Holmes v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

TIMOTHY O. HOLMES,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2010-5119
__________________________

Appeal from the United States Court of Federal
Claims in Case No. 09-CV-208, Chief Judge Emily C.
Hewitt.
____________________________

Decided: September 12, 2011
____________________________

JAMES Y. BOLAND, Venable LLP, of Washington, DC,
argued for plaintiff-appellant. With him on the brief was
TERRY L. ELLING.

RICHARD P. SCHROEDER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington DC, argued for defendant-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and HAROLD D. LESTER, JR., Assistant Director.
__________________________
HOLMES v. US 2

Before PROST, SCHALL, and MOORE, Circuit Judges.
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 agree-
ments relating to Title VII 1 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 juris-
dictionally 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 set-
tlement 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

1 Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.
3 HOLMES v. US

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 com-
plaint (“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 hon-
orably discharged in December of 1990 after twelve years
of military service. Am. Compl. ¶ 13. He was subse-
quently 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 com-
plaint with the United States Equal Employment Oppor-
tunity Commission (“EEOC”) alleging that he had been
wrongfully terminated due to “false, malicious, and dis-
criminatory 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 discipli-
nary action taken against him during his employment;
HOLMES v. US 4

and (3) to document his OPF to show that he had resigned
for personal reasons on July 22, 1994. Id. ¶ 23.
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 Guada-
lupe, 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 Guada-
lupe.” Id. ¶ 32.
5 HOLMES v. US

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 alia, his fourteen-day suspension
while aboard the Kilauea. Id. ¶ 37, Compl. for Employ-
ment 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 set-
tling 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 reason-
able time, to expunge from [Mr. Holmes’s] Official Per-
sonnel File, the fourteen-day suspension” and “to provide
the Marine Index Bureau (MIB) with a neutral reference
for [Mr. Holmes].” 2 Id., Ex. B ¶¶ 2-4. Pursuant to para-

2 The MIB compiles data pertaining to claims by
employees in the maritime industry in an effort to detect
HOLMES v. US 6

graph 17 of the agreement and a handwritten note by the
Magistrate Judge at the bottom of the agreement, the
district court retained jurisdiction for one year “for the
purposes of resolving any dispute alleging a breach of [the
2001 A]greement.” Id., Ex. B ¶ 17, p.5 ll.20-21; see
Holmes, 92 Fed. Cl. at 314, 320-21. On July 11, 2001, the
Navy stated in a letter to the Assistant United States
Attorney handling the civil action that the Navy had
taken the steps necessary to expunge Mr. Holmes’s OPF
and that it had asked the MIB to correct its records
relating to Mr. Holmes. Am. Compl. ¶ 39.
Mr. Holmes requested and received copies of his per-
sonnel 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 compensa-
tory damages for the Navy’s breach of the 1996 Agree-
ment. 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).
II
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 per-
sonal reasons. He also alleged that the Navy had

fraudulent claims. See Barclay v. Keystone Shipping Co.,
128 F. Supp. 2d 237, 241 n.7 (E.D. Pa. 2001).
7 HOLMES v. US

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 suspen-
sion. Am. Compl. ¶¶ 58-59, 61-64. As a result of these
breaches, Mr. Holmes alleged, he had been largely unsuc-
cessful 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 pursu-
ant 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 govern-
ment’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
(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,
the court ruled that Mr. Holmes was not entitled to the
benefit of the accrual suspension rule. Id. at 320-21.
Having dismissed the amended complaint for lack of
jurisdiction, the court did not reach the government’s
HOLMES v. US 8

motion to dismiss for failure to state a claim upon which
relief could be granted.
Mr. Holmes appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I
We review de novo the Court of Federal Claims’s dis-
missal 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.
II
A
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 Consti-
tution, 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 oper-
ate[s] to waive sovereign immunity for claims premised on
other sources of law (e.g., statutes or contracts).” United
States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009).
The other source of law need not explicitly provide that
the right or duty it creates is enforceable through a suit
9 HOLMES v. US

