SCHALL, Circuit Judge.
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 VII
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.
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 non-conclusory 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
In 1996, after requesting and receiving a copy of his personnel record, Mr. Holmes discovered that the Navy had not complied with its obligation under the 1995 Agreement to expunge adverse information from his OPF. Id. ¶ 24. He thereupon filed a second EEOC complaint alleging breach of the 1995 Agreement. Id. ¶ 25. In November of 1996, Mr. Holmes and the Navy signed an agreement ("1996 Agreement") to settle the second EEOC action. Id. ¶ 26, Ex. A. Under the 1996 Agreement, the Navy agreed (1) to employ Mr. Holmes as a yeoman storekeeper; (2) to provide him transportation to his worksite; and (3) to document his OPF to show that he had resigned on July 22, 1994 for personal reasons. Id. ¶ 27, Ex. A ¶ 2.
In accordance with the 1996 Agreement, the Navy employed Mr. Holmes as a yeoman storekeeper aboard the USNS Guadalupe, beginning in January of 1997. Am. Compl. ¶ 28. After leaving the Guadalupe in July of 1997, Mr. Holmes served aboard the USNS Kilauea as a civilian storekeeper from September of 1997 to August of 1998. Id. ¶¶ 29, 30. Following his departure from the Guadalupe, Mr. Holmes was accused of stealing a government-owned refrigerator from his stateroom and selling it to another crew member. Id. ¶ 29. This accusation led the Navy to suspend Mr. Holmes from his job aboard the Kilauea for fourteen days. Id. ¶ 31. In response, Mr. Holmes filed a third EEOC complaint. In it, he asserted that the allegation of theft and the resulting suspension were the result of "discriminatory and retaliatory conduct against him during his service aboard the USNS Guadalupe." Id. ¶ 32.
From October of 1998 to April of 1999, while his third EEOC complaint was pending, Mr. Holmes served as a civilian storekeeper aboard the USNS Niagara Falls. Id. ¶ 34. While aboard the Niagara Falls, he was accused of threatening a fellow crew member. As a result, the ship's captain proposed to remove Mr. Holmes from his position. Id. ¶ 35. After being notified of his proposed removal, Mr. Holmes resigned from his position aboard the Niagara Falls. Id. ¶ 36. According to Mr. Holmes, shortly after he resigned, he joined the Seafarers International Union ("SIU") and obtained several temporary contract jobs aboard civilian supply vessels as a storekeeper. Id. ¶ 71.
On December 16, 1999, Mr. Holmes withdrew his third EEOC complaint. Thereafter, on February 22, 2000, he filed a civil action against the Navy in the United States District Court for the Central District of California. The suit related to, inter aha, his fourteen-day suspension while aboard the Kilauea. Id. ¶ 37, Compl. for Employment Discrimination on the Basis of Reprisal at 3, Holmes v. Danzig, No. 00-01839 (C.D.Cal. Feb. 22, 2000). The case was subsequently transferred to the United States District Court for the Northern District of California. Am. Compl. ¶ 37.
Mr. Holmes and the Navy signed an agreement settling the district court action on April 26, 2001 ("2001 Agreement"). Id. ¶ 38, Ex. B. Under the terms of the 2001 Agreement, the Navy agreed to pay Mr. Holmes $1,000 and to "take the necessary steps, within a reasonable time, to expunge from [Mr. Holmes's] Official Personnel File, the fourteen-day suspension" and "to provide the Marine Index Bureau (MIB) with a neutral reference for [Mr. Holmes]."
Mr. Holmes requested and received copies of his personnel records from the Navy in May of 2006; the records indicated that the Navy had not documented his record to show that he resigned from the Navy for personal reasons effective July 22, 1994. Id. ¶¶ 41-42. Thereafter, in 2008, Mr. Holmes filed suit in the United States District Court for the Western District of New York, seeking compensatory damages for the Navy's breach of the 1996 Agreement. Id. ¶ 53. On October 31, 2008, the district court dismissed the complaint for lack of jurisdiction, stating that Mr. Holmes's breach of contract claim was required to be filed in the United States Court of Federal Claims. Id. ¶ 56; Holmes v. Dep't of Navy, 583 F.Supp.2d 431, 433-34 (W.D.N.Y.2008).
