Kalos v. United States ( 2010 )


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  •                          NOTE: This disposition is nonprecedential.
    
        United States Court of Appeals for the Federal Circuit
                                             2009-5101
    
    
                                PETER KALOS and VERON KALOS,
    
                                                            Plaintiffs-Appellants,
    
                                                 v.
    
                                         UNITED STATES,
    
                                                            Defendant-Appellee.
    
    .
              Peter Kalos and Vernon Kalos, of Broad Run, Virginia, pro se.
    
               Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
        United States Department of Justice, of Washington, DC, for defendant-appellee. With
        her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
        Director, and Donald E. Kinner, Assistant Director.
    
        Appealed from: United States Court of Federal Claims
    
        Judge Margaret M. Sweeney
                          NOTE: This disposition is nonprecedential.
    
     United States Court of Appeals for the Federal Circuit
                                           2009-5101
    
                             PETER KALOS and VERON KALOS,
    
                                                    Plaintiffs-Appellants,
    
                                               v.
    
                                       UNITED STATES,
    
                                                    Defendant-Appellee.
    
    Appeal from the United States Court of Federal Claims in 08-CV-631, Judge Margaret
    M. Sweeney.
    
                               __________________________
    
                                DECIDED: March 4, 2010
                               __________________________
    
    
    Before NEWMAN, BRYSON, and PROST, Circuit Judges.
    
    Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit
    Judge NEWMAN.
    
    PROST, Circuit Judge.
    
          Peter and Veron Kalos (collectively, “Kalos”) appeal the dismissal of their
    
    amended complaint for lack of subject matter jurisdiction and failure to state a claim
    
    upon which relief can be granted. We affirm.
    
          The following facts are taken from Kalos’s complaint. Because we are reviewing
    
    the dismissal of the complaint under Rule 12(b)(1) and Rule 12(b)(6), we assume that
    
    the complaint’s well-pleaded allegations of fact are true. Bradley v. Chiron Corp., 
    136 F.3d 1317
    , 1321 (Fed. Cir. 1998). Our decision does not rely on any of the judicially
    
    noticed facts. 1
    
           Prior to filing this action, a company owned by Kalos, Brickwood Contractors
    
    (“Brickwood”), entered into a contract with the Federal Bureau of Prisons. On behalf of
    
    Brickwood, Kalos obtained a payment and performance bond from a corporation called
    
    Greenwich. The bond named Brickwood as the principal, Greenwich as the surety, and
    
    the United States as the obligee. After the Bureau of Prisons terminated its contract
    
    with Brickwood for default, it sought to collect from Greenwich on the bond. Collection
    
    on the bond was resolved by a settlement agreement between the Bureau of Prisons
    
    and Greenwich, whereby Greenwich agreed to pay the full amount of the bond in full
    
    satisfaction of its obligations. Kalos was not a party to the settlement agreement, which
    
    expressly provided that “[n]othing contained in this Agreement shall be deemed to
    
    affect, impact or modify any or all rights, claims, demands, lawsuits or other actions that
    
    Brickwood [Kalos] or the Government may have against each other.” The agreement
    
    released Greenwich and the Bureau of Prisons from any liability, actions, debts, claims
    
    or demands against each other. It further stated that the agreement did not create “any
    
    third-party beneficiaries.”
    
           After this settlement agreement was executed, Greenwich sought to recover from
    
    Brickwood by foreclosing on the liens burdening Kalos’s property, which secured the
    
    bonds. Kalos subsequently lost title to their real property in Great Falls, Virginia and
    
    Manassas, Virginia. Both before and after losing title to their property, Kalos asked the
    
    
    
           1
                  Accordingly, we need not decide if the trial court erred by relying on these
    facts and thus resolving allegedly “disputed facts” against Kalos. See Dissent at 2-3.
    
    
    
    2009-5101                                   2
    U.S. Attorney’s Office to confirm that the bonds issued by Greenwich were forgeries and
    
    to initiate criminal proceedings. The U.S. Attorney’s Office confirmed that the bonds
    
    were forgeries, but declined to open a criminal investigation.
    