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 (1976)). This “fair interpreta-
tion” 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. 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. While the
premise to a Tucker Act claim will not be ‘‘lightly in-
ferred,” a fair inference will do. Id. (quoting United States
v. Mitchell, 463 U.S. 206, 218 (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 gov-
ernment’s breach.” Id. at 318. The court concluded that
neither agreement could “be fairly interpreted as mandat-
ing 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 con-
tracts, the court erroneously imposed upon him the bur-
den of demonstrating a “fair inference” that the terms of
the agreements entitle him to money damages. He main-
tains that such a burden does not exist when a Tucker Act
claim is “founded . . . upon any express or implied contract
with the United States,” 28 U.S.C. § 1491(a)(1), because
HOLMES v. US 10

money is the presumptive remedy for breach of contract.
In the absence of contract terms specifically precluding
the recovery of money damages, Mr. Holmes urges, a non-
breaching party is entitled to such damages when the
government breaches a contract. In short, Mr. Holmes
argues that the money-mandating requirement of Tucker
Act jurisdiction was satisfied by the very nature of his
suit – an action for breach of two Title VII settlement
agreements – and that the Court of Federal Claims erred
when it required him to identify “separate” money-
mandating provisions in the agreements. As he did in the
Court of Federal Claims, Mr. Holmes argues in the alter-
native that, assuming he was required to show that the
agreements could fairly be interpreted as contemplating
money damages for breach, he carried that burden.
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. 3 It argues, however, that the 1996 and 2001 Agree-
ments do not “provide[ ] for damages as a result of a
breach” and that therefore, the Court of Federal Claims
lacks jurisdiction. Appellee’s Br. 52 n.8. In making this

3 The government states:
We recognize that the Court of Federal Claims
possesses jurisdiction over a claim where plaintiff can
establish a substantive right enforceable against the
United States for money damages. It is the Govern-
ment’s position that this includes a Title VII settle-
ment agreement providing for damages as a result of
a breach. Thus, simply because a settlement agree-
ment pertains to a Title VII case does not automati-
cally mean that the Court of Federal Claims lacks
jurisdiction.
Appellee’s Br. 51.
11 HOLMES v. US

argument, the government points to Navajo Nation,
Rick’s Mushroom Service, Inc. v. United States, 521 F.3d
1338 (Fed. Cir. 2008), and Khan v. United States, 201
F.3d 1375 (Fed. Cir. 2000). See Navajo Nation, 129 S. Ct.
at 1551-52 (“Neither the Tucker Act nor the Indian
Tucker Act creates substantive rights; they are simply
jurisdictional provisions that operate to waive sovereign
immunity for claims premised on other sources of law
(e.g., statutes or contracts). . . . 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.” (citations and
internal quotations omitted) (first emphasis added));
Rick’s Mushroom, 521 F.3d at 1343-44 (“Rick’s does not
point to a money-mandating provision that establishes
jurisdiction for an implied-in-fact contract under 28
U.S.C. § 1491(a)(1) . . . .”); Khan, 201 F.3d at 1377-78
(“[T]o invoke jurisdiction under the Tucker Act, a plaintiff
must identify a contractual relationship, constitutional
provision, statute, or regulation that provides a substan-
tive right to money damages.” (citing Hamlet v. United
States, 63 F.3d 1097, 1101 (Fed. Cir. 1995))).
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 infer-
ence” 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 provision mandating the payment of money for a
breach by the government.” Holmes, 92 Fed. Cl. at 317.
In addition, it urges that both the 1996 Agreement and
the 2001 Agreement provided for non-monetary remedies.
HOLMES v. US 12

Specifically, according to the government, the EEOC
regulation at 29 C.F.R. § 1614.504(a) provided Mr.
Holmes with a way to obtain non-monetary relief, namely
(1) compliance or (2) reinstatement of the original com-
plaint. 29 C.F.R. § 1614.504(a). In the case of the 2001
Agreement, the government argues that the agreement is
actually a consent decree because it was approved and “so
ordered” by the district court in the Northern District of
California. Am. Compl. Ex. B p.5 l. 20. The government
makes the argument that, as a consent decree, the Court
of Federal Claims lacked jurisdiction to enforce its terms.
B
Before addressing the money-mandating issue, how-
ever, 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 (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
13 HOLMES v. US