Mr. Holmes filed suit in the Court of Federal Claims on April 9, 2009. In his amended complaint, filed on August 17, 2009, he alleged that the Navy had breached the 1996 Agreement by failing to document his OPF to reflect that he resigned from the Navy in 1994 for personal reasons. He also alleged that the Navy had breached the agreement by failing to expunge references to the circumstances of his discharge in 1994. He alleged that the Navy had breached the 2001 Agreement by failing to expunge references to the fourteen-day suspension. Am. Compl. ¶¶ 58-59, 61-64. As a result of these breaches, Mr. Holmes alleged, he had been largely unsuccessful in obtaining employment, and had not been able to obtain any employment since 2005. Id. ¶¶ 69-74. For the alleged breaches, Mr. Holmes sought monetary damages. Id. ¶ 75. The government moved to dismiss the amended complaint for lack of jurisdiction pursuant to RCFC 12(b)(1) or, alternately, for failure to state a claim pursuant to RCFC 12(b)(6). The government's jurisdictional motion made two separate arguments: (1) that Mr. Holmes had not established a money-mandating source of law for his claim in order to invoke jurisdiction under the Tucker Act; and (2) that his breach of contract claims were barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501.
The Court of Federal Claims granted the government's motion to dismiss for lack of jurisdiction, agreeing with the government that the terms of the 1996 and 2001 Agreements did not support a "fair inference" that Mr. Holmes was entitled to money damages for breach of contract. Holmes, 92 Fed.Cl. at 318 (citing United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003)). As a separate basis for its dismissal of the amended complaint, the court held that Mr. Holmes's suit, which concededly was filed more than six years after the Navy's alleged breaches, was barred by the six-year statute of limitations set forth in § 2501. In that regard,
Mr. Holmes appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
We review de novo the Court of Federal Claims's dismissal of a claim for lack of jurisdiction. Adair v. United States, 497 F.3d 1244, 1250 (Fed.Cir.2007); Frazer v. United States, 288 F.3d 1347, 1351 (Fed.Cir.2002). On appeal, Mr. Holmes challenges both (1) the Court of Federal Claims's dismissal of his amended complaint for lack of jurisdiction under the Tucker Act, and (2) its dismissal of his claims as barred by the six-year statute of limitations of 28 U.S.C. § 2501. We address the first issue in Part II and the second issue in Part III.
The Court of Federal Claims derives its jurisdiction from the Tucker Act, which, in relevant part, gives the court "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. . . ." 28 U.S.C. § 1491(a)(1). The Tucker Act does not create substantive rights. Rather, it is a jurisdictional provision "that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts)." United States v. Navajo Nation, 556 U.S. 287, 129 S.Ct. 1547, 1551, 173 L.Ed.2d 429 (2009). The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it "can fairly be interpreted as mandating compensation by the Federal Government." Id. at 1552 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). This "fair interpretation" rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126. Thus, it is enough that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. Id. at 473, 123 S.Ct. 1126. While the premise to a Tucker Act claim will not be "lightly inferred," a fair inference will do. Id. (quoting United States v. Mitchell, 463 U.S. 206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)).
In granting the government's motion to dismiss, the Court of Federal Claims stated that Mr. Holmes had failed to identify "any terms of either the 1996 Agreement or the 2001 Agreement which are reasonably amenable to a reading that supports [his] claim that he is entitled to money damages for defendant's breach." Holmes, 92 Fed.Cl. at 316. The court also stated that Mr. Holmes had not "demonstrated that there is a basis for a `fair inference' that he is entitled to money damages based on the government's breach." Id. at 318. The court concluded that neither agreement could "be fairly interpreted as mandating compensation." Id. at 321.
