Montano Electrical Contractor v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MONTANO ELECTRICAL CONTRACTOR,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5133
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00435-CFL, Judge Charles F.
Lettow.
______________________
Decided: April 13, 2015
______________________
J OSE A. MONTANO, Madison, AL, pro se.
BARBARA E. T HOMAS , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by J OYCE R. BRANDA, ROBERT E. K IRSCHMAN, J R., BRIAN A.
MIZOGUCHI.
______________________
Before CHEN, BRYSON , and HUGHES , Circuit Judges.

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MONTANO ELECTRICAL CONTRACTOR v. US 2
P ER CURIAM .
Jose Montano appeals from the final decision of the
United States Court of Federal Claims (Claims Court)
granting the Government’s motion to dismiss for lack of
jurisdiction and denying Mr. Montano’s motion to trans-
fer. Montano Electrical Contractor v. United States, 114
Fed. Cl. 675 (2014). We affirm.
BACKGROUND
In 1999, the Army Corps of Engineers (the Corps)
awarded a contract to American Renovation & Construc-
tion Company (ARC) for the design and construction of
family housing at Redstone Arsenal in Huntsville, Ala-
bama. ARC then subcontracted the electrical work on the
project to Mr. Montano. At some point, ARC apparently
defaulted on its contract with the Corps, which resulted in
ARC’s surety, St. Paul Mercury Insurance Company (St.
Paul), assuming ARC’s obligations under the contract and
arranging for Soltek Pacific (Soltek) to complete the
project as completion contractor. As part of this transi-
tion, Mr. Montano’s subcontract was assigned to Soltek
and Mr. Montano continued to perform under the subcon-
tract.
Thereafter, Mr. Montano filed a claim with St. Paul,
seeking payment for electrical work he performed at
Redstone Arsenal. After St. Paul rejected this claim, Mr.
Montano repeatedly sought assistance from the contract-
ing officer at the Corps. Each time, the contracting officer
explained that he was unable to provide the requested
assistance because Mr. Montano did not have a contract
with the government, and thus the government was not a
party to the dispute. The contracting officer also ex-
plained that Mr. Montano should pursue any such claim

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MONTANO ELECTRICAL CONTRACTOR v. US 3
against the prime contractor under the Miller Act, 40
U.S.C. § 3133.1
In response, Mr. Montano filed a request with the
Armed Services Board of Contract Appeals (ASBCA)
seeking assistance resolving his contract matter. The
ASBCA docketed Mr. Montano’s request as an appeal and
dismissed the appeal for lack of subject matter jurisdic-
tion.
Mr. Montano then filed an action in the Claims Court
seeking monetary relief from the government for the
money owed on his subcontract. In addition, Mr. Montano
asserted that the government was liable for the tortious
conduct of the contracting officer. Specifically, Mr. Mon-
tano asserted that the contracting officer breached his
purported duty to inform Mr. Montano of his cause of
action against the prime contractor under the Miller Act
before the limitations period expired. The Claims Court
concluded that it lacked jurisdiction over Mr. Montano’s
contract claim because he was not in privity with the
government. The Claims Court also determined that it
lacked jurisdiction over Mr. Montano’s tort claim because
claims brought under the Federal Tort Claims Act (FTCA)
are expressly excluded from the Claims Court’s jurisdic-
tion. Finally, the Claims Court concluded that it could
not transfer Mr. Montano’s FTCA claim because Mr.
1 The Miller Act requires a Government contractor
to post a payment bond “for the protection of all persons
supplying labor and material in the prosecution of the
work provided for” in the contract. 40 U.S.C. § 3131(b)(2).
The Act then provides that a person who has furnished
labor or material under that contract—i.e., a subcontrac-
tor—and has not been paid in full within 90 days after the
last labor was performed, may initiate a law suit in feder-
al district court on the payment bond for the unpaid
amount. 40 U.S.C. § 3133.

