of federal claims has involved agreements in which the government promised statute, or regulation, . . . the trial court at the outset expunge his record. id. 24. we do not believe, however, therefore dismissed the complaint and rick's appealed. construing all facts in the amended complaint in mr. ment of justice, of washington dc, argued for defendant- procurement contract and that therefore the cda was decisions have found such settlement agreements to fall 2001 agreements." id. at 320 (quoting am. comp. 40). to apply, the plaintiff "must either show that the defen- title vii settlement agreement. that is so even though partially time-barred by a prior version of 28 u.s.c. 1384 (fed. cir. 2008)).11 for the accrual suspension rule adair, 497 f.3d at 1250 ("when the source of such alleged for more than $10,000 . . . [and] within the exclusive united states, 288 f.3d 1347, 1351 (fed. cir. 2002). on agreement, but the alleged breach of this earlier agree- a alleging breach of a title vii settlement agreement. it 28 u.s.c. 1491(a)(1). holmes v. united states, 92 fed. a suit to enforce a contract with the government. see that the 2001 agreement is a consent decree. as the first decision of the court of federal claims and remand the the navy's alleged breaches, was barred by the six-year we turn now to the question of whether, in order to tucker act jurisdiction encompasses his claims that the contract with the united states . . . ." 28 u.s.c. captain proposed to remove mr. holmes from his position. 575 (d.c. cir. 2007); see also hansson v. norton, 411 f.3d situation the statute will not begin to run until pub. l. no. 102-572, 902(a), 106 stat. 4506, 4516, november of 1996, mr. holmes and the navy signed an id. 29, 30. following his departure from the guada- "demonstrated that there is a basis for a `fair inference' liability only if it can fairly be interpreted as mandating sanders v. united states, 252 f.3d 1329, 1334 (fed. cir. holmes resigned from his position aboard the niagara holmes's records or that would support a finding that the ability to obtain employment, the navy's contractual conclusion 1 title vii of the civil rights act of 1964, 42 u.s.c. mr. holmes was able to obtain several temporary contract we affirmed the dismissal. rick's mushroom, 521 f.3d at motion made two separate arguments: (1) that mr. inapplicable to the agreement and could not provide a judicial approval of the relief vis--vis the merits of the federal claims misconstrued the allegations in the federal claims therefore has jurisdiction over mr. tion based upon an implied-in-fact contract with the determined until the tree bears fruit. in this not present in either the 1996 or 2001 agreements. preted as contemplating money damages in the event of complainant alleging breach of an eeoc agreement tucker act creates substantive rights; they are simply at 1551-52 ("neither the tucker act nor the indian navy's breach of the agreements was "inherently un- ter, government officials are presumed to act in good view of the fact that the government had taken upon itself resigned, he joined the seafarers international union changeably with the "concealed or inherently unknow- agreement involving an employment dispute. typically, mr. holmes is a disabled navy veteran who was hon- finally, we need not reach the issue of whether the claims noted, approximately seven years after the conclu- reasonable attorney's fees defined by well-established (concluding that the plaintiff's claims were not inherently complaint were merely assertions that he "only now which the supreme court has stated is precluded under appellant's br. 46; pl.'s resp. at 4. he contends that, in determined that mr. holmes was on inquiry notice that the court of federal claims ("rcfc") 12(b)(1) for lack of tucker act jurisdiction normally is satisfied by the pre- and "[i]nstead, rick's attempt[ed] to rely on the cda . . . the agreements entitle him to money damages. he main- (1996), "damages are always the default compl. 27, ex. a 2. likewise, under the 2001 agree- united states court of federal claims dismissing for lack with the united states," 28 u.s.c. 1491(a)(1), because u.s.c. 1491(a)(1) . . . ."); khan, 201 f.3d at 1377-78 contractual promise, (ii) its affirmative statement in the argument, the government points to navajo nation, money is the presumptive remedy for breach of contract. ingrum, 560 f.3d at 1315 n.1, includes an intrinsic rea- limitations. holmes, 92 fed. cl. at 321 n.13. however, existed, we have explained that this formulation does not for no more than that the `statute will not begin to run monetary damages and stating that neither the settle- claims's reading of paragraphs 40 and 70 of the amended holmes v. us 24 for its finding that mr. holmes was on "inquiry notice" by jurisdiction, such as a contract with the united states." 346, cmt. a (1981)). subsequent discussion of the money-mandating require- ently unknowable." he relies on l.s.s. leasing corp. v. when the siu began conducting background checks in ute of limitations `will not begin to run until plaintiff as far as the 2001 agreement is concerned, the magis- kania v. united states, 650 f.2d 264, 268-69 (ct. cl. in the court of federal claims, mr. holmes took the a contract case, the money-mandating requirement for indicated that the navy had not documented his record to 5 in kokkonen the supreme court distinguished ac- acknowledged, his complaint was filed more than six information from the government when he could have had breached its obligations under the agreements until "relieved" of "the costly burden of monitoring such usage." limitations is a jurisdictional requirement. john r. sand money damages depends upon whether any federal stat- from the government for alleged breach of its duties under "to provide the marine index bureau . . . with a neutral kilauea for fourteen days. id. 31. in response, mr. holmes v. us 12 circuit has explained, the supreme court has emphasized ate[s] to waive sovereign immunity for claims premised on tract. in other words, he contends that he was not bur- 28. moreover, as noted, after leaving the navy in 1999 jurisdiction for an implied-in-fact contract under 28 amended complaint for lack of jurisdiction. the case is the comprehensive statutory scheme established under executive department, or upon any express or implied and rick's d[id] not point to a money-mandating source of reason, the 2001 agreement is not a consent decree. with private agreements, there is a pre- states v. navajo nation, 129 s. ct. 1547, 1551 (2009). presumed to act in good faith, see savantage financial qualified [sic]. on information and belief, mr. holmes nothing in ingrum, or the case it cites on this point, appellee's br. 51. [g]overnment for the damage sustained." 372 f.2d at jurisdiction over the alleged implied contract, the court of argues that these paragraphs do not indicate that he was ney representing the government in the northern district copy of his personnel record and had discovered that the of his cause of action. the court of federal claims "shall have jurisdiction to handling the civil action [which led to the 2001 agree- appellee. with him on the brief were tony west, assis- holmes v. us9 claims, but the fact that the resolution of a contract claim compl. 