Mr. Holmes argues that the Court of Federal Claims's Tucker Act jurisdiction encompasses his claims that the Navy breached the 1996 and 2001 Agreements. He also argues that because the agreements are express contracts, the court erroneously imposed upon him the burden of
Like Mr. Holmes, the government takes the position that the Tucker Act's grant of jurisdiction for breach of contract claims can encompass such claims arising from Title VII settlement agreements. Appellee's Br. 51 & n. 8.
The government contends that the Court of Federal Claims properly examined whether the 1996 and 2001 Agreements were money-mandating, and that it correctly determined that Mr. Holmes had not carried his burden of establishing that the agreements supported a "fair inference" that money damages were payable in event of breach. Appellee's Br. 38-42, 48-50. The government points to the trial court's observation of "the absence of any
Before addressing the money-mandating issue, however, we must resolve the initial jurisdictional question of whether the Court of Federal Claims may exercise its Tucker Act jurisdiction over a claim alleging breach of a Title VII settlement agreement. That is so even though Mr. Holmes and the government do not dispute the point. See John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1353 (Fed. Cir.2006) ("As an appellate court, we must be satisfied that the court whose opinion is the subject of our review properly exercised jurisdiction, regardless of whether the parties challenge the lower court's jurisdiction."), aff'd, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008).
Our court has not addressed this question, and there is a split of authority on it in the Court of Federal Claims. Some decisions of the Court of Federal Claims have held that the court lacks Tucker Act jurisdiction over claims alleging breach of a Title VII settlement agreement due to the comprehensive statutory scheme established under Title VII, which assigns jurisdiction over discrimination suits to the district courts. See, e.g., Griswold v. United States, 61 Fed.Cl. 458, 464-65 (2004); Taylor v. United States, 54 Fed.Cl. 423, 425-26 (2002); Mitchell v. United States, 44 Fed.Cl. 437, 438-39 (1999); Lee v. United States, 33 Fed.Cl. 374, 378-80 (1995); Fausto v. United States, 16 Cl.Ct. 750, 752-54 (1989).
There also appears to be a split of authority among the regional circuits. In Frahm v. United States, 492 F.3d 258 (4th Cir.2007), the Court of Federal Claims had retransferred to the district court the plaintiffs claim alleging breach of a Title VII settlement agreement. It did so because it concluded that Title VII's "comprehensive and exclusive statutory scheme" precluded its exercise of jurisdiction. Id. at 261. Subsequently, the district court agreed that it had jurisdiction
We agree with the D.C. Circuit, as well as Court of Federal Claims cases which have reached a similar conclusion, that Tucker Act jurisdiction may be exercised in a suit alleging breach of a Title VII settlement agreement. We do not view Title VII's comprehensive scheme as a bar to the exercise of such jurisdiction. In Massie v. United States, 166 F.3d 1184, 1188-89 (Fed.Cir.1999), we held that a claim to enforce a contract resolving a dispute arising under the Military Claims Act fell within the Court of Federal Claims's jurisdiction, even though the agency decision out of which the dispute arose was not subject to judicial review. Likewise, in Del-Rio Drilling Programs Inc. v. United States, 146 F.3d 1358, 1367 (Fed.Cir.1998), we stated that the broad jurisdictional grant set forth in 28 U.S.C. § 1491(a)(1) does not exempt contract claims that turn on the construction of statutes. We said: "It is often necessary to interpret or apply statutory or common law principles in order to resolve contract claims, but the fact that the resolution of a contract claim may turn on the interpretation of a statute does not deprive the Court of Federal Claims of jurisdiction over that claim." Id. In Del-Rio Drilling Programs, we concluded that the plaintiffs, who sought to recover damages from the government for alleged breach of its duties under lease contracts, were entitled to sue in the Court of Federal Claims for enforcement of the contracts, even though the court might have to interpret the Tribal Consent Act or other state and federal law in order to resolve the contract claims. Id. at 1367-68. Similarly, although the 1996 and 2001 Agreements arose out of Title VII litigation, Mr. Holmes's suit for breach of contract is just that: a suit to enforce a contract with the government. See generally Kokkonen, 511 U.S. 375, 114 S.Ct. 1673. In sum, we agree with the parties and hold that settlement agreements resolving Title VII disputes are not per se beyond the Tucker Act jurisdiction of the Court of Federal Claims.
