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No. 15-880 C

Filed: March 17,2016

NOT TO BE PUBLISHED

*,*** ***,* *****++* ***+:f * * *** * **** *** *t **,i,1. MAR 1 7 2016

U.S. COURT OF

FEDERAL CLAIMS

PETER and VERNON KALOS.

Plaintiffs, pro se,

THE UNITED STATES,

Delendant.

* * * * * * * * * * * * * * * * * * * * * * * * * * *,t * * * * * * * * * * r{. :*

Peter Kalos and Vernon Kalos, Broad Run, Virginia, pro sc.

Ida Nassar, United States Department of Justice, Civil Division, Washington, D.C., Counsel for

the Govemment.

MEMORANDUM OPINION AND FINAL ORDER CONCERNING THE

GOVERNMENT'S MOTION TO DISMISS

BRADEN, Judge.

I. RELEVANT F'ACTUAL BACKGROUND.'

On July 25, 2003, the Federal Bureau of Prisons ("FBOP") awarded Brickwood

Contractors, Inc. ("Brickwood") Contract No. J202802c-11to repair and repaint a 500,000-gallon

water storage tank at the Federal Conectional Institution in Loretto, Pennsylvania. Compl. Ex. 'l .

Brickwood failed to perform the contractual obligations and the FBOP terminated the contract for

default on September 15, 2005. Compl. Ex. 3. The FBOP requested that Brickwood accept a noI The relevant facts cited herein are derived from: the August 14,2015 Complaint

("Compl."); attached Exhibits ("Compl. Exs. l-{"); and the Exhibits attached to the Government's

October 16,2015 Motion to Dismiss ("Gov't Mot. Exs. A{"). See Moyer v. United States,190

F.3d 1314, 1318 (Fed. Cir. 1999) ("Fact-finding is proper when considering a motion to dismiss

where the jurisdictional facts in the complaint . . . are challenged.").

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fault termination and a no-cost settlement, but Brickwood declined. Compl. !J'!l 7, 9, l3*14. The

FBOP did not sue Brickwood's owners, Peter and Vernon Kalos, but filed a performance bond

claim against the Greenwich Insurance Company2 ("Greenwich"). Compl. |T!f 8-, 19, Exs. 3-q.

Greenwich had three options: (l) pay the FBOP $770,000, the amount of the performance

bond; (2) hire a new contractor to complete the contract for less than $770,000; or (3) allow the

FBOP to find a replacement contractor and cover the difference. Compl. Ex. 4. On February 1,

2008, after failing to find a replacement contractor, Greenwich signed a Settlement Agreement and

agreed to pay the FBOP the full amount of the performance bond. Compl. Exs. 2, 4. The

Settlement Agreement, however, did not prevent Greenwich from recovering damages from third

parties, including Peter and Vemon Kalos, who secured the performance bond with real property.

Gov't Exs. A{. Although Greenwich demanded cash collateral from the Kaloses, they ignored

that request. Compl. Ex. 4. In response, Greenwich foreclosed on the real property. Compl. fl 5,

Ex. 2; Gov't Exs. A-C.

Thereafter, Brickwood filed suit against the Government in the United States Court of

Federal Claims seeking to convert the Termination For Default to a Termination for Convenience

Of The Govemment. Compl. fl 14, Ex. 5. Peter and Vemon Kalos also wrote three letters, dated

March 3, 2010, March 30, 2010, and April 6,2010, to the Contracting Officer, seeking a final

decision of their claims for "damages arising lrom [the Govemment's] execution of [the February

l, 2008] Settlement Agreement and Release Contract with [Greenwich]." Gov't Ex. A; see also

Compl. fl 17, Ex. 6. In those letters, the Kaloses claimed that they incurred a collective loss of

over $8,000,000, because the Govemment settled a counterfeit performance bond with Greenwich.