28. after leaving the guadalupe in july of 1997, arising under the constitution, a statute, or a regulation right is a statute, it can only support jurisdiction if it necessary for the navy to comply with its obligations federal claims cases which have reached a similar con- provision, a statute, or a regulation that provides a sub- the 1996 agreement had been breached as early as 1999, in 28 u.s.c. 2501. makes the argument that, as a consent decree, the court should result in some type of tolling of the statute of promise, and his knowledge that the navy had partially earlier date. see oral arg. at 44:39-46:03, available at united states v. winstar corp., 518 u.s. tion" rule demands a showing demonstrably lower than office to another.8 under these circumstances, in this had not complied with its obligation under the 1995 which the government relies. neither of those cases 2001 a]greement." id., ex. b 17, p.5 ll.20-21; see the government. we also hold that, at least insofar as the early as 1999 and that he believed this was due to the suit, which was first filed on april 9, 2009, was filed taken the steps necessary to expunge mr. holmes's opf had requested that the mib correct its records pertaining with defendant or any agency, activity, or office under the would be when defendant delivers the wrong type orably discharged in december of 1990 after twelve years ment, the navy agreed to "take the necessary steps, 12 although it is sometimes stated that accrual of a holmes as a yeoman storekeeper aboard the usns gua- holmes v. us 32 his alleged injury was "inherently unknowable" when his we stated that rick's had not pointed to a money- ____________________________ cally mean that the court of federal claims lacks lessor. id. mr. holmes contends that this court's decision he is entitled to the payment of money damages for lant's br. 46. contrary to the court's findings, mr. holmes property was not "inherently unknowable," where the use and those stemming from a contract. put another way, in we recognize that the court of federal claims mation that discouraged potential employers from contract, with no further inquiry being necessary. must be satisfied that the court whose opinion is the multiple times since 1999, but has largely been un- of limitations periods [sic] is dependent upon the facts of eeoc complaint was pending, mr. holmes served as a 2501. 695 f.2d at 1366. we concluded that the lessor f.3d at 1175-76 (non-en banc portion). contract claims can encompass such claims arising from 1981). in short, "[t]he government's consent to suit under united states, holmes v. us11 tunity commission ("eeoc") alleging that he had been terms or rescission of the settlement agreement and resentatives of the military sealift command have of a contract between the plaintiff and the government background checks in 2005, he was able to secure some and those stemming from a contract. in eastport, the tant attorney general, jeanne e. davidson, director, belief on mr. holmes's part that the navy had performed as noted, the court of federal claims separately case, we think it was proper for the court to require a 3 the government states: holmes v. us 26 or other state and federal law in order to resolve the holmes v. us21 thus disagree with the court of federal claims that mr. to take certain action (thereby bringing into play the united states, 695 f.2d 1359 (fed. cir. 1982), as inter- jurisdiction, the court did not reach the government's [that] use at an earlier date," because the government had v. 12(b)(1) or, alternately, for failure to state a claim pursu- that the "concealed or inherently unknowable" formula- ered the use at an earlier date." id. while we have stated id. 35. after being notified of his proposed removal, mr. white mountain apache tribe, 537 u.s. at 472. thus, it ling than the overtime reports that the government was and that it had asked the mib to correct its records years after the navy allegedly breached the two agree- notice of the possibility that the government would use the standard for the initial waiver of sovereign immunity. action. id. 26, ex. a. under the 1996 agreement, the breach. appellee's br. 38-42, 48-50. the government states, 63 f.3d 1097, 1101 (fed. cir. 1995))). by the [f]ederal [g]overnment for the damages sustained.'" title vii disputes are not per se beyond the tucker act holmes v. us33 nent of the "inherently unknowable" prong of the test. cise of jurisdiction. id. at 261. subsequently, the district civilian storekeeper aboard the usns niagara falls. id. 2001). thus, when a breach of contract claim is brought officials act in good faith, we are not prepared to say that, v. mitchell, 463 u.s. 206, 218 (1983)). sonnel file, the fourteen-day suspension" and "to provide plaintiff-appellant, believes that the navy's breaches caused him damages as & gravel co. v. united states, 552 u.s. 130, 133-34 separate from, or in addition to, the relief the regulation (1) compliance or (2) reinstatement of the original com- tempts to obtain employment after the 1996 agreement, [i]n the area of government contracts, as pended, for purposes of 28 u.s.c. 2501, until the claim- 4. we think that, in the context of the two agreements, because it is "both more common and more precise." id. agreements, by paying him $1,000 (2001 agreement) and lessor's claim against the united states for payment for mr. holmes and the navy executed an agreement ("1995 to the exercise of such jurisdiction. in massie v. united navy had complied with its duties under the agreements, money damages are the presumptive remedy for breach of law to establish jurisdiction under 28 u.s.c. 1491(a)(1)," case to the court for further proceedings consistent with separate breach of contract claims under the tucker act, mushroom, 521 f.3d at 1343. the suit related to, inter alia, his fourteen-day suspension agreement, mr. holmes had requested and received a in this case. positions because of the navy's breaches of the 1996 and whether the court of federal claims may exercise its service ("nrcs"). the court of federal claims held that suit, which concededly was filed more than six years after 2010-5119 united states court of appeals ontario power generation, inc. v. united states, 369 f.3d plaintiff learns or reasonably should have learned defendant-appellee. performed, we do not believe mr. holmes was on "inquiry (2008). states, 61 fed. cl. 458, 464-65 (2004); taylor v. united taining to mr. holmes." am. compl. 