We turn now to the question of whether, in order to invoke the Tucker Act jurisdiction of the Court of Federal Claims, Mr. Holmes was required to show that the 1996 and 2001 Agreements could support a fair inference that he is entitled to the payment of money damages for breach, or was required to demonstrate that the two agreements could fairly be interpreted that way. As seen, the government contends that Mr. Holmes was required to make such a showing and that he failed to do so. Mr. Holmes argues, however, that because each of the agreements was an express contract with the government, such a showing was not necessary. He maintains that, because money damages are the presumptive remedy for
As seen, the Tucker Act provides in relevant part that the Court of Federal Claims "shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. . . ." 28 U.S.C. § 1491(a)(1). In Eastport Steamship Corp. v. United States, 372 F.2d 1002 (Ct. Cl.1967), the Court of Claims drew a distinction between claims arising under the Constitution, a statute, or a regulation and those stemming from a contract. In Eastport, the court stated that "[u]nder Section 1491 what one must always ask is whether the constitutional clause or the legislation which the claimant cites can fairly be interpreted as mandating compensation by the [f]ederal [g]overnment for the damage sustained." 372 F.2d at 1009. The court exempted from the money-mandating requirement claims "which . . . fall under another head of jurisdiction, such as a contract with the United States." Id. at 1008 n. 7. The Supreme Court subsequently adopted this distinction in Testan, stating that where a plaintiff does not "rest [its] claim[ ] upon a contract . . . [or] seek the return of money paid by [it] to the [g]overnment[, i]t follows that the asserted entitlement to money damages depends upon whether any federal statute `can fairly be interpreted as mandating compensation by the [f]ederal [g]overnment for the damages sustained.'" 424 U.S. at 400, 96 S.Ct. 948 (quoting Eastport, 372 F.2d at 1009).
The Supreme Court has shown continued support for this distinction by excluding contract claims from its subsequent discussion of the money-mandating requirement. See, e.g., White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126 ("It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages."); Mitchell, 463 U.S. at 218, 103 S.Ct. 2961 ("[F]or claims against the United States `founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department,' 28 U.S.C. § 1491, a court must inquire whether the source of substantive law can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained."). Generally, this court also has distinguished claims based upon the Constitution, a statute, or a regulation, from claims based upon a contract. See, e.g., Adair, 497 F.3d at 1250 ("When the source of such alleged right is a statute, it can only support jurisdiction if it qualifies . . . as money-mandating." (citing White Mountain Apache Tribe, 537 U.S. at 473, 123 S.Ct. 1126)); Fisher, 402 F.3d at 1173 (en banc) ("When a complaint is filed alleging a Tucker Act claim based upon a Constitutional provision, statute, or regulation, . . . the trial court at the outset shall determine . . . whether the Constitutional provision, statute, or regulation is one that is money-mandating."); Ontario Power Generation,
In our view, when referencing the money-mandating inquiry for Tucker Act jurisdiction, the cases logically put to one side contract-based claims. To begin with, "[n]ormally contracts do not contain provisions specifying the basis for the award of damages in case of breach. . . ." San Juan City Coll. v. United States, 391 F.3d 1357, 1361 (Fed.Cir.2004). Moreover, we have stated:
Sanders v. United States, 252 F.3d 1329, 1334 (Fed.Cir.2001). Thus, when a breach of contract claim is brought in the Court of Federal Claims under the Tucker Act, the plaintiff comes armed with the presumption that money damages are available, so that normally no further inquiry is required. We view this presumption as forming the likely basis for the disparate discussion of claims arising under the Constitution, a statute, or a regulation and those stemming from a contract. Put another way, in a contract case, the money-mandating requirement for Tucker Act jurisdiction normally is satisfied by the presumption that money damages are available for breach of contract, with no further inquiry being necessary.