           Kalos then filed this action in the U.S. Court of Federal Claims. The amended
    
    complaint states two different claims. First, Kalos alleges a taking in violation of the
    
    Fifth Amendment. According to the complaint, “[a]s a direct result of the actions of the
    
    Government, the Plaintiffs [Kalos] lost title to both of their real properties in Great Falls,
    
    Virginia and in Manassas, Virginia.”        Specifically, Kalos points to the settlement
    
    agreement between Greenwich and the Bureau of Prisons as preventing them from
    
    obtaining compensation for their lost properties. Second, Kalos alleges that the Bureau
    
    of Prisons illegally exacted $769,998, the amount Greenwich paid to the Bureau of
    
    Prisons pursuant to the settlement agreement.         According to Kalos, this settlement
    
    agreement “imposed . . . financial liability on [them] without statutory or regulatory
    
    authority to do so.” Kalos appears to argue that the Bureau of Prisons could not take
    
    any action regarding the bonds because the bonds were counterfeit, and thus entering
    
    into a settlement agreement regarding the bonds violated 18 U.S.C. § 494 and 31
    
    C.F.R. § 223.13(d).
    
           The Court of Federal Claims dismissed Kalos’s takings claim under Rule 12(b)(6)
    
    for failure to state a claim upon which relief could be granted. It found that Kalos had
    
    not—and could not—establish a “government action” that amounted to a compensable
    
    taking of their property interest. The trial court explained that the Bureau of Prison’s
    
    settlement agreement with Greenwich was not a physical invasion or regulatory action
    
    (such as a zoning ordinance) that might qualify as “government action.”
    
    
    
    
    2009-5101                                     3
           The Court of Federal Claims also dismissed Kalos’s illegal exaction claim under
    
    Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter
    
    jurisdiction. It found that Kalos failed to cite any statute or regulation that could provide
    
    a basis for their illegal exaction claim, explaining that it lacked jurisdiction over criminal
    
    matters that might be brought under 18 U.S.C. § 494, and that 31 C.F.R. § 223.10 limits
    
    the surety’s power to underwrite bonds, not the Bureau of Prison’s power to enter into
    
    settlement agreements.
    
           On appeal, Kalos argues that the Court of Federal Claims erred in multiple ways.
    
    We address each of these arguments below.
    
           First, Kalos argues that the trial court’s decision was based on an erroneous
    
    reading of the facts and improperly relied on public records. Even giving the complaint
    
    the liberal construction Kalos is entitled as a pro se litigant, dismissal was still proper.
    
    Despite the dissent’s suggestion to the contrary, this is not a suit on a surety contract,
    
    because the surety bond is not the basis for Kalos’s takings or illegal exaction claims.
    
    Cf. Dissent at 3.      Instead, the claims are based, respectively, on Greenwich’s
    
    foreclosure of its (private) lien on Kalos’s properties and on the settlement agreement
    
    between Greenwich and the government. As explained below, however, Kalos has no
    
    standing to sue the government based on either Greenwich’s foreclosure or the
    
    settlement agreement. When a complaint fails to state a cognizable claim, we cannot
    
    adjudicate the case further—we lack authority to remand the case for additional fact
    
    finding or clarification. See Kontrick v. Ryan, 
    540 U.S. 443
    , 454-55 (2004); Larson v.
    
    Correct Craft, Inc., 
    569 F.3d 1319
    , 1325 (Fed. Cir. 2009).
    
    
    
    
    2009-5101                                     4
             To allege a cognizable taking under the Fifth Amendment, a person suing for the
    
    loss of his property must show that the loss, or “taking,” was the result of government
    
    action. Air Pegasus of D.C., Inc. v. United States, 
    424 F.3d 1206
    , 1213 (Fed. Cir.
    
    2005). Kalos’s takings claim was properly dismissed because Kalos has not identified a
    
    “government action” entitling them to compensation under the Fifth Amendment.
    
    Huntleigh USA Corp. v. United States, 
    525 F.3d 1370
    , 1381-82 (Fed. Cir. 2008); see
    
    also Air Pegasus, 424 F.3d at 1215-16. Kalos’s two properties in Virginia were both
    
    sold to satisfy liens placed on the property by Greenwich, a private corporation, and
    
    purchased by private third parties, not the government. Accordingly, these sales did not
    
    involve a “physical invasion or appropriation” by the government, or a “government
    
    regulation[]” burdening the Kalos’s property. See Palmyra Pac. Seafoods, L.L.C. v.
    