39.14 thus, ac- v. napolitano, 562 f.3d 84, 90 (1st cir. 2009) (en banc) cl. at 316. the court also stated that mr. holmes had not forth in the amended complaint. after discovery, as mr. we found jurisdiction lacking for the further reason that 1348. we agreed with the court of federal claims that services, 595 f.3d at 1288, affirmatively stated that steps the trial court, this court tests the sufficiency of the holmes v. us27 court of federal claims's jurisdiction, even though the a cause of action first accrues when all the events have fit of the accrual suspension rule, and having filed his and harold d. lester, jr., assistant director. like mr. holmes, the government takes the position united states, 71 fed. cl. 635, 638-39 (2006); see also in granting the government's motion to dismiss, the sion doctrine, in certain narrow circumstances, the stat- united states for money damages. it is the govern- that the navy had breached the 2001 agreement by had resigned on july 22, 1994 for personal reasons. id. and belief, [he] was denied or not considered for those involving the government could involve purely non- reasons. id. 20. on october 1, 1994, he filed a com- benefit of the accrual suspension rule. id. at 320-21. 15 our holding is based solely on the allegations set in the court of federal claims, mr. holmes acknowledged mr. holmes appealed. we have jurisdiction pursuant aboard [the] usns mars." id. 21. in august of 1995, id. at 319 (quoting young v. united states, 529 f.3d 1380, endorsed the latter standard as preferable, however, congress or any regulation of an executive department, or faith."). agreements did not support a "fair inference" that mr. cerned, mr. holmes acted unreasonably in not double- storekeeper; (2) to provide him transportation to his command of defendant, including but not limited to lessor from discovering the use earlier. we stated that, in claim against the united states will be suspended until testan, 424 u.s. 392, 400 (1976)). this "fair interpreta- point to a money-mandating provision that establishes the type of agreement at issue, rick's had not pleaded the ment agreement providing for damages as a result of qualifies . . . as money-mandating." (citing white moun- in good faith), combined with indications that the prom- mr. holmes's opf to indicate that he had resigned for the parties and hold that settlement agreements resolving twelve years after the alleged breach of the 1996 agree- 27, ex. a 2. taken control of after-hours access to the leased facility 1345, 1353 (fed. cir. 2006) ("as an appellate court, we which the court of federal claims pointed read as fol- what mr. holmes alleges: that the navy stated that it had agreements had been breached.13 attorney handling the civil action that the navy had implemented or, alternatively, that the complaint be his discharge until 2004, and that his injury thus was department of the navy breached two settlement agree- having dismissed the amended complaint for lack of c three related factors to be used to determine if a court- navy had breached the 2001 agreement. action.'" (quoting japanese war notes claimants ass'n, who acknowledged that his suit was filed outside the district court retained jurisdiction for one year "for the holmes filed a third eeoc complaint. in it, he asserted to one side contract-based claims. to begin with, we review de novo the court of federal claims's dis- mr. holmes filed suit in the court of federal claims the court of federal claims granted the govern- is a split of authority on it in the court of federal claims. upon any express or implied contract with the united seeks equitable relief under title vii, but rather seeks hiring him. moreover, on information and belief, rep- holmes v. us 6 plaint with the united states equal employment oppor- for the federal circuit in the absence of contract terms specifically precluding sumption in the civil context that a dam- criminatory accusations about his character and conduct knowable." see also ingrum, 560 f.3d at 1315 & n.1, 1317 and was tasked with reporting its overtime use to the that, in the case of both the 1996 and the 2001 agree- (w.d. va. june 23, 2005). the fourth circuit affirmed. that the court lacks tucker act jurisdiction over claims states district court for the central district of california. though it appeared that nothing prevented the plaintiff he had been denied positions for which he was qualified, court stated that "[u]nder section 1491 what one must april 26, 2002, which marked the end of the one-year holmes v. us 22 that the allegation of theft and the resulting suspension resigned on july 22, 1994 for personal reasons. am. while aboard the kilauea. id. 37, compl. for employ- possesses jurisdiction over a claim where plaintiff can notorious but the plaintiff did not avail himself of the there also appears to be a split of authority among basis for jurisdiction under 1491(a)(2). id. at 1344. in recordings/2010-5119/all. mr. holmes maintains that he unknowable" test includes a reasonableness component. lack of jurisdiction under the tucker act, and (2) its sonnel records from the navy in may of 2006; the records addressed the navy's performance under the 1996 we agree with mr. holmes that the "concealed or in- requirement claims "which . . . fall under another head of compl. ("pl.'s resp.") at 3-6, holmes v. united states, no. past one year. the 2001 agreement provides that "plain- holmes v. us13 that the terms of settlement agreement be specifically nese war notes claimants ass'n v. united states, 373 f.2d limitations of 28 u.s.c. 2501. we address the first issue holmes v. us35 tucker act; and (2) that his breach of contract claims personal reasons. the 2001 agreement required the navy tain "judicial oversight and ability to enforce the obliga- nary action taken against him during his employment; the complaint that he believed or suspected at the time dismissal of his claims as barred by the six-year statute of because, viewing the facts in the light most favorable to holmes v. us 16 it is true that, prior to the execution of the 1996 owned refrigerator from his stateroom and selling it to tains that such a burden does not exist when a tucker act magistrate judge at the bottom of the agreement, the the court ruled that mr. holmes was not entitled to the martinez, can be said to prohibit such a reasonableness his employment with the navy for the period of time he united states v. spearin, 248 u.s. 132 (1918), which sets changeably with the "knew or should have known" test, contract is not involved, to invoke jurisdiction under the tions in the amended complaint relating to his periods of breach by the government." holmes, 92 fed. cl. at 317. for attorney's fees neither requires an interpretation of d the court might have to interpret the tribal consent act that statement as eschewing the reasonableness compo- should have known of the navy's alleged breach at an under a law whose alleged violation gave rise to the the plaintiff's recovery for the government's overtime use navy maintained it prior to the agreements. in short, the successful because his personnel record retained by holmes v. us3 ments, and because the court determined that he was not against him during his service aboard the usns guada- retransferred to the district court the plaintiff's claim the very nature of his suit an action for breach of con- jurisdiction on the ground that neither agreement could ness.'" reply br. 17-20. tive right to money damages." (citing hamlet v. united am. compl. 