That is not to say, however, that the existence of a contract always means that Tucker Act jurisdiction exists. A contract expressly disavowing money damages would not give rise to Tucker Act jurisdiction, and we have found Tucker Act jurisdiction lacking in the case of an agreement "entirely concerned with the conduct of the parties in a criminal case." Sanders, 252 F.3d at 1334; see also Kania v. United States, 650 F.2d 264, 268-69 (Ct.Cl.1981). In short, "[t]he government's consent to suit under the Tucker Act does not extend to every contract." Rick's Mushroom, 521 F.3d at 1343.
In Rick's Mushroom, the plaintiff brought suit in the Court of Federal Claims under the Contract Disputes Act, 41 U.S.C. §§ 601-613 ("CDA"), based upon a cost-share agreement with the Natural Resource Conservation Service ("NRCS"). The Court of Federal Claims held that because the contract between Rick's and the NRCS was a cooperative agreement and not a procurement contract, there was no basis for jurisdiction under the CDA for Rick's breach of contract claim.
We also rejected Rick's attempt to establish jurisdiction based upon an implied-in-fact contract with the NRCS. Id. at 1344. As an adjunct to its CDA claim, Rick's had alleged breach of an implied warranty under United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918), which sets forth the rule that a contractor bound to build according to government plans and specifications is not responsible for the consequences of defects in those plans and specifications. 76 Fed. Cl. at 259. In holding that it lacked jurisdiction over the alleged implied contract, the Court of Federal Claims determined that even if the CDA included the type of agreement at issue, Rick's had not pleaded the requirements of a valid contract. Id. at 260-61. Agreeing, we stated that Rick's had not pointed to a money-mandating provision that established jurisdiction for an implied-in-fact contract under § 1491(a)(1) and that Rick's could not establish jurisdiction under § 1491(a)(2) because it had not alleged an implied-in-fact contract for procurement of goods or services which would come within the CDA. Rick's Mushroom, 521 F.3d at 1344. In addition, we found jurisdiction lacking for the further reason that "this court may only find an implied-in-fact contract when there is no express contract." Id. at 1344 (citing Trauma Serv. Group v. United States, 104 F.3d 1321, 1326 (Fed.Cir.1997)).
We do not agree with Mr. Holmes that the Court of Federal Claims erred in requiring him to demonstrate that the 1996 and 2001 Agreements could fairly be interpreted as contemplating money damages for breach. Both agreements settled Title VII discrimination complaints, and we readily accept that settlement of a Title VII action involving the government could involve purely nonmonetary relief—for example, a transfer from one agency office to another.
As noted, under the 1996 Agreement, the Navy agreed to document Mr. Holmes's OPF to show that he had resigned on July 22, 1994 for personal reasons. Am. Compl. ¶ 27, Ex. A ¶ 2. Likewise, under the 2001 Agreement, the Navy agreed to "take the necessary steps, within a reasonable time, to expunge from [Mr. Holmes's] Official Personnel File, the fourteen-day
Neither do we think that the EEOC regulation to which the government points bars the exercise of Tucker Act jurisdiction. Section 1614.504(a) provides that a complainant alleging breach of an EEOC agreement "shall notify the [Equal Employment Opportunity] Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance [and] may request that the terms of settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing. . . ." 29 C.F.R. § 1614.504(a). Without diminishing the force of this regulation, we see no reason for § 1614.504(a) to preclude a suit for money damages in the event of breach that is separate from, or in addition to, the relief the regulation provides.
