NOTE: This disposition is nonprecedential.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

______________________ 

JOSE A. MONTANO, Madison, AL, pro se.

BARBARA E. THOMAS, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for defendant-appellee. Also represented 

by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., BRIAN A.

MIZOGUCHI. 

______________________ 

Before CHEN, BRYSON, and HUGHES, Circuit Judges.
2 MONTANO ELECTRICAL CONTRACTOR v. US

PER 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 transfer. 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 & Construction Company (ARC) for the design and construction of 

family housing at Redstone Arsenal in Huntsville, Alabama. 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 transition, Mr. Montano’s subcontract was assigned to Soltek 

and Mr. Montano continued to perform under the subcontract. 

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 contracting 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 explained that Mr. Montano should pursue any such claim 
 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 jurisdiction. 

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. Montano 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 jurisdiction. 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 subcontractor—and has not been paid in full within 90 days after the 

last labor was performed, may initiate a law suit in federal district court on the payment bond for the unpaid 

amount. 40 U.S.C. § 3133.

 
4 MONTANO ELECTRICAL CONTRACTOR v. US

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 jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review a dismissal for lack of subject matter jurisdiction 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 underlying determination that no transferee court would possess 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 performance of electrical work at Redstone Arsenal. The 

Tucker Act authorizes the Claims Court to exercise jurisdiction 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 
 MONTANO ELECTRICAL CONTRACTOR v. US 5

Claims Court correctly concluded that it lacked jurisdiction 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 jurisdiction of civil actions on claims against the United 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 jurisdiction 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 appropriate 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 jurisdiction. Jan’s Helicopter Serv., Inc. v. Fed. Aviation 

Admin., 525 F.3d 1299, 1303 (Fed. Cir. 2008) (“A case 
6 MONTANO ELECTRICAL CONTRACTOR v. US

may be transferred under section 1631 only to a court 

that has subject matter jurisdiction.”). 

Although the FTCA permits tort claims seeking monetary 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); Dalrymple 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 jurisdictional 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 arguments and find them unpersuasive. 

AFFIRMED

No costs.