40, 70. cir. 1998), we stated that the broad jurisdictional grant government." id. at 1552 (quoting united states v. motion by the plaintiff for monetary damages. frahm v. set forth in 28 u.s.c. 1491(a)(1) does not exempt con- 356, 359 (ct. cl. 1967)). in l.s.s. leasing, we held that a navy breached the 1996 and 2001 agreements. he also prospective employers. b until [the claimant] learns or reasonably should have states, 44 fed. cl. 437, 438-39 (1999); lee v. united appeal, mr. holmes challenges both (1) the court of no later than 2002, the court pointed to mr. holmes's changed the name of the united states claims court to the obligation to report overtime usage, the lessor was holmes v. us23 money damages for breach, mr. holmes's suit was juris- to the circumstances of his discharge in 1994. he alleged stated in a letter to the assistant united states attorney ment and approximately eight years after the alleged the usns guadalupe, beginning in january of 1997. am. tracts, the court erroneously imposed upon him the bur- 1998) (quoting mfrs. aircraft ass'n v. united states, 77 ct. ment. id. 53. on october 31, 2008, the district court was aboard the mars; (2) to remove all records of discipli- ("opf") all adverse performance evaluations pertaining to establishing that the agreements supported a "fair infer- court of federal claims has jurisdiction over consent employed mr. holmes as a yeoman storekeeper aboard agreement"). id. 38, ex. b. under the terms of the after he resigned from the navy in 1999, before the siu alternative ruling was its determination that mr. holmes, __________________________ navy in 1999, and before the siu began conducting 09-208c (fed. cl. dec. 2, 2009). knowable." holmes, 92 fed. cl. at 319-20. the court ment of goods or services which would come within the however, as the court of federal claims noted, the official personnel file, the fourteen-day suspension" and to be the routine remedy for the breach of a settlement determined that mr. holmes had not carried his burden of ment. see, e.g., white mountain apache tribe, 537 u.s. at of the amended complaint. in that letter, mr. holmes agreements and that the court of federal claims erred cording to mr. holmes, very shortly after the 2001 deprive the court of federal claims of jurisdiction over there is no express contract." id. at 1344 (citing trauma breach, or was required to demonstrate that the two claims correctly held that mr. holmes failed to show that 128 f. supp. 2d 237, 241 n.7 (e.d. pa. 2001). stances of this case are analogous to those in our unpub- ment was in the same stream of events as the alleged holmes had not established a money-mandating source of lupe, mr. holmes was accused of stealing a government- neither do we think that the eeoc regulation to subject to dismissal on the merits under rcfc 12(b)(6) shall determine . . . whether the constitutional provision, holmes was entitled to money damages for breach of background plaint ("am. compl."). see samish indian nation v. for [mr. holmes]."2 id., ex. b 2-4. pursuant to para- generally kokkonen, 511 u.s. 375. in sum, we agree with to make such a showing and that he failed to do so. mr. tor, in writing, of the alleged noncompliance within 30 tlement agreements at issue can fairly be interpreted as subject to judicial review. likewise, in del-rio drilling forth at 28 u.s.c. 2501. id. the basis for the court's mr. holmes does not contend on appeal that the navy "fair interpretation" articulation, see fisher v. united cl. 481, 523 (1933)). compliance with the statute of in 1996, after requesting and receiving a copy of his diction due to the statute of limitations, should evidence case was subsequently transferred to the united states braude v. united states, 585 f.2d 1049, 1050-52 (ct. cl. breaching party is entitled to such damages when the proceedings consistent with this opinion.16 suits to the district courts. see, e.g., griswold v. united united states, no. 2-cv-00089, 2005 wl 1528421, at *2-3 plaintiff comes armed with the presumption that money navy stated in a letter to the assistant united states 116 s.ct. 2432 (plurality opinion) (citing, states, 16 cl. ct. 750, 752-54 (1989).4 however, relying another crew member. id. 29. this accusation led the from the navy and military sealift command in response asked the mib to correct its records relating to him. am. agreements inherently relate to monetary compensation contract claims. id. at 1367-68. similarly, although the always ask is whether the constitutional clause or the statement in the amended complaint that "[b]etween 2001 id. accordingly, we saw "no basis for holding that it ment] that the navy took the necessary steps to expunge breach of the 2001 agreement, or, as the court of federal amended complaint to mean that he believed the navy granted the government's motion to dismiss under rule of 419 f.3d at 1364, we assume that this letter declared not receive the benefit of the accrual suspension rule "[n]ormally contracts do not contain provisions specifying lacks jurisdiction. appellee's br. 52 n.8. in making this court agreed that it had jurisdiction because the plaintiff's cluded that the plaintiffs, who sought to recover damages holmes was under a duty to inquire as to whether the standards, it is a contract claim against the united states execution of the 1996 agreement, along with its partial ii record clearly was to prevent mr. holmes from being he was required to demonstrate that the agreements 28 u.s.c. 1491, a court must inquire whether the source aware of the existence of his injury and the acts giving programs inc. v. united states, 146 f.3d 1358, 1367 (fed. breach of the 2001 agreement. further, according to the for the reasons set forth below, we hold that the set- and that 1614.504(a) provided the exclusive remedy for is enough that a statute creating a tucker act right be fall within the tucker act's waiver"); tippett v. united was open and notorious and where the plaintiff was on tution, or any act of congress or any regulation of an 34. while aboard the niagara falls, he was accused of preting the "inherently unknowable" doctrine to "stand[ ] and more precise" than the "knew or should have known" 2001 agreement, the navy agreed to pay mr. holmes holmes with a way to obtain non-monetary relief, namely third eeoc complaint. thereafter, on february 22, 2000, ("[t]o invoke jurisdiction under the tucker act, a plaintiff act jurisdiction was satisfied by the very nature of his were sufficient to reasonably put him on inquiry notice of [or] seek the return of money paid by [it] to the occurring prior to the six-year limitations period, even mr. holmes served aboard the usns kilauea as a civilian of action accrues when the breach occurs." alder terrace, rick's cost-share agreement with the nrcs was not a id. 24. he thereupon filed a second eeoc complaint a contract expressly disavowing money damages would mr. holmes, it is reasonable to conclude that the navy's the army. we held that the former service member could compensation by the federal government." (citations and premise to a tucker act claim will not be ``lightly in- sonableness component. as the court of claims explained the plaintiff's property was located several hundred miles sion. am. compl. 58-59, 61-64. as a result of these compl. 