Kalos v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER KALOS, VERON KALOS,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1695
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-01821-EJD, Senior Judge Edward
J. Damich.
______________________
Decided: September 6, 2018
______________________
PETER KALOS, VERON KALOS, Broad Run, VA, pro se.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN,
JR., CHAD A. READLER.
______________________
2 KALOS v. UNITED STATES
Before O’MALLEY, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Plaintiffs-Appellants Peter and Veron Kalos appeal a
decision of the U.S. Court of Federal Claims dismissing
their action to settle an account with the government
following the government’s termination of a contract with
Plaintiffs’ company. See Kalos v. United States, No. 17-
1821C, 2018 WL 912225 (Fed. Cl. Feb. 15, 2018) (“Kalos
III”). Because we agree with the Claims Court that
Plaintiffs’ action is barred by res judicata, and, in any
event, is untimely, we affirm.
BACKGROUND
Plaintiffs are the owners and guarantors of Brickwood
Contractors, Inc. In July 2003, Brickwood entered into a
contract with the Federal Bureau of Prisons (“BOP”) to
repair and repaint a water tank at a correctional facility
in Loretto, Pennsylvania. Plaintiffs acquired a payment
and performance bond for the contract from Greenwich
Insurance Company, which they secured with real proper-
ty. In September 2005, BOP terminated the Brickwood
contract for default and sought to collect from Greenwich
on the bond. In February 2008, BOP resolved its claim
against Greenwich by entering into a settlement agree-
ment pursuant to which Greenwich paid BOP nearly
$770,000. Greenwich thereafter sought recovery from
Plaintiffs, who were unable to repay in cash, leading
Greenwich to foreclose on Plaintiffs’ property.
Over the course of the next nine years, Plaintiffs filed
three actions against the government in the U.S. Court of
Federal Claims (“Claims Court”) based on the Brickwood
contract. First, in September 2008, Plaintiffs filed suit
alleging that the settlement agreement between BOP and
Greenwich led to an illegal exaction, and that the result-
ing foreclosure of Plaintiffs’ property constituted a taking
in violation of the Fifth Amendment. The Claims Court
KALOS v. UNITED STATES 3
dismissed Plaintiffs’ suit for failure to state a claim and
lack of subject matter jurisdiction, Kalos v. United States,
87 Fed. Cl. 230 (2009), and we affirmed, Kalos v. United
States, 368 F. App’x 127 (Fed. Cir. 2010) (collectively,
“Kalos I”).
Second, in August 2015, Plaintiffs filed suit alleging
that the Brickwood contract was an unsettled account
under 28 U.S.C. § 1494, which grants the Claims Court
“jurisdiction to determine the amount, if any, 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.” The court dismissed Plaintiffs’ claim as barred
by the applicable six-year statute of limitations, Kalos v.
United States, No. 15-880 C, 2016 WL 1073275, at *1
(Fed. Cl. Mar. 17, 2016), and we again affirmed, Kalos v.
United States, 670 F. App’x 714 (Fed. Cir. 2016) (per
curiam) (collectively, “Kalos II”).
Finally, in November 2017, Plaintiffs filed the present
action, again seeking “to ascertain the amount, if any, due
to the United States” under § 1494 following termination
of the Brickwood contract. Kalos III, 2018 WL 912225, at
*2. The Claims Court again dismissed the case, this time
under the doctrine of res judicata, finding that its deci-
sions in Kalos I and II, which we affirmed, barred Plain-
tiffs’ suit. See id. at *2–3. The court also found that
Plaintiffs’ claim was time-barred by the six-year statute of
limitations. See id. at *3 n.3. Plaintiffs thereafter filed a
motion for reconsideration and a request for a hearing,
which the court denied.
Plaintiffs appealed. We have jurisdiction under 28
U.S.C. 1295(a)(3).
DISCUSSION
Res judicata—also known as claim preclusion—
provides that “[a] final judgment on the merits of an
action precludes the parties or their privies from relitigat-
4 KALOS v. UNITED STATES
ing issues that were or could have been raised in that
action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.
394, 398 (1981). Res judicata applies when “(1) the par-
ties are identical or in privity; (2) the first suit proceeded
to a final judgment on the merits; and (3) the second
claim is based on the same set of transactional facts as
the first.” Ammex, Inc. v. United States, 334 F.3d 1052,
1055 (Fed. Cir. 2003) (citing Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 n.5 (1979)). We review the
Claims Court’s dismissal of a claim based on res judicata
de novo. Cunningham v. United States, 748 F.3d 1172,
1175 (Fed. Cir. 2014).