Finally, we need not reach the issue of whether the Court of Federal Claims has jurisdiction over consent decrees because we do not agree with the government that the 2001 Agreement is a consent decree. As the First Circuit has explained, the Supreme Court has emphasized three related factors to be used to determine if a court-ordered consent decree exists: (1) the change in legal relationship must be court-ordered, (2) there must be judicial approval of the relief vis-à-vis the merits of the case, and (3) there must be "judicial oversight and ability to enforce the obligations imposed on the parties." Aronov v. Napolitano, 562 F.3d 84, 90 (1st Cir.2009) (en banc) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604 & n. 7, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). As far as the 2001 Agreement is concerned, the Magistrate Judge retained jurisdiction for one year; yet it is clear that the parties' obligations were meant to continue past one year. The 2001 Agreement provides that "Plaintiff hereby agrees never again to apply for employment with Defendant or any agency, activity, or office under the command of Defendant, including but not limited to Military Sealift Command. . . ." Am. Compl. Ex. B ¶ 5. (emphasis added). Thus, the district court did not maintain "judicial oversight and ability to enforce the obligations imposed on the parties" because its jurisdiction lasted only for a year, while obligations under the agreement extended well beyond that period. For at least this reason, the 2001 Agreement is not a consent decree.
As noted, the Court of Federal Claims separately ruled that it lacked jurisdiction
Section 2501 states that all claims that otherwise fall within the jurisdiction of the Court of Federal Claims "shall be barred unless the petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. A cause of action first accrues when all the events have occurred that fix the alleged liability of the government and entitle the claimant to institute an action. Ingrum v. United States, 560 F.3d 1311, 1314 (Fed.Cir.2009). Generally, "[i]n the case of a breach of a contract, a cause of action accrues when the breach occurs." Alder Terrace, Inc., v. United States, 161 F.3d 1372, 1377 (Fed. Cir.1998) (quoting Mfrs. Aircraft Ass'n v. United States, 77 Ct.Cl. 481, 523, 1933 WL 1818 (1933)). Compliance with the statute of limitations is a jurisdictional requirement. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008).
In the Court of Federal Claims, Mr. Holmes took the position that the government breached the 1996 Agreement by failing to act in or around November 1996 and that it breached the 2001 Agreement by failing to act in or around April 2001.
However, as the Court of Federal Claims noted, the "accrual of a claim against the United States is suspended, for purposes of 28 U.S.C. § 2501, until the claimant knew or should have known that the claim existed." Id. at 319 (quoting Young v. United States, 529 F.3d 1380, 1384 (Fed.Cir.2008)).
The Court of Federal Claims found that there was no evidence that the Navy had attempted to conceal Mr. Holmes's records or that would support a finding that the Navy's breach of the agreements was "inherently unknowable." Holmes, 92 Fed. Cl. at 319-20. The court determined that Mr. Holmes was on inquiry notice that the 1996 Agreement had been breached as early as 1999, in view of statements in the amended complaint suggesting that he was unsuccessful in obtaining employment as early as 1999 and that he believed this was due to the Navy's breach. Id. at 320 (citing Am. Compl. ¶ 70 and Braude v. United States, 585 F.2d 1049, 1050-52 (Ct. Cl.1978)). As far as the 2001 Agreement was concerned, the court found that Mr. Holmes was on "inquiry notice" that the 2001 Agreement had been breached no later than April 26, 2002, which marked the end of the one-year period during which the district court retained jurisdiction over the agreement. Id. at 321. As further support for its finding that Mr. Holmes was on "inquiry notice" by no later than 2002, the court pointed to Mr. Holmes's statement in the amended complaint that "[b]etween 2001 and the present, [he] applied for various positions [for] which he was otherwise qualified" yet "[o]n information and belief, [he] was denied or not considered for those positions because of the Navy's breaches of the 1996 and 2001 Agreements." Id. at 320 (quoting Am. Comp. ¶ 40). Having rejected Mr. Holmes's reliance on the accrual suspension rule, the Court of Federal Claims held that Mr. Holmes's breach of contract claims were time-barred. Id. at 321.