37. the likely basis for the disparate discussion of claims from october of 1998 to april of 1999, while his third 424 u.s. at 400 (quoting eastport, 372 f.2d at 1009). richard p. schroeder, trial attorney, commercial which the government points bars the exercise of tucker ment discrimination on the basis of reprisal at 3, holmes a regulation, from claims based upon a contract. see, e.g., rick's had alleged breach of an implied warranty under be available in the event of breach. discussion holmes v. us15 complaint as a matter of law, accepting as true all non- under the agreement had been taken. in the context of holmes's favor, as we must, see samish indian nation, quiry is required. we view this presumption as forming entitled to the benefit of the accrual suspension rule. service records almost 40 years after his discharge from frahm, 492 f.3d at 262-63. the d.c circuit, however, decided: september 12, 2011 tory damages for the navy's breach of the 1996 agree- to provide the mib with a neutral reference for him. as in part ii and the second issue in part iii. or the 2001 agreement which are reasonably amenable to is enforceable through a suit for damages, but it triggers a showing was not necessary. he maintains that, because preted as contemplating money damages for breach. both trate judge retained jurisdiction for one year; yet it is recordings/2010-5119/all. jurisdiction of the court of federal claims under the states, 333 f.3d 1295, 1319 (fed. cir. 2003) (en banc)).12 claim is "founded . . . upon any express or implied contract holmes v. us19 a former service member was barred from proceeding with outside the comprehensive scheme of title vii and to be he filed a civil action against the navy in the united 1978)). as far as the 2001 agreement was concerned, the ment's motion to dismiss for lack of jurisdiction, agreeing 1338 (fed. cir. 2008), and khan v. united states, 201 on april 9, 2009. in his amended complaint, filed on three types of claims, that "claims alleging the existence ii was not obligated to continuously monitor whether the the marine index bureau (mib) with a neutral reference the terms of the 1995 agreement, the navy agreed (1) to case, and (3) there must be "judicial oversight and ability id. 56; holmes v. dep't of navy, 583 f. supp. 2d 431, unknowable because the government's actions on the six years after such claim first accrues." 28 u.s.c. 2501. by employing him (1996 agreement). in addition, he ment extended well beyond that period. for at least this "shall be barred unless the petition thereon is filed within title vii, which assigns jurisdiction over discrimination agency decision out of which the dispute arose was not mandating provisions in the agreements. as he did in the court of federal claims stated that mr. holmes had that the "inherently unknowable" test includes a reason- states, 497 f.3d 1244, 1250 (fed. cir. 2007); frazer v. that the navy's breaches were causing him harm." appel- finally, we think the circumstances of this case serve sion rule. pl.'s resp. to def.'s mot. to dismiss first am. tions based on a settlement agreement from an action contract always means that tucker act jurisdiction exists. of california litigation that it had expunged his opf and inquiry for tucker act jurisdiction, the cases logically put visiting the property using a southern route, and access- plaintiff's property were open and notorious, even though the claimant "knew or should have known" that the claim specifically, according to the government, the eeoc able time, to expunge from [mr. holmes's] official per- with the government that the terms of the 1996 and 2001 from his residence, poor road conditions kept him from alleging breach of the 1995 agreement. id. 25. in cda claims pursuant to 28 u.s.c. 1491(a)(2). reinstatement of the underlying action. see, e.g., harris on december 16, 1999, mr. holmes withdrew his u.s. at 218 ("[f]or claims against the united states render judgment upon any claim against the united breaches, mr. holmes alleged, he had been largely unsuc- actually a consent decree because it was approved and "so ments. instead, he argues that the breach was "inher- generally, "[i]n the case of a breach of a contract, a cause breach" and that therefore, the court of federal claims lupe." id. 32. in our view, when referencing the money-mandating early as 1999" and he "did not state or otherwise imply in ernment's breach." id. at 318. the court concluded that remanded to the court of federal claims for further claim arose under title vii, but ultimately denied a suit an action for breach of two title vii settlement title vii with respect to her discrimination complaint nor the military sealift command, pacific fleet. id. 16. that is not to say, however, that the existence of a compl. 39; see oral arg. at 13:38-14:27 & 41:39-42:15, ing that the parties did not intend for money damages to the other source of law need not explicitly provide that breach of the 1996 agreement, and in 2001 due to the the fourteen-day suspension from mr. holmes's opf and storekeeper from september of 1997 to august of 1998. denied future employment based on his record as the allegations in the amended complaint are concerned, mr. ment's position that this includes a title vii settle- lows: regulation, we see no reason for 1614.504(a) to preclude ment by failing to act in or around november 1996 and ant to rcfc 12(b)(6). the government's jurisdictional 8 indeed, we note that money damages appear not dismissed the complaint for lack of jurisdiction, stating legislation which the claimant cites can fairly be inter- the fill material); martinez, 333 f.3d at 1319 (finding that the court of federal claims found that there was no forth the rule that a contractor bound to build according holmes v. us7 1491(a)(1). the tucker act does not create substantive tucker act jurisdiction lacking in the case of an agree- mr. holmes argues, as he did before the court of fed- sive and exclusive statutory scheme" precluded its exer- military sealift command . . . ." am. compl. ex. b 5. cda. rick's mushroom, 521 f.3d at 1344. in addition, each case, and must be subjected to a test of `reasonable- that claim." id. in del-rio drilling programs, we con- argued for plaintiff-appellant. with him on the brief was holmes v. us 30 any provision mandating the payment of money for a 41 u.s.c. 601-613 ("cda"), based upon a cost-share jurisdictional provisions that operate to waive sovereign checking the navy's contract performance earlier. we we do not agree with mr. holmes that the court of rick's mushroom, 521 f.3d at 1343-44 ("rick's does not holmes v. us 18 to different requests, see id. 41-42, 49-52, 54-55, it personnel record, mr. holmes discovered that the navy i member discovered an injury upon receipt of his military __________________________ v. brownlee, 477 f.3d 1043, 1047 (8th cir. 2007). lease contracts, were entitled to sue in the court of fed- ute `can fairly be interpreted as mandating compensation therefore, having demonstrated entitlement to the bene- "this court may only find an implied-in-fact contract when outside the six-year limitations period, as it was filed over an example of [an inherently unknowable injury] costs 262-63 (affirming the district court's denial of a motion for not provide a substantive right to recover money-damages suggest that, in fact, mr. holmes knew or reasonably mr. holmes and the government do not dispute the point. this opinion. mr. holmes does not allege that the july 2001 letter federal claims erred in requiring him to demonstrate federal claims's dismissal of his amended complaint for mr. holmes's official personnel folder and that the navy amended complaint, the navy partially complied with its e.g., restatement (second) of contracts (2003)). as a separate basis for its dismissal of the tion of the test for accrual suspension is "more common 10 the 1996 agreement did not set forth a time before addressing the money-mandating issue, how- suit alleging breach of a title vii settlement agreement. ing some difficulty obtaining employment was not alone time-barred and thus beyond the court of federal united states, 560 f.3d 1311, 1314 (fed. cir. 2009). of military service. am. compl. 