Gov't Ex. B. On May 12,2010, the Contracting Officer denied Plaintiffs' request for damages,

because "[t]he [United States] Court of Federal Claims has dismissed these claims, see Peter Kabs

and Vernon Kalos v. United States, No. 08-631 C. [There is] no need to issue a [Contracting

Officer's Final Decisionl." Compl. Ex 6.

IL PROCEDURALHISTORY.

On August 14,2015, Peter and Vemon Kalos ("Plaintiffs") filed a second Complaint in the

United States Court of Federal Claims asking the "[c]ourt to declare Contract No. J20802c-011

ended on September 15, 2005 with no money due to the United States of America." ("Compl.")

Compl.'li 21. On October 16,2015, the Government filed a Motion To Dismiss ("Gov't Mot."),

pursuant to Rules 12(b)(1) and l2(b)(6) of the Rules ofthe United States Court ofFederal Claims

(.'RCFC). On November 10, 201 5, Plaintiffs responded by filing a Motion To Strike Defendant's

Motion To Dismiss and a Motion For Judgment ("Pls.' Mot.";.r On November 25,2015, the

2 There is some confusion about whether Brickwood's surety was Greenwich or the United

States Surety Company C'USSC'). According to the Govemment, USSC and Greenwich share

the same address, and USSC, acting as Greenwich's agent, executed the liens on Plaintiffs'

property. Gov't Mot. at 3, n.2. Therefore, this Memorandum Opinion refers to the surety as

Greenwich.

3 Pursuant to RCFC l2(f), a motion to strike must be directed at a pleading. RCFC 12(0.

In this case, Plaintiffs' November 10, 2015 Motion To Strike does not comport with RCFC l2(0,

because it is directed at the Govemment's October 16,2015 Motion To Dismiss, which is not a
Govemment filed an Opposition To Plaintiffs' Motion To Strike Defendant's Motion To Dismiss,

Plaintiffs' Motion for Judgment, And A Reply In Support Of Motion To Dismiss.

On December 11, 2015, Plaintiffs filed a Reply to Defendant's Opposition to Plaintiffs'

Motion to Strike Defendant's Motion to Dismiss, a Motion for Judgment, And A Reply In Support

Of Motion To Dismiss ("Pls.' Reply").

On February 16,2016, Plaintiffs also filed a Motion for Default Judgment Or Summary

Judgment. On February 29,2016,the Govemment filed a Motion ("Mot. To Stay") requesting the

court to stay briefing on Plaintiffs' February 16, 2016 Motion For Default Judgment, until the court

resolved the Govemment's October 16,2015 Motion To Dismiss. Gov't Mot. To Stay at l. On

March 16,2016, Plaintiffs filed a Response To The Govemment's February 29, 2016 Motion.

III. DISCUSSION.

A. Jurisdiction.

A challenge to the United States Court ofFederal Claims'"general power to adjudicate in

specific areas ofsubstantive law . . . is properly raised by a [Rule] 12(bxl) motion[.]" Palmer v.

UnitedStqtes,l68 F.3d 1310, 1313 (Fed. Cir. 1999);see aiso RCFC 12(bX1) ("Every defense to

a claim for relief in any pleading must be asserted in the responsive pleading . . . . But a party may

assert the following defenses by motion: (1) lack ofjurisdiction over the subject matter[.]"). When

considering whether to dismiss an action for lack of subject matter jurisdiction, the court is

"obligated to assume all factual allegations ofthe complaint to be true and to draw all reasonable

inferences in plaintiff s favor." Henke v. United states,60F.3d795,797 (Fed. Cir. 1995).

Pursuant to 28 U.S.C $ 1494, the United States Court of Federal Claims has jurisdiction to

determine amounts due "to or from the United States by reason of any unsettled account of any

officer or agent of, or contractor with, the United States, or a guarantor of any

such. .. contractor." 28 U.S.C $ 1494. The basis of this jurisdiction originally was enacted as

Section Three of the Tucker Act, ch. 359,24 Stat. 505 (1887). See Standard Dredging

Co. v. United States,Tl Ct. CL.218,239 (1930) (explaining that Section Three ofthe Tucker Act

was enacted "to provide for the speedy disposition of claims by the United States against its

officers and agents, and against those having contracts with it, by giving to such persons the right

to come into this court and compel the United States to answer and have its claim determined").

