Kissi v. United States
102 Fed. Cl. 31
Fed. Cl.2011Background
- Kissi, pro se, filed a complaint (June 1, 2011) and a supplement (August 8, 2011) against SBA and DOJ seeking $100 million.
- Loans to DK & R were guaranteed with SBA involvement; SBA transferred DK & R loans to Pramco in 2000-2001 after guarantees were paid.
- A 2003 judgment against the Kissis by Pramco II, LLC arose from those loans; Kissis claim the SBA breached contracts and conspired in fraud.
- Plaintiff alleged breach of a purported contract with the SBA and fraud against SBA, DOJ, and Pramco; he claimed the SBA failed to convey marketable title.
- Defendant moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, and sought a pre-filing injunction on future filings.
- Court granted the motion to dismiss, dismissed with prejudice, and issued a pre-filing injunction barring Kissi from filing without prior court approval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kissi has Tucker Act jurisdiction for breach of contract claims | Kissi alleges a contractual arrangement with the SBA as co-guarantor. | No contract between Kissi (and DK & R) and the SBA; SBA acted as a guarantor to lenders, not a party to Kissi's contract. | Lacks jurisdiction; contract claim not sufficiently pleaded. |
| Whether the breach claim is time-barred | Breach occurred when SBA transferred loans to Pramco; claim timely under discovery rules. | Transfers occurred in 2000-2001; complaint filed in 2011, outside six-year limitations. | Time-barred; dismissal appropriate. |
| Whether Kissi's fraud claim against SBA/DOJ/Pramco states a claim | Rule 60(b) grounds based on newly discovered evidence fraud; seeks relief from Maryland judgment. | Rule 60(b) claims untimely and court cannot review Maryland judgment; cannot sue private parties in this court. | Fail to state a claim; dismissed. |
| Whether the court should preclude Kissi from filing future actions without approval | Unclear; no argument in favor of unlimited filings. | Plaintiff has a history of frivolous, abusive filings; injunction necessary. | Pre-filing injunction granted; Kissi barred from filing without court approval. |
Key Cases Cited
- Hall v. United States, 74 Fed.Cl. 391 (2006) (jurisdictional presumption and burdens in RCFC 12(b)(1) motions)
- Reynolds v. Army & Air Force Exch., 846 F.2d 746 (Fed.Cir. 1988) (preponderance of the evidence standard for jurisdiction)
- Haines v. Kerner, 404 U.S. 519 (U.S. 1972) (duty to construe pro se filings liberally)
- Alder Terrace, Inc. v. United States, 161 F.3d 1372 (Fed.Cir. 1998) (accrual and limitations in contract claims against the United States)
- Kissi v. Pramco II, LLC, 546 U.S. 808 (U.S. 2005) (principles surrounding frivolous litigation and related injunctions)
- Kissi v. Gillespie, 348 F. App’x 704 (3d Cir. 2009) (in forma pauperis ineligible after frivolous filings)
- In re Kissi, 652 F.3d 39 (D.C. Cir. 2011) (pre-filing requirements and abuse of litigation process)
- Kissi v. Pramco II, LLC, 401 F. App’x 786 (4th Cir. 2010) (frivolous filings leading to circuit injunctions)
- Kissi v. Simmons, No. 09-cv-1304, 2009 WL 2367574 (D.C. Cir. 2009) (D.C. Cir. 2009) (§ 1915(g) ineligibility to proceed in forma pauperis)
- Kissi v. Mead, 623 F. Supp. 2d 65 (D.D.C. 2009) (litigation abuse and transfer of cases among districts)