Mr. Holmes does not contend on appeal that the Navy attempted to conceal its alleged breach of the two agreements. Instead, he argues that the breach was "inherently unknowable." He relies on L.S.S. Leasing Corp. v. United States, 695 F.2d 1359 (Fed.Cir.1982), as interpreting the "inherently unknowable" doctrine to "stand[ ] for no more than that the `statute will not begin to run until [the claimant] learns or reasonably should have learned of his cause of action.'" Id. at 1366 (citing Japanese War Notes Claimants Ass'n v. United States, 373 F.2d 356, 359 (Ct.Cl. 1967)). In L.S.S. Leasing, we held that a lessor's claim against the United States for payment for the government's overtime use of a leased facility was not partially time-barred by a prior version of 28 U.S.C. § 2501. 695 F.2d at 1366. We concluded that the lessor could recover for overtime use beyond the six-year time frame because we saw "no basis for holding that it would have been reasonable for the lessor to have discovered [that] use at an earlier date," because the government had taken control of after-hours access to the leased facility and was tasked with reporting its overtime use to the lessor. Id. Mr. Holmes contends that this court's decision in L.S.S. Leasing indicates that "application of the statute of limitations periods [sic] is dependent upon the facts of each case, and must be subjected to a test of `reasonableness.'" Reply Br. 17-20.
Mr. Holmes argues, as he did before the Court of Federal Claims, that he did not actually know that the Navy had breached its obligations under the agreements until he received copies of his OPF from the Navy in 2006. Appellant's Br. 46; Pl.'s Resp. at 4. He contends that, in any event, the earliest time at which he reasonably should have known of the breaches was in 2005, when the SIU and civilian supply
Mr. Holmes also argues that the fact that he was having some difficulty obtaining employment was not alone enough to put him on inquiry notice of the breaches because applicants for jobs are not offered positions for a multitude of reasons. This is particularly so, he urges, because he was able to secure temporary employment after he resigned from the Navy in 1999, before the SIU began its background checks in 2005. Mr. Holmes contends that the Court of Federal Claims ignored allegations in the amended complaint relating to his periods of temporary employment, as well as allegations that the Navy had complied with some of its obligations under the Agreements, by paying him $1,000 (2001 Agreement) and by employing him (1996 Agreement). In addition, he points to the July 11, 2001 letter alleged in paragraph 39 of the amended complaint. In that letter, Mr. Holmes asserts, the Navy told the Assistant United States Attorney representing the government in the Northern District of California litigation that it had expunged his OPF and asked the MIB to correct its records relating to him. Am. Compl. ¶ 39; see Oral Arg. at 13:38-14:27 & 41:39-42:15, available at http://www. cafc.uscourts.gov/oral-argument-recordings/2010-5119/all. Mr. Holmes maintains that he was not obligated to continuously monitor whether the Navy had complied with its duties under the agreements, since government officials are presumed to act in good faith. See Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1288 (Fed.Cir.2010) ("As an initial matter, government officials are presumed to act in good faith.").
