# 0Rt$!NAr

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 atthe 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 no

## I The relevant facts 

### cited herein are derived 

### from: theAugust 

### 14,2015 Complaint 

### ("Compl."); attached Exhibits ("Compl. Exs.

## l-{"); and the Exhibits attached tothe 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

. . .arechallenged."). 

# Xn tbe 

# @nrte[

# $tutes @ourt of

# Jfelers[ @lsfms
FILEDfault termination and a no-cost settlement, but Brickwood 

### declined. Compl. !J'!l7,

### 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 hadthree options:

### (l) pay the FBOP $770,000, the amount of the performance bond; (2) hire a new contractor

### to complete the contract 

### for lessthan $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 tofind a replacement contractor, Greenwich signed aSettlement Agreement and agreed

### to paythe FBOP the

### full amount 

### of the performance 

### bond. Compl. Exs. 2,

## 4. The SettlementAgreement, 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 cashcollateral 

### 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 seekingto convert theTermination For Default to aTermination 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 oftheir 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 claimedthatthey incurred a collective loss

### of over $8,000,000, because the Govemment settled acounterfeit 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 hasdismissed 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.
OnAugust 14,2015, Peter andVemon 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 duetothe 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

2There 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 Pursuantto RCFC 

### l2(f), a motion tostrike must be directed at a 

### pleading. RCFC 12(0. Inthis case, 

### Plaintiffs' November 10, 2015 

### Motion To Strike does not comport

### with RCFC 

### l2(0, because

### it is directed atthe

### Govemment's October 16,2015 

### Motion To Dismiss, which is not aGovemment 

### filed anOpposition To 

### Plaintiffs' Motion To Strike Defendant's 

### Motion To Dismiss,



### Plaintiffs' Motion for Judgment, And 

### A Reply In Support 

### Of MotionTo 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 

### MotionTo 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 thecourt 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 tothe 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
aclaim for relief in any pleading must be asserted in the responsive pleading

. . .

## . But aparty 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 betrue 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 orfromthe 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 theTucker

### 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 theAugust 14, 2015 

### Complaint. 

### Gov'tMot. at8. First, the 

### Plaintiffs are 

### not officers, agents, 

### or contractors

### with the 

### United States

### or a guarantorof any such contractor. 

### Gov't Mot at

### 8-9. Even though theAugust 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 

### inthis 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 aContracting

### Officer's Final Decision about analleged claimfor damages. 

### Gov't Mot. 

### at

## 9. That request, however, reargued claims that the 

### United States 

### Court 

### of Federal Claims resolved and the United StatesCourt 

### 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 istime-baned, unless 

### it is filed within the six-year statute of limitations 

### period. Gov't Mot. at 

### 10-11. Inthis case,the statute 

### of limitations began

### to nrn when 

### the Government terminated the contract 

### with Brickwood on September 

### 15,2005. 

### Gov'tMot.at11. TheAugust 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] finaljudgment on the merits

### ofan action precludes the parties ortheir 

### 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 asthe claim 

### in Kalosv. 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

### thatthe 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 aclaim allegingthat he is or has been indebted 

### to the 

### United States as an 

### officer, agent, 

### or 

### byvirtue 

### 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 onJuly 

### 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,thenfailed to reach an agreement settling thecontract, 

### Plaintiffs became indebted for amounts due underthe contract, and subiectto 28 U.S.C.

$ 1494. 

### Pls.'Reply at 5. Second, theAugust 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 thatthe

### final outcome on other contract claims do not affect the court's 

### jurisdiction. Pls.' Reply at 5 

# 3. The

### Court's Resolution. As athreshold matter, 

### "le]very claim 

### of which the United StatesCourt 

### of FederalClaims has

### jurisdiction shall be barred unless the petition thereon is

### filedwithin six years after suchclaim 

### 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 andthe

### 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 theJudicial Code

### And Judiciary 

### Act does not

### toll thesix-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 1494were 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.").
Inthis 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 SettlementAgreement with Greenwich, theclaim isstill untimely. 

### Gov't Ex. C at3 

### (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, sothat, the statute 

### of limitations would have run byJuly

### 2014. Therefore, theAugust 14,2015 Complaint is 

### untimely. Because the August 14, 201 5 Complaint is barred by the statute of limitations, thecourt need not addressthe parties' remaining arguments.

# IV. CONCLUSION.

Forthese reasons, the Government's Ootob€r 16,2015 

### Motionto Dismiss is

### GRANTED. Other pending motions now are 

### moot. The Clerk isdirected to dismiss 

### Plaintiffs' August 14,2015 Complaint. 

### IT IS SO 

### ORDERED.

6