            Jfn tbe Wniteb ~tates QCourt of jfeberal QClaims                               FILED
                                         No. 13-435C
                                                                                          FEB 2 0 2014
                                  (Filed : February 20, 2014)
                                                                                        U.S. COURT OF
                                                                                       FEDERAL CLAIMS
                                                 )
MONT ANO ELECTRICAL                              )   Contract dispute; claim by subcontractor;
CONTRACTOR,                                      )   privity; Contract Disputes Act; 41 U.S.C.
                                                 )   § 7104; Miller Act; 40 U.S.C. § 3133 ;
               Plaintiff,                        )   Federal Tort Claims Act; 28 U.S .C.
                                                 )   § 1346(b); request to transfer
       v.                                        )
                                                 )
UNITED ST ATES,                                  )
                                                 )
      Defendant.                                 )
~~~~~~~~~~~~~~~~)

      Jose Montano, doing business as Montano Electrical Contractor, pro se, Madison,
Alabama.

         Michael P. Goodman, Trial Attorney, United States Department of Justice, Washington,
D.C. , for defendant. With him on the briefs were Stuart F. Delery, Deputy Assistant Attorney
General, Bryant G. Snee, Acting Director, and Brian A. Mizoguchi, Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
D.C. Of counsel was David C. Brasfield, Jr. , Assistant District Counsel, United States Army
Corps of Engineers, Mobile District.

                                    OPINION AND ORDER

LETTOW, Judge.

        In this contract dispute, plaintiff Jose Montano, doing business as Montano Electrical
Contractor ("Montano Electrical"), seeks payment from the United States ("the government") for
money allegedly owed for electrical work he performed as a subcontractor to a government
contractor. Pending before the court is the government ' s motion to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims
("RCFC") or, alternatively, for failure to state a claim upon which relief can be granted pursuant
to RCFC 12(b)(6). 1
       1
         Among other things, the government argues that Mr. Montano cannot proceed pro se,
representing Montano Electrical. See Def. ' s Mot. To Dismiss ("Def. ' s Mot.") at 9, ECF No . 7
(citing RCFC 83 .1). The rule states that " [a]n individual who is not an attorney .. . may not
represent a corporation, an entity, or any other person in any proceeding before this court."
RCFC 83 .1. This rule is not, however, implicated in this case because Mr. Montano is
representing himself pro se doing business as Montano Electrical Contractor, see Compl. Civil
'.




                                            BACKGROUND 2

              On April 30, 1999, the United States Army Corps of Engineers ("the Corps"), Mobile
     District, awarded American Renovation and Construction ("ARC") a contract for the design and
     construction of family housing at Redstone Arsenal in Huntsville, Alabama. See Def.'s Mot at
     3. Following the award, ARC entered into a subcontract with Mr. Montano to complete
     electrical work on the project Id In January 2002, ARC defaulted on its contract with the
     government, and its surety, St Paul Mercury Insurance Company ("St Paul"), took over and
     completed the contract using Soltek Pacific ("Soltek") as the completion contractor. See CompL
     Ex. 3, ii 4 (A. Montano Electrical Contractor, ASBCA No. 56951, 10-2 BCA ii 34587, 2010 WL
     4418630 (Oct 27, 2010) ("ASBCA Op.")). 3 Mr. Montano and St Paul executed two
     agreements, assigning Mr. Montana's electrical subcontract to Soltek and releasing St Paul from
     any claims Mr. Montano had against it. CompL at 7. The complaint alleges that Mr. Montano
     signed the agreements under economic compulsion. Id During the construction process, the
     original subcontract had been subject to a number of change orders. CompL at 8-9. The
     complaint alleges that although Mr. Montano completed the electrical work for ARC, and later
     Soltek, as required, he was not fully compensated for a number of the change orders. CompL at
     9-10.

              On April 14, 2003, St Paul filed a claim with the government for an equitable adjustment
     attributable to the additional work and time needed to complete the Redstone Arsenal family-
     housing project Comp!. Ex. 29, at 2. On September 11, 2003, St Paul submitted an amendment
     to its claim, indicating under the heading "Additional Subcontractor Costs" that it was
     negotiating a settlement with Mr. Montano. Id at 7. On December 23, 2003, Mr. Montano sent
     a claim to St Paul seeking additional payments of $520,303.43 under the subcontract, CompL at
     4, also providing a copy of the claim to Gene Curtis, the Corps' contracting officer, see Def.'s
                4
     Mot at 4. The complaint alleges that Mr. Montano made telephone calls to Mr. Curtis during


     Cover Sheet, ECF No. 1-1, which he is permitted to do, see Nova Express v. United States, 80
     Fed. CL 236, 237-39 & n.1 (2008). As Nova Express indicates, in most states, "sole
     proprietorships are viewed as having no independent legal identity." 80 Fed. CL at 238
     (construing state law in applying RCFC I 7(b)).
