Kissi v. United States , 493 F. App'x 57 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID KISSI,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5025
__________________________
Appeal from the United States Court of Federal
Claims in case no. 11-CV-347, Judge Thomas C. Wheeler.
__________________________
Decided: July 23, 2012
__________________________
DAVID KISSI, of Washington, DC, pro se.
ALEX P. HONTOS, Trial Attorney, Civil Division, Com-
mercial Litigation Branch, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
DONALD E. KINNER, Assistant Director.
__________________________
KISSI v. US 2
Before NEWMAN, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Pro se appellant, David Kissi, appeals a decision of the
United States Court of Federal Claims, dismissing his
complaint for lack of subject matter jurisdiction and
failure to state a claim for which relief can be granted.
The Court of Federal Claims also enjoined Mr. Kissi from
filing further related actions in the Court of Federal
Claims absent prior court approval. For the reasons
outlined below, we affirm.
I.
Mr. Kissi and his wife were shareholders and agents
of the now-dissolved DK&R Company, Inc. (“DK&R”).
Between March 29, 1993, and May 22, 1996, The Money
Store and Key Bank, N.A., issued loans to DK&R, and the
United States Small Business Administration (“SBA”)
partially guaranteed the loans. After DK&R defaulted on
the loans, the SBA satisfied its guarantee obligations on
the loans and transferred its interest in the loans to
Pramco II, LLC (“Pramco”), which attempted to collect on
the loans from the Kissis. As a result, Mr. Kissi sued the
SBA and the United States Department of Justice (“DOJ”)
for “Loan Fraud as a Co-Guarantor, For Abusing Its Role
as a Custodian of Ammendale Trust U.S. Court Escrow
Count [sic] And For [] Taking Plaintiffs’ Assets Without
Compensation” A13. He sought $100 million in damages.
The government moved to dismiss the complaint for lack
of subject and matter jurisdiction and for failure to state a
claim. It also asked the court to enjoin Mr. Kissi from
filing any related future complaints in the Court of Fed-
eral Claims absent court permission. The Court of Fed-
eral Claims dismissed the complaint and granted the
injunction.
3 KISSI v. US
This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
II.
We review de novo whether the Court of Federal
Claims properly dismissed a complaint for lack of subject
matter jurisdiction and for failure to state a claim for
which relief may be granted. See Todd Constr., L.P. v.
United States, 656 F.3d 1306, 1310 (Fed. Cir. 2011);
Moyer v. United States, 190 F.3d 1314, 1317-18 (Fed. Cir.
1999). When reviewing a motion to dismiss pursuant to
RCFC 12(b)(1), the Court of Federal Claims assumes that
all factual allegations are true and construes "all reason-
able inferences" in the plaintiff’s favor. Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995). We review the
factual findings of the Court of Federal Claims for clear
error. See Moyer, 190 F.3d at 1318. As the plaintiff-
appellant, Mr. Kissi must establish subject matter juris-
diction by preponderant evidence. See Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1998) (internal citations omitted). If the Court of Federal
Claims determines that it lacks subject matter jurisdic-
tion, it must dismiss the claim. RCFC 12(h)(3).
Here, the Court of Federal Claims properly dismissed
Mr. Kissi’s complaint because it was time-barred. The
alleged contractual breach – the transfers of the SBA’s
interest in DK&R loans to Pramco – occurred on Decem-
ber 5, 2000, and August 7, 2001. Mr. Kissi did not file his
complaint in the Court of Federal Claims until June 1,
2011, almost ten years after the purported breach would
have accrued. See Alder Terrace, Inc. v. United States,
161 F.3d 1372, 1377 (Fed. Cir. 1998) (stating that in a
breach-of-contract case, the cause of action generally
accrues at the time of the breach). The Court of Federal
Claims lacks jurisdiction over a claim that is not filed
KISSI v. US 4
within six years after it first accrues. 28 U.S.C. § 2501.
Therefore, Mr. Kissi’s claim is time-barred.
As to Mr. Kissi’s fraud claim, the Court of Federal
Claims did not err in dismissing it. Mr. Kissi claimed
that due to his discovery of new evidence or fraud, Federal
Rule of Civil Procedure 60(b) entitled him to relief from
the judgment of a Maryland district court in favor of
Pramco. The Federal Rules of Civil Procedure are not
controlling on the Court of Federal Claims, but that
court’s analogous rule – RCFC 60(b) – allows for relief
from a final judgment in the case of, inter alia, newly
discovered evidence of fraud. However, a party seeking to
invoke RCFC 60(b) must do so no more than a year after
entry of the judgment or order or date of the proceeding.
RCFC 60(c)(1). Because Mr. Kissi seeks relief from a
judgment entered on May 29, 2003, the Court of Federal
Claims properly concluded that his fraud claim was
untimely. Even if it were not, the Court of Federal
Claims cannot review a judgment of a Maryland district
court and lacks jurisdiction over claims directed at enti-
ties other than the United States, such as Pramco.
Finally, given Mr. Kissi’s long and complicated litiga-
tion history related to the claims at issue in this appeal,
we see no error in the court’s decision to enjoin Mr. Kissi
from filing a related complaint in the court absent prior
court approval in an effort to preserve judicial resources
and deter the filing of frivolous lawsuits. See RCFC 11;
Rutledge v. United States, 72 Fed. Cl. 396, 403 (2006);
Hornback v. United States, 62 Fed. Cl. 1, 6 (2004), aff’d,
405 F.3d 999 (Fed. Cir. 2005). 1
1 According to the Court of Federal Claims, between
1999 and 2003, Mr. Kissi filed at least 20 actions related
to this litigation. From 1999 to 2011, he filed lawsuits in
the U.S. District Court of Maryland, Circuit Court of
5 KISSI v. US
We have considered Mr. Kissi’s other arguments made
on appeal and find that they provide no basis for relief.
For the foregoing reasons, the judgment of the Court of
Federal Claims is hereby
AFFIRMED
No costs.
Maryland for Anne Arundel County, Circuit Court of
Maryland for Baltimore County, Circuit Court of Mary-
land for Howard County, U.S. District Court for the
District of Columbia, U.S. Bankruptcy Court in Balti-
more, District Court of Maryland for Baltimore City, U.S.
District Court for the District of New Jersey, U.S. District
Court for the Northern District of Ohio, U.S. District
Court for the District of Delaware, U.S. Court of Appeals
for the Third Circuit, U.S. Court of Appeals for the Fourth
Circuit, and the U.S. Court of Appeals for the District of
Columbia Circuit.