13. he was subse- would have been reasonable for the lessor to have discov- seems that he could have checked his opf after the that l.s.s. leasing is distinguishable because the con- sumption that money damages are available for breach of inc. v. united states, 76 fed. cl. 250, 258 (2007). it taken the necessary steps to expunge his opf and that it plaint, nor did he argue before the court that the letter we also rejected rick's attempt to establish jurisdic- 2000e et seq. that it breached the 2001 agreement by failing to act in or maritime employment. am. compl. 40, 71, 72. fur- learns or reasonably should have learned of his cause of in the court of federal claims under the tucker act, the the navy contained unfavorable employment infor- this distinction by excluding contract claims from its for the consequences of defects in those plans and specifi- failing to expunge references to the fourteen-day suspen- requirement.6 alternatively, he contends that, assuming 40. between 2001 and the present, mr. holmes ap- a suit for money damages in the event of breach that is a formulation, ingrum, 560 f.3d at 1315 n.1, we do not view demonstration that the agreements could fairly be inter- have known of the alleged breach of the 1996 and 2001 tucker act, a plaintiff must identify a constitutional timothy o. holmes appeals the final decision of the as seen, the tucker act provides in relevant part that ing his property from a northern route required seven to litigation branch, civil division, united states depart- purposes of resolving any dispute alleging a breach of [the court of federal claims under the contract disputes act, navy breached the 1996 and 2001 agreements. ing that he was unsuccessful in obtaining employment as 839, 116 s.ct. 2432, 135 l.ed.2d 964 ferred," a fair inference will do. id. (quoting united states crual suspension rule is distinct from equitable tolling, the court of claims drew a distinction between claims attempted to conceal its alleged breach of the two agree- tends that the court of federal claims ignored allega- holmes v. us17 id. 75. the government moved to dismiss the amended holmes's breach of contract claims. granted. see e.g., adair, 497 f.3d at 1251; fisher, 402 ant knew or should have known that the claim existed." effective july 22, 1994. id. 41-42. thereafter, in 2008, 321. in the alternative, the court ruled that, even if to be filed in the united states court of federal claims. on "inquiry notice" prior to 2005 that the 1996 and 2001 be interpreted as mandating compensation by the federal reinstated for further processing . . . ." 29 c.f.r. limitations period, was not entitled to the benefit of the position that the government breached the 1996 agree- mandating the payment of money damages for breach by agreements settled title vii discrimination complaints, he received copies of his opf from the navy in 2006. alleging breach of a title vii settlement agreement due to __________________________ claims properly examined whether the 1996 and 2001 holmes v. us 14 native that, assuming he was required to show that the relating to mr. holmes. am. compl. 39. cl. 311 (2010). in his suit, mr. holmes alleged that the holmes v. us 36 james y. boland, venable llp, of washington, dc, quently employed by the navy as a yeoman storekeeper lasted only for a year, while obligations under the agree- subject of our review properly exercised jurisdiction, which he was otherwise qualified" yet "[o]n information breached the agreement by failing to expunge references implied-in-fact contract under 1491(a)(1) and that rick's relationship must be court-ordered, (2) there must be right of recovery in damages. id. at 473. while the plaintiff does not "rest [its] claim[ ] upon a contract . . . cir. 1997)). to establish jurisdiction under 28 u.s.c. 1491(a)(2). id. alleged breach of a title vii settlement agreement). serv. group v. united states, 104 f.3d 1321, 1326 (fed. need not explicitly provide that the right or duty it creates that he is entitled to money damages based on the gov- agreements were money-mandating, and that it correctly employment as early as 1999, the government argues, he rights. rather, it is a jurisdictional provision "that oper- worksite; and (3) to document his opf to show that he of substantive law can fairly be interpreted as mandating multitude of reasons. this is particularly so, he urges, internal quotations omitted) (first emphasis added)); and the present, [he] applied for various positions [for] damages are available, so that normally no further in- reflect that he resigned from the navy in 1994 for per- did so because it concluded that title vii's "comprehen- contract jobs. see appellant's br. 46-49, 51-52; am. employees in the maritime industry in an effort to detect 595 f.3d 1282, 1288 (fed. cir. 2010) ("as an initial mat- we agree with the d.c. circuit, as well as court of [g]overnment[, i]t follows that the asserted entitlement to agreement to expunge adverse information from his opf. breach of an agreement. indeed, as a plu- reversed and remanded falls. id. 36. according to mr. holmes, shortly after he john r. sand & gravel, 552 u.s. at 132-39). ("siu") and obtained several temporary contract jobs the navy's alleged breach of the 1996 agreement. that is banc portion), and we view any distinction to be irrelevant through relationship to mr. holmes's future employment. timothy o. holmes, title vii settlement agreements. appellee's br. 51 & navy had failed to comply with the 1995 agreement to establish a substantive right enforceable against the 695 f.2d at 1366. in l.s.s. leasing, the court permitted schall, circuit judge. other sources of law (e.g., statutes or contracts)." united district court for the northern district of california. am. and 2001 agreements could support a fair inference that for failure to state a claim upon which relief could be ment "entirely concerned with the conduct of the parties holmes v. us 4 2 the mib compiles data pertaining to claims by or common law principles in order to resolve contract in rick's mushroom, the plaintiff brought suit in the of jurisdiction his amended complaint asserting two eral claims for enforcement of the contracts, even though tion, mr. holmes's suit for breach of contract is just that: 1173 (en banc) ("when a complaint is filed alleging a meant that, in the case of each agreement, mr. holmes's ableness component. see appellee's br. 17 ("pursuant to 11 as the court of federal claims observed, the ac- ing background checks and he was no longer offered breach. that said, we do agree with mr. holmes's alter- states . . . ." 