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). 4 However, relying
on Kokkonen v. Guardian Life Insurance Co. of America,
511 U.S. 375 (1994), 5 other Court of Federal Claims
decisions have found such settlement agreements to fall
outside the comprehensive scheme of Title VII and to be
within the jurisdiction of the court. See Westover v.
United States, 71 Fed. Cl. 635, 638-39 (2006); see also
Taylor v. United States, 73 Fed. Cl. 532, 541-45 (2006).
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 plaintiff’s claim
alleging breach of a Title VII settlement agreement. It
did so because it concluded that Title VII’s “comprehen-
sive and exclusive statutory scheme” precluded its exer-
cise of jurisdiction. Id. at 261. Subsequently, the district
court agreed that it had jurisdiction because the plaintiff’s
claim arose under Title VII, but ultimately denied a
motion by the plaintiff for monetary damages. Frahm v.
United States, No. 2-CV-00089, 2005 WL 1528421, at *2-3
(W.D. Va. June 23, 2005). The Fourth Circuit affirmed.
Frahm, 492 F.3d at 262-63. The D.C Circuit, however,
has concluded that the Court of Federal Claims does have
Tucker Act jurisdiction over these “straightforward con-

4 The Federal Courts Administration Act of 1992,
Pub. L. No. 102-572, § 902(a), 106 Stat. 4506, 4516,
changed the name of the United States Claims Court to
the United States Court of Federal Claims. Wilner v.
United States, 24 F.3d 1397, 1398 n.1 (Fed. Cir. 1994) (en
banc).
5 In Kokkonen the Supreme Court distinguished ac-
tions based on a settlement agreement from an action
under a law whose alleged violation gave rise to the
settlement. 511 U.S. at 378-82.
HOLMES v. US 14

tract dispute[s].” See Greenhill v. Spellings, 482 F.3d 569,
575 (D.C. Cir. 2007); see also Hansson v. Norton, 411 F.3d
231, 232, 237 (D.C. Cir. 2005) (“Because Hansson’s claim
for attorney’s fees neither requires an interpretation of
Title VII with respect to her discrimination complaint nor
seeks equitable relief under Title VII, but rather seeks
reasonable attorney’s fees defined by well-established
standards, it is a contract claim against the United States
for more than $10,000 . . . [and] within the exclusive
jurisdiction of the Court of Federal Claims under the
Tucker Act.”)).
We agree with the D.C. Circuit, as well as Court of
Federal Claims cases which have reached a similar con-
clusion, 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 con-
tract 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 con-
cluded that the plaintiffs, who sought to recover damages
from the government for alleged breach of its duties under
15 HOLMES v. US

lease contracts, were entitled to sue in the Court of Fed-
eral 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 litiga-
tion, 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. 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.
C
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 agree-
ments was an express contract with the government, such
a showing was not necessary. He maintains that, because
money damages are the presumptive remedy for breach of
contract, the money-mandating requirement was met by
the very nature of his suit – an action for breach of con-
tract. In other words, he contends that he was not bur-
dened with any fair inference or fair interpretation
requirement. 6 Alternatively, he contends that, assuming

6 The parties do not argue that the “fair inference”
articulation of White Mountain alters or differs from the
“fair interpretation” articulation, see Fisher v. United
HOLMES v. US 16

he was required to demonstrate that the agreements
could fairly be interpreted as contemplating money dam-
ages for breach, he did so.
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 Steam-
ship 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 inter-
preted 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 stat-
ute ‘can fairly be interpreted as mandating compensation
by the [f]ederal [g]overnment for the damages sustained.’”
424 U.S. at 400 (quoting Eastport, 372 F.2d at 1009).

States, 402 F.3d 1167, 1173-74 (Fed. Cir. 2005) (non-en
banc portion), and we view any distinction to be irrelevant
in this case.
17 HOLMES v. US

The Supreme Court has shown continued support for
this distinction by excluding contract claims from its
subsequent discussion of the money-mandating require-
ment. See, e.g., White Mountain Apache Tribe, 537 U.S. at
472 (“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 (“[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 dam-
ages sustained.”). Generally, this court also has distin-
guished 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 Moun-
tain Apache Tribe, 537 U.S. at 473)); 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, Inc. v. United States, 369 F.3d
1298, 1301 (Fed. Cir. 2004) (stating, in a case presenting
three types of claims, that “claims alleging the existence
of a contract between the plaintiff and the government
fall within the Tucker Act’s waiver”); Tippett v. United
States, 185 F.3d 1250, 1254-55 (Fed. Cir. 1999) (“When a
contract is not involved, to invoke jurisdiction under the
Tucker Act, a plaintiff must identify a constitutional
provision, a statute, or a regulation that provides a sub-
stantive right to money damages.”).
HOLMES v. US 18