1. The Government's Argument.

The Govemment argues that the court does not have jurisdiction for three reasons: (1)

Plaintiffs are not proper persons to maintain the action and have not shown they have an unsettled

"pleading." The court, however, is cognizant of the obligation to construe pro se documents

liberally. See Estellev. Gamble,429U.S.97,106(1976). Therefore, the court will consider the

Plaintiffs' November 10, 2015 Motion To Strike as a Response to the Government's Motion To

Dismiss.
account; (2) the statute of limitations, under 28 U.S.C. $ 2501, time-bars the August 14,2015

Complaint; and (3) res judicata bars the August 14, 2015 Complaint. Gov'tMot. at8.

First, the Plaintiffs are not officers, agents, or contractors with the United States or a

guarantor of any such contractor. Gov't Mot at 8-9. Even though the August 1,4,2015 Complaint

alleges that Plaintiffs were guarantors of a government contractor, it did not provide "facts

supporting [this] conclusory statement." Gov't Mot. at 9. Moreover, even if Plaintiffs established

they are guarantors of a contract, there is no unsettled account between the United States and a

contractor in this case, as required by 28 U.S.C. g 1494. Gov't Mot. at 9. The August 14,2015

Complaint alleges that the contract remains unsettled, because the Govemment declined Plaintiffs'

request for a Contracting Officer's Final Decision about an alleged claim for damages. Gov't Mot.

at 9. That request, however, reargued claims that the United States Court of Federal Claims

resolved and the United States Court ofAppeals for the Federal Circuit affirmed many years ago.

Gov't Mot at 8 (citing Kalos v. United States, No. 08-631 C (Fed. Cl. April 27 ,2009), aff'd, 368

F. App'x 127,129 (Fed. Cir.2010)).

Second, under 28 U.S.C. $ 2501, a suit against the Government is time-baned, unless it is

filed within the six-year statute of limitations period. Gov't Mot. at 10-11. In this case, the statute

of limitations began to nrn when the Government terminated the contract with Brickwood on

September 15,2005. Gov'tMot.at11. The August 14,2015 Complaint was filed nearly ten years

after September 15, 2005 and over eight years after Brickwood first filed suit against the

Government in the United States Court of Federal Claims. Gov't Mot. at 11-12 (citing Brickwood

Contractors Inc. v. United Stales, No. 06-695,2009 WL 426214 (Fed. Cl. Feb. 20, 2009)).

Finally, res judicata bus the August 14,2015 Complaint, because "[a] final judgment on

the merits ofan action precludes the parties or their privities from relitigating issues that were or

could have been raised in that action." Gov't Mot. at 12 (citing Simons v. United States,74Fed.

CL.709,713 (2006). Plaintiffs' current claim involves the same parties and originates out ofthe

same set oftransactional facts as the claim in Kalos v. United Stcttes,8T Fed. Cl. 230.233 Q009\

aff'd,368F. App'x 127 (Fed. Cir. 2010), and became final when the United States Court ofFederal

Claims dismissed the 2008 Complaint and the United States Court of Appeals for the Federal

Circuit affrrmed that decision. Gov't Mot. at 12.

2. Plaintiffs'Response.

Plaintiffs respond that the court does have jurisdiction, because the August 14, 2015

Complaint (1) satisfies all of the pleading requirements of 28 U.S.C. g 1a9a; (2) was filed in a

timely manner; and (3) is not barred by res judicata. Pls.' Mot. at 2.

First, according to Gerdingv. United States,28 Ct. Cl. 531 (1893), the United States Court

ofFederal Claims has jurisdiction whenever any person presents a claim alleging that he is or has

been indebted to the United States as an officer, agent, or by virtue of any contract with such

person. PIs.'Mot. at4. The August 14,2015 Complaint alleges that "Plaintiffs are guarantors of

Brickwood," a company that entered into a government contraot with the FBOP on July 25,2003.