28 u.s.c. 1491(a)(1). in eastport steam- the pertinent facts are set forth in the amended com- n.8.3 it argues, however, that the 1996 and 2001 agree- regulation at 29 c.f.r. 1614.504(a) provided mr. conclusory allegations of fact, construed in the light most holmes v. us 8 2005 and he was no longer being offered contract jobs. the 2001 agreement required the navy to expunge the purpose of documenting and expunging mr. holmes's said: "it is often necessary to interpret or apply statutory did not attach a copy of this letter to his amended com- united states, 24 f.3d 1397, 1398 n.1 (fed. cir. 1994) (en invoke the tucker act jurisdiction of the court of federal proposition that government officials are presumed to act jurisdiction of the court of federal claims. 511 u.s. 375 (1994),5 other court of federal claims mandates a right of recovery in damages."); mitchell, 463 $1,000 and to "take the necessary steps, within a reason- has concluded that the court of federal claims does have threatening a fellow crew member. as a result, the ship's temporary employment, as well as allegations that the v. danzig, no. 00-01839 (c.d. cal. feb. 22, 2000). the tucker act jurisdiction over these "straightforward con- holmes v. us 20 because the unique cost-share agreement at issue "d[id] preted as contemplating such damages. the court of noted, in l.s.s. leasing, we stated that the "inherently were the result of "discriminatory and retaliatory conduct f.3d 1375 (fed. cir. 2000). see navajo nation, 129 s. ct. having rejected mr. holmes's reliance on the accrual ever, we must resolve the initial jurisdictional question of tling the district court action on april 26, 2001 ("2001 complaint. we agree with mr. holmes that these para- remove from mr. holmes's official personnel folder aboard civilian supply vessels as a storekeeper. id. 71. the regional circuits. in frahm v. united states, 492 f.3d dened with any fair inference or fair interpretation to enforce the obligations imposed on the parties." aronov stantive right to money damages."). failed to identify "any terms of either the 1996 agreement asserts, the navy told the assistant united states attor- 1009. the court exempted from the money-mandating opportunity of discovering it (ingrum). wrongfully terminated due to "false, malicious, and dis- points to the july 11, 2001 letter alleged in paragraph 39 (e.g., statutes or contracts). . . . the other source of law since government officials are presumed to act in good 14 as the court of federal claims noted, mr. holmes holmes, 92 fed. cl. at 314, 320-21. on july 11, 2001, the mr. holmes argues that the court of federal claims's within a reasonable time, to expunge from [mr. holmes's] jurisdiction. holmes argues, however, that because each of the agree- decrees because we do not agree with the government and entitle the claimant to institute an action. ingrum v. graphs are most properly read as stating mr. holmes's points to the trial court's observation of "the absence of "inherently unknowable." id. at 342. because mr. complaint within six years of when he reasonably should the 1996 agreement by failing to document his opf to eral claims, that he did not actually know that the navy the recovery of money damages, mr. holmes urges, a non- hewitt. the basis for the award of damages in case of breach . . . ." rality of the supreme court noted in see john r. sand & gravel co. v. united states, 457 f.3d represent a separate test and has been used inter- motion to dismiss for failure to state a claim upon which around april 2001.10 see am. compl. 58, 61. that accrual suspension rule. id. at 320. immunity for claims premised on other sources of law should have known of the breaches was in 2005, when the required to make to the lessor in l.s.s. leasing. in in a criminal case." sanders, 252 f.3d at 1334; see also navy agreed (1) to employ mr. holmes as a yeoman ages sustained."). generally, this court also has distin- state of mind when he filed the amended complaint in addition, although mr. holmes alleged that, since 2001, (citing buckhannon bd. & care home, inc. v. w. va. dep't court found that mr. holmes was on "inquiry notice" that to expunge mr. holmes's opf "within a reasonable time." because he "failed to demonstrate, or even suggest," that mental conduct on the plaintiff's property was open and to him. am. compl. 39. tucker act jurisdiction over a claim alleging breach of a am. compl. ex. b 3. holmes v. us25 mr. holmes filed suit in the united states district court and (3) to document his opf to show that he had resigned states, 166 f.3d 1184, 1188-89 (fed. cir. 1999), we held we agree with mr. holmes that he reasonably should rick's mushroom service, inc. v. united states, 521 f.3d ment agreement nor a statute allowed a suit for damages cations. 76 fed. cl. at 259. in holding that it lacked inquiry. see ingrum, 560 f.3d at 1315-16 (finding that the 2001 agreement provided for non-monetary remedies. agreement with the natural resource conservation injury was `inherently unknowable' at the accrual date." because applicants for jobs are not offered positions for a enough to put him on inquiry notice of the breaches states founded either upon the constitution, or any act of iii ments, his original complaint was filed more than six terry l. elling. tucker act.")). banc). able" standard. ingrum, 560 f.3d at 1315 n.1. we have the government contends that the court of federal agreements. frame within which the navy was required to document government breaches a contract. in short, mr. holmes employment, as well as the presumption that government cooperative agreement and not a procurement contract, 92 fed. cl. at 321. 433-34 (w.d.n.y. 2008). law for his claim in order to invoke jurisdiction under the 9 we acknowledge that at least one other circuit has plaint. 29 c.f.r. 1614.504(a). in the case of the 2001 the `inherently unknowable' prong of the accrual suspen- holmes has acknowledged, the government may be war- ruled that it lacked jurisdiction because, as mr. holmes san juan city coll. v. united states, 391 f.3d 1357, 1361 because the contract between rick's and the nrcs was a regardless of whether the parties challenge the lower ments relating to title vii1 employment discrimination in japanese war notes claimants association, receive such information. in short, given the facts set tiff hereby agrees never again to apply for employment ments do not "provide[ ] for damages as a result of a mr. holmes requested and received copies of his per- in accordance with the 1996 agreement, the navy could fairly be interpreted as contemplating money dam- ment pertains to a title vii case does not automati- on kokkonen v. guardian life insurance co. of america, statute of limitations set forth in 2501. in that regard, for personal reasons on july 22, 1994. id. 23. guished claims based upon the constitution, a statute, or damages for breach by the government. 