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:
[I]n the area of government contracts, as
with private agreements, there is a pre-
sumption in the civil context that a dam-
ages remedy will be available upon the
breach of an agreement. Indeed, as a plu-
rality of the Supreme Court noted in
United States v. Winstar Corp., 518 U.S.
839, 116 S.Ct. 2432, 135 L.Ed.2d 964
(1996), “damages are always the default
remedy for breach of contract.” Id. at 885,
116 S.Ct. 2432 (plurality opinion) (citing,
e.g., Restatement (Second) of Contracts §
346, cmt. a (1981)).
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 in-
quiry 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 pre-
sumption that money damages are available for breach of
contract, with no further inquiry being necessary.
19 HOLMES v. US

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 agree-
ment “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. 7 Rick’s Mushroom Serv.,
Inc. v. United States, 76 Fed. Cl. 250, 258 (2007). It
therefore dismissed the complaint and Rick’s appealed.
We affirmed the dismissal. Rick’s Mushroom, 521 F.3d at
1348. We agreed with the Court of Federal Claims that
Rick’s cost-share agreement with the NRCS was not a
procurement contract and that therefore the CDA was
inapplicable to the agreement and could not provide a
basis for jurisdiction under § 1491(a)(2). Id. at 1344. In
reaching that conclusion, we noted that Rick’s breach of
contract claim fell outside of the Tucker Act’s jurisdiction
because the unique cost-share agreement at issue “d[id]
not provide a substantive right to recover money-damages

7 The Court of Federal Claims has jurisdiction over
CDA claims pursuant to 28 U.S.C. § 1491(a)(2).
HOLMES v. US 20

and Rick’s d[id] not point to a money-mandating source of
law to establish jurisdiction under 28 U.S.C. § 1491(a)(1),”
and “[i]nstead, Rick’s attempt[ed] to rely on the CDA . . .
to establish jurisdiction under 28 U.S.C. § 1491(a)(2). Id.
at 1343.
We also rejected Rick’s attempt to establish jurisdic-
tion 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 (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 specifi-
cations. 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 procure-
ment 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 inter-
preted as contemplating money damages for breach. Both
agreements settled Title VII discrimination complaints,
21 HOLMES v. US

and we readily accept that settlement of a Title VII action
involving the government could involve purely non-
monetary relief – for example, a transfer from one agency
office to another. 8 Under these circumstances, in this
case, we think it was proper for the court to require a
demonstration that the agreements could fairly be inter-
preted as contemplating money damages in the event of
breach. That said, we do agree with Mr. Holmes’s alter-
native argument: that the agreements can fairly be inter-
preted as contemplating such damages. The Court of
Federal Claims therefore has jurisdiction over Mr.
Holmes’s breach of contract claims.
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 Agree-
ment, the Navy agreed 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 . . . with a neutral
reference for [Mr. Holmes].” Am. Compl. ¶ 38, Ex. B ¶¶ 3-
4. We think that, in the context of the two agreements,
the purpose of documenting and expunging Mr. Holmes’s
record clearly was to prevent Mr. Holmes from being
denied future employment based on his record as the
Navy maintained it prior to the agreements. In short, the
agreements inherently relate to monetary compensation
through relationship to Mr. Holmes’s future employment.

8 Indeed, we note that money damages appear not
to be the routine remedy for the breach of a settlement
agreement involving an employment dispute. Typically,
the employee’s remedy is enforcement of the settlement
terms or rescission of the settlement agreement and
reinstatement of the underlying action. See, e.g., Harris
v. Brownlee, 477 F.3d 1043, 1047 (8th Cir. 2007).
HOLMES v. US 22

Further, there is no language in the agreements indicat-
ing that the parties did not intend for money damages to
be available in the event of breach.
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] Direc-
tor, 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. 9
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

9 We acknowledge that at least one other circuit has
reached the contrary conclusion. See Frahm, 492 F.3d at
262-63 (affirming the district court’s denial of a motion for
monetary damages and stating that neither the settle-
ment agreement nor a statute allowed a suit for damages
and that § 1614.504(a) provided the exclusive remedy for
alleged breach of a Title VII settlement agreement).
23 HOLMES v. US

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 (2001)).
As far as the 2001 Agreement is concerned, the Magis-
trate 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 “Plain-
tiff 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 main-
tain “judicial oversight and ability to enforce the obliga-
tions imposed on the parties” because its jurisdiction
lasted only for a year, while obligations under the agree-
ment extended well beyond that period. For at least this
reason, the 2001 Agreement is not a consent decree.
III
A
As noted, the Court of Federal Claims separately
ruled that it lacked jurisdiction because, as Mr. Holmes
acknowledged, his complaint was filed more than six
years after the Navy allegedly breached the two agree-
ments, and because the court determined that he was not
entitled to the benefit of the accrual suspension rule.
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.
HOLMES v. US 24

