Kalos v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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PETER KALOS, VERON KALOS,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
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2016-2224
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Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00880-SGB, Judge Susan G.
Braden.
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Decided: November 9, 2016
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PETER KALOS, Broad Run, VA, pro se.
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 represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER.
______________________
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Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
PER CURIAM.
Peter and Veron Kalos (“Appellants”) appeal a deci-
sion from the United States Court of Federal Claims
(“Claims Court”) dismissing their complaint as time
barred. We affirm.
BACKGROUND
Appellants are the owners and guarantors of Brick-
wood Contractors, Inc. (“Brickwood”). On July 25, 2003,
the Federal Bureau of Prisons (“BOP”) awarded Contract
No. J202802c-11 to Brickwood to repair and repaint a
water storage tank at the Federal Correctional Institution
in Loretto, Pennsylvania. The BOP terminated the con-
tract on September 15, 2005 because Brickwood failed to
adequately perform its contractual obligations. After
terminating the contract, the BOP sought compensation
from Brickwood’s surety, Greenwich Insurance Company
(“Greenwich”). Greenwich paid the BOP $770,000 to
resolve the dispute. Greenwich then sought repayment
from Brickwood and its guarantors, the Appellants.
Brickwood’s performance bond with Greenwich was
secured with real property owned by the Appellants.
When Brickwood was unable to repay Greenwich in cash,
Greenwich foreclosed on Appellants’ real property.
On August 14, 2015, Appellants filed suit against the
United States in the Claims Court, seeking a declaration
that Contract No. J202802c-11 terminated on September
15, 2005 with no money due to the government. Appel-
lants contend Greenwich would not have foreclosed on
their real property had the government not terminated
the contract with cause. The government moved to dis-
miss, arguing among other things that Appellants’ com-
plaint was time-barred under 28 U.S.C. § 2501. The
Claims Court granted the motion, holding that Appellants
KALOS v. US 3
failed to bring suit within six years after their claim first
accrued. Appellants moved for reconsideration, and the
Claims Court denied the motion. Appellants appeal. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
The Claims Court lacks jurisdiction to hear claims
“unless the petition thereon is filed within six years after
such claim first arises.” 28 U.S.C. § 2501. A claim arises
“when all the events have occurred which fix the liability
of the Government and entitle the claimant to institute an
action.” FloorPro, Inc. v. United States, 680 F.3d 1377,
1381 (Fed. Cir. 2012); see Bianchi v. United States, 475
F.3d 1268, 1274 (Fed. Cir. 2007). Whether the Claims
Court possesses jurisdiction over a claim is a question of
law we review de novo. FloorPro, 680 F.d at 1381.
Appellants seek a declaration that Contract
No. J202802c-11 terminated on September 15, 2005 with
no money due to the government. Their claim accrued on
September 15, 2005, the day the contract was terminated.
Appellants did not file the underlying lawsuit until Au-
gust 14, 2015, nearly ten years later. This falls outside
the Claims Court’s six-year jurisdictional window. See id.
Even if the statute of limitations did not accrue until the
BOP settled with Greenwich, Appellants’ claim is still
untimely because that settlement occurred by at least
July 2008.
Appellants contend that despite their near ten-year
wait to file suit, the Claims Court has jurisdiction under
28 U.S.C. § 1494. However, § 1494 does not toll the six-
year statute of limitations under § 2501. See Bianchi v.
United States, 68 Fed. Cl. 442, 453–55 (2005), aff’d in
relevant part 475 F.3d 1268 (Fed. Cir. 2007). Therefore,
the Claims Court lacked jurisdiction to hear Appellants’
claim and properly granted the government’s motion to
dismiss.
4 KALOS v. US
CONCLUSION
The order from the United States Court of Federal
Claims is affirmed.
AFFIRMED
COSTS
No costs.