Compl. flfl 3-4. The August 14, 2015 Complaint also alleges that Plaintiffs asked the FBOP to

settle Contract No. J20802c-11, but, the FBOP did not. Compl. flfl 17-18, Ex. 6. Because the

agency terminated the contractor's right to proceed, then failed to reach an agreement settling the
contract, Plaintiffs became indebted for amounts due under the contract, and subiect to 28 U.S.C.

$ 1494. Pls.'Reply at 5.

Second, the August 14, 2015 Complaint is "not barred by the statute of limitations." Pls.'

Mot. at 2. Statute of limitations under 28 U.S.C. $ 2501 does not apply to claims brought by

persons "acting separately under 28 U.S.C. $ 1494." Pls.' Reply at 5.

Third,, res judicala also does not bar the Plaintiffs' claims, because the August 14,2015

Complaint satisfied all ofthe pleading requirements in 28 U.S.C. g 1494, and, therefore, should be

allowed to proceed. Pls.' Reply at 4. Plaintiffs maintain that the final outcome on other contract

claims do not affect the court's jurisdiction. Pls.' Reply at 5

3. The Court's Resolution.

As a threshold matter, "le]very claim of which the United States Court of Federal Claims

has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim

first accrues." 28 U.S.C. $ 2501. The statute of limitations set forth in 28 U.S.C. g 2501 is a

"jurisdictional" requirement. See San Carlos Apache Tribe v. United States,639 F.3d 1346,1349

(Fed. Cir. 201 1). A cause of action against the Government accrues "when all the events which

fix the [G]ovemment's alleged liability have occurred and the plaintiff was or should have been

aware oftheir existence." Hopland Bond of Pomo Indians v. United States,855 F.2d 1573,1577

(Fed. Cir. 1988) (emphasis omitted). Moreover, "[t]he question whether the pertinent events have

occuned is determined under an objective standard; a piaintiff does not have to possess actual

knowledge of all the relevant facts in order for the cause of action to accrue." Fallini v. United

States,56 F.3d 1378, 1380 (Fed. Cir. 1995).

Section 1494 of the Judicial Code And Judiciary Act does not toll the six-year statute of

limitations. See Bianchi v. United States, 68 Fed. CL 442, 455 (2005) affd in relevant part, 475

F.3d 1268 (Fed. Cir. 2007) ("[I]f [S]ection 1494 were to be interpreted as [Plaintiffl suggests, as a

broad provision that prevented him from bringing his claim for three years on an 'unsettled

account' or potentially unpaid account, the statute of limitations on any claim against the

government would effectively be nine years by adding the three years in [S]ection 1494 and the

six years permitted in [S]ection 2501. This would render the six-year statute of limitations period

meaningless.").

In this case, the statute of limitations accrued when the FBOP terminated the contract with

Brickwood on September 15,2005. Compl.fl6. This is more than ten years before Plaintiffs filed

the August 14,2015 Complaint. In addition, even if the statute of limitations did not accrue until

the Govemment entered into the Settlement Agreement with Greenwich, the claim is still untimely.

Gov't Ex. C at 3 (In a letter to the Contracting Officer, Peter Kalos admitted, "ln July 2008, the

[FBOP] revealed it signed a Settlement Agreement and Release contract with the United States

Surety Company.'). Plaintiffs were aware of the Settlement Agreement in July 2008, so that, the

statute of limitations would have run by July 2014. Therefore, the August 14,2015 Complaint is

untimely. Because the August 14, 201 5 Complaint is barred by the statute of limitations, the court

need not address the parties' remaining arguments.
IV. CONCLUSION.

For these reasons, the Government's Ootob€r 16,2015 Motion to Dismiss is GRANTED.

Other pending motions now are moot. The Clerk is directed to dismiss Plaintiffs' August 14,2015

Complaint.

IT IS SO ORDERED.

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