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)). Compliance with the statute of
limitations is a jurisdictional requirement. John R. Sand
& Gravel Co. v. United States, 552 U.S. 130, 133-34
(2008).
In the Court of Federal Claims, Mr. Holmes took the
position that the government breached the 1996 Agree-
ment 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. 10 See Am. Compl. ¶¶ 58, 61. That
meant that, in the case of each agreement, Mr. Holmes’s
suit, which was first filed on April 9, 2009, was filed
outside the six-year limitations period, as it was filed over
twelve years after the alleged breach of the 1996 Agree-
ment and approximately eight years after the alleged
breach of the 2001 Agreement, or, as the Court of Federal
Claims noted, approximately seven years after the conclu-
sion of the one-year period during which the district court
retained jurisdiction over the 2001 Agreement. Holmes,
92 Fed. Cl. at 321.
However, as the Court of Federal Claims noted, the
“accrual of a claim against the United States is sus-
pended, for purposes of 28 U.S.C. § 2501, until the claim-
ant knew or should have known that the claim existed.”
Id. at 319 (quoting Young v. United States, 529 F.3d 1380,

10 The 1996 Agreement did not set forth a time
frame within which the Navy was required to document
Mr. Holmes’s OPF to indicate that he had resigned for
personal reasons. The 2001 Agreement required the Navy
to expunge Mr. Holmes’s OPF “within a reasonable time.”
Am. Compl. Ex. B ¶ 3.
25 HOLMES v. US

1384 (Fed. Cir. 2008)). 11 For the accrual suspension rule
to apply, the plaintiff “must either show that the defen-
dant has concealed its acts with the result that plaintiff
was unaware of their existence or it must show that its
injury was ‘inherently unknowable’ at the accrual date.”
Young, 529 F.3d at 1384 (quoting Martinez v. United
States, 333 F.3d 1295, 1319 (Fed. Cir. 2003) (en banc)). 12
In the Court of Federal Claims, Mr. Holmes acknowledged
that, in the case of both the 1996 and the 2001 Agree-
ments, his original complaint was filed more than six
years after the government’s breach. He argued, though,
that he was entitled to the benefit of the accrual suspen-
sion rule. Pl.’s Resp. to Def.'s Mot. to Dismiss First Am.
Compl. (“Pl.’s Resp.”) at 3-6, Holmes v. United States, No.
09-208C (Fed. Cl. Dec. 2, 2009).
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 un-
knowable.” 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 suggest-
11 As the Court of Federal Claims observed, the ac-
crual suspension rule is distinct from equitable tolling,
which the Supreme Court has stated is precluded under
28 U.S.C. § 2501. Holmes, 92 Fed. Cl. at 319 n.9 (citing
John R. Sand & Gravel, 552 U.S. at 132-39).
12 Although it is sometimes stated that accrual of a
claim against the United States will be suspended until
the claimant “knew or should have known” that the claim
existed, we have explained that this formulation does not
represent a separate test and has been used inter-
changeably with the “concealed or inherently unknow-
able” standard. Ingrum, 560 F.3d at 1315 n.1. We have
endorsed the latter standard as preferable, however,
because it is “both more common and more precise.” Id.
HOLMES v. US 26

ing 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 jurisdic-
tion 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.
B
Mr. Holmes does not contend on appeal that the Navy
attempted to conceal its alleged breach of the two agree-
ments. Instead, he argues that the breach was “inher-
ently unknowable.” He relies on L.S.S. Leasing Corp. v.
United States, 695 F.2d 1359 (Fed. Cir. 1982), as inter-
preting 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 Japa-
nese 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
27 HOLMES v. US