    United States, 
    561 F.3d 1361
    , 1366-67 (Fed. Cir. 2009); Belk v. United States, 
    858 F.2d 706
    , 709 (Fed. Cir. 1988). Since a showing of “government action” is required, whether
    
    or not Kalos has a claim against Greenwich has no bearing on whether dismissal was
    
    proper.
    
             Similarly, the Court of Federal Claims properly dismissed Kalos’s illegal exaction
    
    claim.     As an initial matter, the trial court did not err in dismissing the claim,
    
    notwithstanding Kalos’s attempts to “delete” it by filing a second amended complaint.
    
    Because Kalos had already amended their complaint once, any subsequent
    
    amendment could only be made with the trial court’s permission.           Fed. R. Civ. P.
    
    15(a)(2). It was not an abuse of discretion to deny Kalos’s request to amend their
    
    complaint a second time, since the request would have resulted in delay, the
    
    government had already filed its motion to dismiss, and the proposed amendment would
    
    
    
    
    2009-5101                                    5
    not have cured the jurisdictional flaws in the previously-filed complaints. Cultor Corp. v.
    
    A.E. Staley Mfg. Co., 
    224 F.3d 1328
    , 1333 (Fed. Cir. 2000) (“Futility of the proposed
    
    amendment is an adequate reason to deny leave to amend.”) Accordingly, the trial
    
    court properly considered the illegal exaction claim in deciding whether to dismiss the
    
    first amended complaint.
    
            As to the substance of the illegal exaction claim, dismissal was proper because
    
    Kalos failed to identify a “statutory power” pursuant to which the $769,998 was exacted.
    
    Norman v. United States, 
    429 F.3d 1081
    , 1095-96 (Fed. Cir. 2005). To survive the
    
    government’s motion to dismiss, it was not enough for Kalos to cite 18 U.S.C. § 494 and
    
    31 C.F.R. § 223.13(d), because there is no evidence that the government relied on
    
    either to obtain the $769,998. Id. Even if Kalos were able to identify a permissible
    
    statutory authority, Kalos has still not satisfied the other requirements for making out an
    
    illegal exaction claim:   to be entitled to relief, Kalos was required to show that the
    
    $769,998 was “exacted” from them, either “directly or in effect.” Aerolineas Argentinas
    
    v. United States, 
    77 F.3d 1564
    , 1573 (Fed. Cir. 1996); see also Norman, 429 F.3d at
    
    1096.    Kalos cannot satisfy this requirement because the $769,998 was paid by
    
    Greenwich, not Kalos, pursuant to Greenwich’s settlement with the government. Thus,
    
    this payment cannot be attributed to Kalos, who was not a party to the settlement
    
    agreement or a third-party beneficiary of it.
    
            Finally, Kalos is not entitled to relief based on the other asserted “errors.” Kalos
    
    argues the Court of Federal Claims erred by 1) treating the government’s motion to
    
    dismiss the “complaint” as applying to the “amended complaint”; 2) failing to enter
    
    
    
    
    2009-5101                                       6
    default against the government pursuant to Rule 55(a); and/or 3) denying as moot
    
    Kalos’s request to file a second response to the government’s motion to dismiss.
    
           First, the trial court did not abuse its discretion by construing the government’s
    
    motion to dismiss as applying to the amended complaint, given that the amended
    
    complaint contained the same claims and substantially the same factual allegations as
    
    the original. See Fed. R. Civ. P. 12(a)(4); cf. Easter v. United States, 
    575 F.3d 1332
    ,
    
    1336 (Fed. Cir. 2009) (examining whether a party had a “reasonable opportunity” to
    
    oppose the motion to dismiss). Similarly, it was not error for the trial court to refuse to
    
    enter default under Rule 55(a), because the government “defend[ed]” by filing a motion
    
    to dismiss. See Fed. R. Civ. P. 55(a), 12(b). Finally, the trial court did not abuse its
    
    discretion by refusing to let Kalos respond a second time to the government’s motion to
    
    dismiss, since Kalos had already responded in December 2008. Cf. Easter, 575 F.3d at
    
    1336-37.
    
    
    
    
    2009-5101                                   7
                           NOTE: This disposition is nonprecedential.
    
     United States Court of Appeals for the Federal Circuit
    
    
                                            2009-5101
    
    
    
    
                              PETER KALOS and VERON KALOS,
    
                                                            Plaintiffs-Appellants,
    
                                                 v.
    