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MONTANO ELECTRICAL CONTRACTOR v. US 4
Montano had failed to file an administrative claim and
therefore no district court could exercise jurisdiction over
the claim. The present appeal followed. We have juris-
diction under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review a dismissal for lack of subject matter juris-
diction de novo. Brandt v. United States, 710 F.3d 1369,
1373 (Fed. Cir. 2013). Although we generally review a
decision by the Claims Court not to transfer a matter
under 28 U.S.C. § 1631 for abuse of discretion, the under-
lying determination that no transferee court would pos-
sess jurisdiction over the matter is reviewed de novo.
Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1342–43 (Fed. Cir. 2008).
A
In his complaint, Mr. Montano first seeks relief for
the money he is owed under his subcontract for the per-
formance of electrical work at Redstone Arsenal. The
Tucker Act authorizes the Claims Court to exercise juris-
diction over claims against the government involving “any
express or implied contract with the United States.” 28
U.S.C. § 1491(a)(1). Similarly, the Contract Disputes Act
permits a contractor to bring an action challenging an
adverse decision by a contracting officer in the Claims
Court. 41 U.S.C. § 7104(b)(1). Because a subcontractor
ordinarily lacks privity with the government, however, a
subcontractor generally cannot bring such an action
unless the prime contractor sues the government on the
subcontractor’s behalf. E.R. Mitchell Const. Co. v. Danzig,
175 F.3d 1369, 1370 (Fed. Cir. 1999).
In this case, Mr. Montano acknowledges that he was
not in privity with the government. In addition, Mr.
Montano cannot assert that he nevertheless can bring the
suit through the prime contractor because neither St.
Paul nor Soltek are plaintiffs in this action. Thus, the

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MONTANO ELECTRICAL CONTRACTOR v. US 5
Claims Court correctly concluded that it lacked jurisdic-
tion over Mr. Montano’s contract claims.
B
Mr. Montano next seeks monetary relief for damages
suffered as a result of the contracting officer’s alleged
negligence. Specifically, he argues that the contracting
officer acted negligently in failing to timely advise Mr.
Montano of his rights under the Miller Act. The sole
vehicle for asserting such a tort claim is the FTCA. 28
U.S.C. § 1346(b). The FTCA explains, however, that
the district courts . . . shall have exclusive juris-
diction of civil actions on claims against the Unit-
ed States, for money damages . . . for injury or loss
of property, or personal injury or death caused by
the negligent or wrongful act or omission of any
employee of the Government while acting within
the scope of his office or employment . . . .
Id. § 1346(b)(1). Likewise, the Tucker Act expressly
excludes any claims “sounding in tort,” from the Claims
Court’s jurisdiction. 28 U.S.C. § 1491(a)(1). Thus, the
Claims Court correctly concluded that it lacked jurisdic-
tion to adjudicate Mr. Montano’s claims alleging tortious
conduct by the contracting officer.
C
Finally, Mr. Montano argues that, the Claims Court
erred in refusing to transfer his FTCA claim to an appro-
priate district court. When a court concludes that it lacks
jurisdiction to hear an action, 28 U.S.C. § 1631 permits
that court to transfer the action “to any other such court
in which the action or appeal could have been brought at
the time it was filed . . . .” A court may not, however,
transfer an action to a court that would itself lack juris-
diction. Jan’s Helicopter Serv., Inc. v. Fed. Aviation
Admin., 525 F.3d 1299, 1303 (Fed. Cir. 2008) (“A case

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MONTANO ELECTRICAL CONTRACTOR v. US 6
may be transferred under section 1631 only to a court
that has subject matter jurisdiction.”).
Although the FTCA permits tort claims seeking mon-
etary relief from the government to be filed in district
court, any person making such a claim must first—as a
jurisdictional prerequisite—file the asserted tort claim
with the appropriate agency. 28 U.S.C. § 2675(a); Dal-
rymple v. United States, 460 F.3d 1318, 1324 (11th Cir.
2006). Here, before a district court could exercise its
jurisdiction over a tort claim by Mr. Montano under the
FTCA, Mr. Montano was first required to file his claim
asserting negligence by the contracting officer with the
Corps. The only claim in this record, however, is the
claim that Mr. Montano filed with the ASCBA. Nothing
in the record suggests that this claim related in any way
to the alleged negligent conduct of the contracting officer.
Thus, Mr. Montano has failed to establish this jurisdic-
tional predicate to filing a claim under the FTCA. We
agree with the Claims Court that no district court would
have possessed jurisdiction over Mr. Montano’s FTCA
claim at the time he filed it in the Claims Court and,
therefore, affirm the Claims Court’s decision that it could
not transfer Mr. Montano’s case.
CONCLUSION
We have considered Mr. Montano’s remaining argu-
ments and find them unpersuasive.
AFFIRMED
No costs.

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