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 ‘reasonable-
ness.’” Reply Br. 17-20.
Mr. Holmes argues, as he did before the Court of Fed-
eral 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 vessel employers began conduct-
ing background checks and he was no longer offered
contract jobs. See Appellant’s Br. 46-49, 51-52; Am.
Compl. ¶ 72. According to Mr. Holmes, the Court of
Federal Claims misconstrued the allegations in the
amended complaint to mean that he believed the Navy
had breached the agreements at the time he was turned
down for jobs, i.e., starting in 1999 due to the Navy’s
breach of the 1996 Agreement, and in 2001 due to the
Navy’s breach of the 2001 Agreement. Instead, Mr.
Holmes argues, paragraphs 40 and 70 in the amended
complaint were merely assertions that he “only now
believes that the Navy’s breaches caused him damages as
early as 1999” and he “did not state or otherwise imply in
HOLMES v. US 28

the complaint that he believed or suspected at the time
that the Navy’s breaches were causing him harm.” Appel-
lant’s Br. 46. Contrary to the court’s findings, Mr. Holmes
argues that these paragraphs do not indicate that he was
on “inquiry notice” prior to 2005 that the 1996 and 2001
Agreements had been breached. 13
Mr. Holmes also argues that the fact that he was hav-
ing 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 con-
tends that the Court of Federal Claims ignored allega-

13 The paragraphs of the Amended Complaint to
which the Court of Federal Claims pointed read as fol-
lows:
40. Between 2001 and the present, Mr. Holmes ap-
plied for various positions which he was otherwise
qualified [sic]. On information and belief, Mr. Holmes
was denied or not considered for these positions be-
cause of the Navy’s breaches of the 1996 and 2001
Agreements.
...
70. Mr. Holmes has attempted to obtain employment
multiple times since 1999, but has largely been un-
successful because his personnel record retained by
the Navy contained unfavorable employment infor-
mation that discouraged potential employers from
hiring him. Moreover, on information and belief, rep-
resentatives of the Military Sealift Command have
given negative and other than “neutral” references to
prospective employers.

Am. Compl. ¶¶ 40, 70.
29 HOLMES v. US

tions 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 Attor-
ney 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 mat-
ter, 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 circum-
stances of this case are analogous to those in our unpub-
lished decision in Roberts v. United States, 312 F. App’x
340, 341-42 (Fed. Cir. 2009). In Roberts, a former service
member discovered an injury upon receipt of his military
service records almost 40 years after his discharge from
the Army. We held that the former service member could
not receive the benefit of the accrual suspension rule
because he “failed to demonstrate, or even suggest,” that
the pertinent records were unavailable from the time of
his discharge until 2004, and that his injury thus was
HOLMES v. US 30

“inherently unknowable.” Id. at 342. Because Mr.
Holmes does not allege that he was denied access to his
OPF and because Mr. Holmes had difficulty obtaining
employment as early as 1999, the government argues, he
has not established that his injury was “inherently un-
knowable.” See also Ingrum, 560 F.3d at 1315 & n.1, 1317
(concluding that the plaintiff’s claims were not inherently
unknowable because the government’s actions on the
plaintiff’s property were open and notorious, even though
the plaintiff’s property was located several hundred miles
from his residence, poor road conditions kept him from
visiting the property using a southern route, and access-
ing his property from a northern route required seven to
nine additional hours of driving). The government argues
that L.S.S. Leasing is distinguishable because the con-
tract at issue in that case included a reporting obligation
not present in either the 1996 or 2001 Agreements.
C
We agree with Mr. Holmes that the “concealed or in-
herently unknowable” test, which has been used inter-
changeably with the “knew or should have known” test,
Ingrum, 560 F.3d at 1315 n.1, includes an intrinsic rea-
sonableness component. As the Court of Claims explained
in Japanese War Notes Claimants Association,
An example of [an inherently unknowable injury]
would be when defendant delivers the wrong type
of fruit tree to plaintiff and the wrong cannot be
determined until the tree bears fruit. In this
situation the statute will not begin to run until
plaintiff learns or reasonably should have learned
of his cause of action.
73 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.
31 HOLMES v. US

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 discov-
ered the use at an earlier date.” Id. While we have stated
that the “concealed or inherently unknowable” formula-
tion 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 compo-
nent 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 former service member was barred from proceeding with
his suit for unlawful discharge, where he was not un-
aware of the existence of his injury and the acts giving
rise to his claim at the time of the unlawful discharge).
Further, in its brief the government itself acknowledges
that the “inherently unknowable” test includes a reason-
ableness component. See Appellee’s Br. 17 (“Pursuant to
the ‘inherently unknowable’ prong of the accrual suspen-
sion doctrine, in certain narrow circumstances, the stat-
ute of limitations ‘will not begin to run until plaintiff
learns or reasonably should have learned of his cause of
HOLMES v. US 32