                                        UNITED STATES,
    
                                                            Defendant-Appellee.
    
    
    
    
    Appeal from the United States Court of Federal Claims in Case No. 08-CV-631, Judge
    Margaret M. Sweeney.
    
    
    NEWMAN, Circuit Judge, dissenting.
    
           This case reaches us with an odd and confused record. Mr. Kalos, proceeding pro
    
    se in the Court of Federal Claims and in this court, alleged by complaint that the United
    
    States, acting through the Bureau of Prisons, received full payment on the performance
    
    bond from the surety, Greenwich Insurance Co. The government appears to agree, for it
    
    states that it has no claim against Kalos or his company, Brickwood Contractors Inc. Yet
    
    Kalos states in his complaint that there was an improper foreclosure on the real property in
    
    Manassas and Great Falls, Virginia that he personally owned, which he had personally
    
    pledged to assure performance of the contract between his company and the Bureau of
    Prisons. He states that the property has been taken and that its value of over $4 million is
    
    several times the government’s claim for non-performance. He thus asserted claims for a
    
    Fifth Amendment taking, illegal exaction, and breach of contract. The Court of Federal
    
    Claims dismissed the complaint on the pleadings, going outside of the pleadings and into
    
    an undeveloped record to reach disputed facts, upon which my colleagues hold that Kalos
    
    cannot obtain judicial attention sufficient to explore the irrational consequences of his failed
    
    contract.
    
           The Court of Federal Claims, in its dismissal, took judicial notice of information
    
    outside of the record, such as statements in briefs filed in a bankruptcy proceeding, to
    
    contradict the allegations in Kalos’s complaint. For example, Kalos stated in his complaint
    
    that he authorized a lien of $154,000 on his Virginia property, but the Court of Federal
    
    Claims found, by footnote, that liens of $400,000 and $700,000 were placed against these
    
    properties. Kalos v. United States, 
    87 Fed. Cl. 230
    , 232 n.3. Greenwich provided two
    
    bonds, a performance bond and a payment bond. After Brickwood defaulted, Greenwich
    
    paid the full amount of the contract ($769,998), and the settlement agreement between the
    
    Bureau of Prisons and Greenwich stated that the payment is “in full satisfaction of
    
    [Greenwich’s] obligations pursuant to the performance bond.” The settlement agreement,
    
    however, left the payment bond in “full force and effect.” See Amended Compl. ¶¶51-55.
    
           Nothing in the records clarifies whether any claim has been made under the
    
    payment bond. Nonetheless, there was a foreclosure on Kalos’s property that secured
    
    both bonds, which is alleged to be worth more than $4 million and is encumbered by
    
    Greenwich’s liens for $1.1 million.      With liens for more than the full amount of the
    
    
    
    
    2009-5101                                      2
    government contract, and property value exceeding the liens, the total loss of the property,
    
    if accurately reported, warrants at least minimal judicial attention.
    
           Kalos alleges there has been a double recovery. Certainly if Greenwich only paid
    
    under the performance bond for $769,998, it should not have recovered the total amount of
    
    the liens or the total value of the property. The government remains silent. While the trial
    
    court criticized Kalos for “fail[ing] to supply supporting affidavits or correspondence” with the
    
    complaint, on a motion for dismissal on the pleadings, the facts as pleaded are accepted,
    
    and summary dismissal, leaving no recourse when injury is apparent, is not the favored
    
    process.
    
           The government contends that it has “suffered no loss on the bond” and attempts to
    
    remove itself from this dispute. The government, however, required these bonds to secure
    
    the government contract.       Moreover, surety undertakings for bonds on government
    
    contracts are three-way contracts that include the government. Of course, it is possible
    
    that the factual assertions in the complaint are inaccurate. However, the Court of Federal
    
    Claims left no opportunity for Kalos—the entity who states that he suffered adverse
    
    consequences—to sort out these events.
    
           A claim against the United States arising from a government contract and its
    
    consequences is properly brought in the Court of Federal Claims, whether viewed as
    
    arising under the Contract Disputes Act or the Fifth Amendment. Kalos is entitled to judicial
    
    attention sufficient to resolve the facts that are material to his claim.
    
    
    
    
    2009-5101                                      3