We agree with the Claims Court that Plaintiffs’ suit is
barred by res judicata. First, the parties in this action are
identical to those in Kalos I and II—Mr. and Mrs. Kalos
as plaintiffs, and the United States as defendant. See
Kalos III, 2018 WL 912225, at *3. Second, the prior
actions proceeded in the Claims Court to final judgments
on the merits, which we affirmed. Id. In Kalos I, we held
that the sale of Plaintiffs’ properties did not constitute an
impermissible taking, and that Plaintiffs failed to make
out an illegal exaction claim based on Greenwich’s settle-
ment with BOP. Kalos I, 368 F. App’x at 130–31. We
therefore affirmed the Claims Court’s dismissal for failure
to state a claim of Plaintiffs’ takings claim, as well as the
court’s dismissal for lack of subject matter jurisdiction of
Plaintiffs’ illegal exaction claim. Id. The dismissal for
failure to state a claim constitutes a final judgment on the
merits. See Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679,
686 (Fed. Cir. 1992).
In Kalos II, we held that Plaintiffs’ “near ten-year
wait to file suit” was untimely and barred by the statute
of limitations. Kalos II, 670 F. App’x at 715. This, too,
constitutes a final judgment on the merits. See Hornback
v. United States, 85 F. App’x 758, 761–62 (Fed. Cir. 2004)
(per curiam) (“[T]he dismissal of a claim as barred by the
statute of limitations . . . is considered a judgment on the
KALOS v. UNITED STATES 5
merits for purposes of claim preclusion.”); McColpin v.
United States, 867 F.2d 615 (Table) (Fed. Cir. 1989) (per
curiam) (applying res judicata where previous suit “was
dismissed for lack of jurisdiction by reason of passage of
the six-year statute of limitations of 28 U.S.C. § 2501”).
Finally, Plaintiffs’ claim here is based on the same set of
transactional facts as the 2008 and 2015 actions. All
three cases involve the Brickwood contract and the set-
tlement agreement between BOP and Greenwich. See
Kalos III, 2018 WL 912225, at *3. We presume that “all
claims arising out of the same contract constitute the
same claim for purposes of res judicata.” Phillips/May
Corp. v. United States, 524 F.3d 1264, 1273 (Fed. Cir.
2008).
All three prongs being satisfied, we see no error in the
Claims Court’s decision applying res judicata to the facts
here. Watson v. United States, 349 F. App’x 542, 544
(Fed. Cir. 2009) (per curiam) (“We agree with the govern-
ment that res judicata bars Mr. Watson’s claims before
the Claims Court because he again seeks jurisdiction
under § 1494 for the same parties and claims.”). 1
1 Plaintiffs also appear to challenge the Claims
Court’s denial of their motion for reconsideration. To
prevail on a motion for reconsideration under Rule 59 of
the U.S. Court of Federal Claims, the movant must identi-
fy an intervening change in controlling law, the availabil-
ity of previously unavailable evidence, or that granting
the motion would prevent manifest injustice. See Parsons
ex rel. Linmar Prop. Mgmt. Tr. v. United States, 174 F.
App’x 561, 563 (Fed. Cir. 2006). We review the Claims
Court’s order denying Plaintiffs’ motion for an abuse of
discretion. Id. Here, Plaintiffs fail to demonstrate that
any of the limited grounds for reconsideration apply in
this case. In fact, in denying Plaintiffs’ motion, the
Claims Court found that Plaintiffs “added no new evi-
6 KALOS v. UNITED STATES
We also agree with the Claims Court that, to the ex-
tent it had jurisdiction over Plaintiffs’ § 1494 claim, 2 that
claim was time-barred. See Kalos III, 2018 WL 912225, at
*3 n.3. Plaintiffs filed their complaint in November 2017,
more than twelve years after BOP terminated the Brick-
wood contract and more than nine years after BOP and
Greenwich settled their dispute. Plaintiffs’ suit is there-
fore barred by 28 U.S.C. § 2501’s six-year statute of
limitations period, just as it was in Kalos II. See Kalos II,
670 F. App’x at 715 (holding that Plaintiffs’ claim accrued
no later than July 2008 and that Ҥ 1494 does not toll the
six-year statute of limitations under § 2501”).
CONCLUSION
We have considered Plaintiffs’ remaining arguments
and find them unpersuasive. For the reasons stated
above, we affirm the Claims Court’s decision.
AFFIRMED
COSTS
No costs.
dence or law[]” to the case. J.A. 5. The court did not
abuse its discretion by denying Plaintiffs’ motion.
2 Because the Claims Court found that the case was
barred by res judicata, it did not address the govern-
ment’s argument that the court lacked jurisdiction over
Plaintiffs’ § 1494 claim. See Kalos III, 2018 WL 912225,
at *2 & n.1.