action.’” (quoting Japanese War Notes Claimants Ass’n,
373 F.2d at 359)).
D
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 Agree-
ment] 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 per-
taining to Mr. Holmes.” Am. Compl. ¶ 39. 14 Thus, ac-
cording to Mr. Holmes, very shortly after the 2001
Agreement was signed, the Navy, whose officials are
presumed to act in good faith, see Savantage Financial
Services, 595 F.3d at 1288, affirmatively stated that steps
necessary for the Navy to comply with its obligations
under the agreement had been taken. In the context of
this case, we view the Navy’s statement as no less compel-
ling than the overtime reports that the government was
required to make to the lessor in L.S.S. Leasing. In
addition, although Mr. Holmes alleged that, since 2001,

14 As the Court of Federal Claims noted, Mr. Holmes
did not attach a copy of this letter to his amended com-
plaint, nor did he argue before the court that the letter
should result in some type of tolling of the statute of
limitations. Holmes, 92 Fed. Cl. at 321 n.13. However,
construing all facts in the amended complaint in Mr.
Holmes’s favor, as we must, see Samish Indian Nation,
419 F.3d at 1364, we assume that this letter declared
what Mr. Holmes alleges: that the Navy stated that it had
taken the necessary steps to expunge his OPF and that it
had requested that the MIB correct its records pertaining
to him. Am. Compl. ¶ 39.
33 HOLMES v. US

he had been denied positions for which he was qualified,
he also alleged that, after leaving his position with the
Navy in 1999, and before the SIU began conducting
background checks in 2005, he was able to secure some
maritime employment. Am. Compl. ¶¶ 40, 71, 72. Fur-
ther, because Mr. Holmes received different information
from the Navy and Military Sealift Command in response
to different requests, see id. ¶¶ 41-42, 49-52, 54-55, it
seems that he could have checked his OPF after the
Navy’s alleged breach and not received any information
about the alleged breach, only to check again later and
receive such information. In short, given the facts set
forth in the amended complaint, including (i) the Navy’s
contractual promise, (ii) its affirmative statement in the
July 2001 letter, and (iii) Mr. Holmes’s ability to obtain
employment, as well as the presumption that government
officials act in good faith, we are not prepared to say that,
as far as the “inherently unknowable” standard is con-
cerned, Mr. Holmes acted unreasonably in not double-
checking the Navy’s contract performance earlier. We
thus disagree with the Court of Federal Claims that Mr.
Holmes was under a duty to inquire as to whether the
Navy had breached the 2001 Agreement.
Mr. Holmes does not allege that the July 2001 letter
addressed the Navy’s performance under the 1996
Agreement, but the alleged breach of this earlier agree-
ment was in the same stream of events as the alleged
breach of the 2001 Agreement. Further, according to the
amended complaint, the Navy partially complied with its
obligations under the 1996 Agreement by appointing Mr.
Holmes as a yeoman storekeeper aboard the USNS Gua-
dalupe between January 1997 and July 1997. Am. Compl.
¶ 28. Moreover, as noted, after leaving the Navy in 1999
Mr. Holmes was able to obtain several temporary contract
jobs. Id. ¶ 71.
HOLMES v. US 34

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 at-
tempts 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 para-
graphs 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 prom-
ised action had been taken. Rather, those cases involved
the situation in which a plaintiff simply failed to request
35 HOLMES v. US

information from the government when he could have
done so (Roberts) and the situation in which the govern-
mental 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 bene-
fit 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. 15
CONCLUSION
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. 16

15 Our holding is based solely on the allegations set
forth in the amended complaint. After discovery, as Mr.
Holmes has acknowledged, the government may be war-
ranted in renewing its motion to dismiss for lack of juris-
diction due to the statute of limitations, should evidence
suggest that, in fact, Mr. Holmes knew or reasonably
should have known of the Navy’s alleged breach at an
earlier date. See Oral Arg. at 44:39-46:03, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/2010-5119/all.
16 Our holding that the Court of Federal Claims has
jurisdiction does not address whether Mr. Holmes’s suit is
subject to dismissal on the merits under RCFC 12(b)(6)
HOLMES v. US 36

REVERSED and REMANDED
COSTS
Each party shall bear its own costs.

for failure to state a claim upon which relief could be
granted. See e.g., Adair, 497 F.3d at 1251; Fisher, 402
F.3d at 1175-76 (non-en banc portion).