92 fed. cl. at holmes has demonstrated entitlement to the benefit of aboard the usns mars, a naval supply ship operated by sonal reasons. he also alleged that the navy had states, 185 f.3d 1250, 1254-55 (fed. cir. 1999) ("when a the employee's remedy is enforcement of the settlement 4 the federal courts administration act of 1992, united states, 419 f.3d 1355, 1364 (fed. cir. 2005) ("like http://www.cafc.uscourts.gov/oral-argument- v. white mountain apache tribe, 537 u.s. 465, 472-73 herently unknowable" test, which has been used inter- obligations under the 1996 agreement by appointing mr. the government contends that mr. holmes was required cessful in obtaining employment, and had not been able to our court has not addressed this question, and there tain apache tribe, 537 u.s. at 473)); fisher, 402 f.3d at reference for [mr. holmes]." am. compl. 38, ex. b 3- holmes does not allege that he was denied access to his ence" that money damages were payable in event of each party shall bear its own costs. a breach. thus, simply because a settlement agree- it had not alleged an implied-in-fact contract for procure- siu and civilian supply vessel employers began conduct- cause of the navy's breaches of the 1996 and 2001 retained jurisdiction over the 2001 agreement. holmes, argues that because the agreements are express con- missal of a claim for lack of jurisdiction. adair v. united given negative and other than "neutral" references to august 17, 2009, he alleged that the navy had breached fairly be interpreted as mandating the payment of money agreements could fairly be interpreted that way. as seen, holmes v. us29 ages remedy will be available upon the may turn on the interpretation of a statute does not id. at 321. ship corp. v. united states, 372 f.2d 1002 (ct. cl. 1967), holmes v. us 28 were barred by the six-year statute of limitations set forth mr. holmes and the navy signed an agreement set- contract. holmes, 92 fed. cl. at 318 (citing united states 28 u.s.c. 2501. holmes, 92 fed. cl. at 319 n.9 (citing evidence that the navy had attempted to conceal mr. argues that the money-mandating requirement of tucker further, in its brief the government itself acknowledges the tucker act does not extend to every contract." rick's ages for breach, he did so. complaint for lack of jurisdiction pursuant to rcfc navy's alleged breach and not received any information native argument: that the agreements can fairly be inter- dant has concealed its acts with the result that plaintiff began its background checks in 2005. mr. holmes con- contract, the money-mandating requirement was met by the pertinent records were unavailable from the time of reaching that conclusion, we noted that rick's breach of 1614.504(a). without diminishing the force of this claims accrued. the government argues that the circum- agreement ("1996 agreement") to settle the second eeoc obtain any employment since 2005. id. 69-74. for the 1996 and 2001 agreements arose out of title vii litiga- must identify a contractual relationship, constitutional (fed. cir. 2004). moreover, we have stated: holmes v. us 2 agreement") to settle the eeoc action. id. 23. under favorable to the plaintiff."). and we readily accept that settlement of a title vii action monetary relief for example, a transfer from one agency california. am. compl. ex. b p.5 l. 20. the government known of the alleged noncompliance [and] may request 6 the parties do not argue that the "fair inference" clusion, that tucker act jurisdiction may be exercised in a 373 f.2d at 359)). because he was able to secure temporary employment amended complaint, the court held that mr. holmes's plied for various positions which he was otherwise mr. holmes's breach of contract claims were time-barred. to government plans and specifications is not responsible faith. see savantage fin. servs., inc. v. united states, adopted this distinction in testan, stating that where a for the western district of new york, seeking compensa- fraudulent claims. see barclay v. keystone shipping co., 340, 341-42 (fed. cir. 2009). in roberts, a former service court of federal claims, mr. holmes argues in the alter- mr. holmes also argues that the fact that he was hav- claims in case no. 09-cv-208, chief judge emily c. act right be reasonably amenable to the reading that it states, 402 f.3d 1167, 1173-74 (fed. cir. 2005) (non-en arising under the constitution, a statute, or a regulation compl. 72. according to mr. holmes, the court of occurred that fix the alleged liability of the government tract claims that turn on the construction of statutes. we reasonably amenable to the reading that it mandates a preted as mandating compensation by the [f]ederal articulation of white mountain alters or differs from the 1298, 1301 (fed. cir. 2004) (stating, in a case presenting period during which the district court retained jurisdic- dalupe between january 1997 and july 1997. am. compl. that mr. holmes's breach of contract claim was required he also alleged that, after leaving his position with the that he was entitled to the benefit of the accrual suspen- ordered consent decree exists: (1) the change in legal to 28 u.s.c. 1295(a)(3). holmes v. us5 i reached the contrary conclusion. see frahm, 492 f.3d at notice" that the navy had breached the 1996 agreement. provision, statute, or regulation that provides a substan- claims, mr. holmes was required to show that the 1996 sion of the one-year period during which the district court days of when the complainant knew or should have rise to his claim at the time of the unlawful discharge). settlement. 511 u.s. at 378-82. has not established that his injury was "inherently un- ranted in renewing its motion to dismiss for lack of juris- states, 33 fed. cl. 374, 378-80 (1995); fausto v. united that the 1996 and 2001 agreements could fairly be inter- was unaware of their existence or it must show that its 70. mr. holmes has attempted to obtain employment the accrual suspension rule. we therefore reverse the federal claims determined that even if the cda included for damages, but it triggers liability only if it "can fairly 2009, rather than during the period when he alleges the in l.s.s. leasing indicates that "application of the statute navy's breach. id. at 320 (citing am. compl. 70 and tucker act claim based upon a constitutional provision, some decisions of the court of federal claims have held navy had complied with some of its obligations under the agreements could fairly be interpreted as contemplating contract claim fell outside of the tucker act's jurisdiction the government's overtime use of a leased facility was not act jurisdiction. section 1614.504(a) provides that a as noted, under the 1996 agreement, the navy agreed to document mr. holmes's opf to show that he had graph 17 of the agreement and a handwritten note by the down for jobs, i.e., starting in 1999 due to the navy's


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