The government responds that the Court of Federal Claims correctly held that Mr. Holmes failed to show that his alleged injury was "inherently unknowable" when his claims accrued. The government argues that the circumstances of this case are analogous to those in our
We agree with Mr. Holmes that the "concealed or inherently unknowable" test, which has been used interchangeably with the "knew or should have known" test, Ingrum, 560 F.3d at 1315 n. 1, includes an intrinsic reasonableness component. As the Court of Claims explained in Japanese War Notes Claimants Association,
373 F.2d at 359 (citations omitted) (emphasis added). As noted, in L.S.S. Leasing, we stated that the "inherently unknowable" test includes a reasonableness component. 695 F.2d at 1366. In L.S.S. Leasing, the court permitted the plaintiff's recovery for the government's overtime use occurring prior to the six-year limitations period, even though it appeared that nothing prevented the plaintiff lessor from discovering the use earlier. We stated that, in view of the fact that the government had taken upon itself the obligation to report overtime usage, the lessor was "relieved" of "the costly burden of monitoring such usage." Id. Accordingly, we saw "no basis for holding that it would have been reasonable for the lessor to have discovered the use at an earlier date." Id. While we have stated that the "concealed or inherently unknowable" formulation of the test for accrual suspension is "more common and more precise" than the "knew or should have known" formulation, Ingrum, 560 F.3d at 1315 n. 1, we do not view that statement as eschewing the reasonableness component of the "inherently unknowable" prong of the test. Nothing in Ingrum, or the case it cites on this point, Martinez, can be said to prohibit such a reasonableness inquiry. See Ingrum, 560 F.3d at 1315-16 (finding that the government's use of fill material from the plaintiff's property was not "inherently unknowable," where the use was open and notorious and where the plaintiff was on notice of the possibility that the government would use the fill material); Martinez, 333 F.3d at 1319 (finding that a
The 2001 Agreement required the Navy to expunge the fourteen-day suspension from Mr. Holmes's OPF and to provide the MIB with a neutral reference for him. As set forth in the amended complaint, two and a half months after the 2001 Agreement was signed, "the Navy stated in a letter to the Assistant United States Attorney handling the civil action [which led to the 2001 Agreement] that the Navy took the necessary steps to expunge Mr. Holmes's Official Personnel Folder and that the Navy requested corrections to the Marine Index Bureau pertaining to Mr. Holmes." Am. Compl. ¶ 39.
Mr. Holmes does not allege that the July 2001 letter addressed the Navy's performance
It is true that, prior to the execution of the 1996 Agreement, Mr. Holmes had requested and received a copy of his personnel record and had discovered that the Navy had failed to comply with the 1995 Agreement to expunge his record. Id. ¶ 24. We do not believe, however, that either this fact, or Mr. Holmes's unsuccessful attempts to obtain employment after the 1996 Agreement, were sufficient to reasonably put him on inquiry notice of the Navy's alleged breach of the 1996 Agreement. That is because, viewing the facts in the light most favorable to Mr. Holmes, it is reasonable to conclude that the Navy's execution of the 1996 Agreement, along with its partial performance thereof, could have provided the basis for a belief on Mr. Holmes's part that the Navy had performed its obligations under the 1996 Agreement. In view of his ability to obtain employment, the Navy's contractual promise, and his knowledge that the Navy had partially performed, we do not believe Mr. Holmes was on "inquiry notice" that the Navy had breached the 1996 Agreement. Relatedly, we do not agree with the Court of Federal Claims's reading of paragraphs 40 and 70 of the amended complaint. We agree with Mr. Holmes that these paragraphs are most properly read as stating Mr. Holmes's state of mind when he filed the amended complaint in 2009, rather than during the period when he alleges the Navy breached the 1996 and 2001 Agreements.
Finally, we think the circumstances of this case serve to distinguish it from both Roberts and Ingrum, upon which the government relies. Neither of those cases involved agreements in which the government promised to take certain action (thereby bringing into play the proposition that government officials are presumed to act in good faith), combined with indications that the promised action had been taken. Rather, those cases involved the situation in which a plaintiff simply failed to request information from the government when he could have done so (Roberts) and the situation in which the governmental conduct on the plaintiff's property was open and notorious but the plaintiff did not avail himself of the opportunity of discovering it (Ingrum).
We agree with Mr. Holmes that he reasonably should have known of the alleged breach of the 1996 and 2001 Agreements for purposes of the statute of limitations when the SIU began conducting background checks in 2005 and he was no longer being offered contract jobs. Therefore, having demonstrated entitlement to the benefit of the accrual suspension rule, and having filed his complaint within six years of when he reasonably should have known of the alleged breach, Mr. Holmes's suit is not time-barred and thus beyond the Court of Federal Claims's jurisdiction.
For the foregoing reasons, we reverse the decision of the Court of Federal Claims dismissing Mr. Holmes's amended complaint for lack of jurisdiction. The case is remanded to the Court of Federal Claims for further proceedings consistent with this opinion.
Each party shall bear its own costs.
Appellee's Br. 51.
