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                                                             No. 15-880 C
                                                        Filed: March 17,2016
                                                       NOT TO BE PUBLISHED                 FILED
*,*** ***,* *****++* ***+: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
                                                                                              'l
water storage tank at the Federal Conectional Institution in Loretto, Pennsylvania. Compl. Ex. .
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: 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.").
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.

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