             Mr. Montano has declared bankruptcy, CompL Ex. 41, at 2, and asserts that his
     bankruptcy is attributable to the absence of payment under the pertinent subcontract, see PL' s
     Resp. to Def's Mot to Dismiss ("PL's Resp.") at 7.
            2
             The recitation of background information does not constitute findings of fact by the
     court and is given solely to provide a context for deciding the current motions. Unless otherwise
     noted, however, the circumstances appear to be undisputed.
            3
             Mr. Montano attached a number of exhibits to his complaint, citations to which refer to
     the designation of exhibit numbers provided in the electronic case filing system.
            4
             St Paul responded to Mr. Montano on January 27, 2004, stating that it had evaluated his
     claim and determined that the majority of the amounts due under the subcontract had already
     been paid, leaving $1,112.84 still to be paid. Comp!. Ex. 18, at I (Letter from David Johnson to


                                                     2
this time, seeking assistance regarding his claim against St. Paul. Comp!. at 5. According to the
complaint, during these conversations, Mr. Curtis stated that he could not help or provide advice
because Mr. Montano was a subcontractor. Id. On April 30, 2004, however, Mr. Curtis wrote to
Mr. Montano to remind him of his possible remedies against St. Paul under the Miller Act, 40
U.S.C. § 3133, and to inform him that Mr. Curtis had no authority to help him recover from St.
Paul. Comp!. Ex. 31 (Letter from Curtis to Montano (Apr. 30, 2004)). In this letter, Mr. Curtis
mentioned that St. Paul had filed a claim with the government on the prime contract. Id. Over
the next months, Mr. Montano and the Corps met twice to discuss the disputes between
Mr. Montano and St. Paul. See Comp!. Ex. 32, at 1 (Letter from Curtis to Montano (Sept. 8,
2004)). Among other things, Mr. Montano claimed that St. Paul was violating the Federal
Acquisition Regulations ("FAR"), but Mr. Curtis informed him that the government had found
no FAR violations by St. Paul and reiterated to Mr. Montano that the Miller Act was the
appropriate remedy for nonpayment by the prime contractor. Id. Mr. Curtis also reminded
Mr. Montano that the dispute did not involve the United States as a party and concluded that he
found "no basis to pursue this [matter] further." Id.

        On November 24, 2004, Mr. Montano submitted a Freedom oflnformation Act ("FOIA")
request for documentation concerning the inspection and acceptance reports for the family-
housing project at Redstone Arsenal, the takeover agreement between ARC and St. Paul, and St.
Paul's claim against the government regarding the Redstone Arsenal contract. Comp!. Ex. 37, at
2 (Letter from Joseph Gonzales to Montano (Feb. 15, 2005)). The government denied this
request because the relevant documents contained confidential business data. Id. Mr. Montano
filed an appeal of the denial. See Comp!. Ex. 29, at 9 (Letter from Donna Black to Montano
(Nov. 17, 2006)) (responding to the appeal). The Corps' counsel advised that the appeal was
under consideration at the Corps's headquarters, and that St. Paul's claim against the government
"included costs for settlement with A. Montano Electrical in the amount of $156,200.00." Id.
Mr. Montano sought additional information regarding this settlement from the government, and
on March 14, 2007, he received a letter, through counsel, from the Corps stating that a tentative
settlement had been reached between St. Paul and the government but that "details [were] still
being worked out." See Comp!. Ex. 30, at 2 (Letter from David Brasfield, Jr. to Robert Presto
(Mar. 14, 2007)). The Corps indicated that by June 30, 2007, it hoped to have the necessary
funds available to implement the settlement. Id. On June 15, 2007, Mr. Montano's counsel then
contacted St. Paul in an attempt to secure a portion of the funds for Mr. Montano. Id. at 3 (Letter
from Presto to Montano (June 15, 2007)). Mr. Montano contends that he did not receive any
portion of the settlement funds from St. Paul. Pl. 's Resp. at 19. Subsequently, the Corps
informed Mr. Montano that the government had paid St. Paul the amount due under the
settlement in June 2007 and considered the claim closed. See Comp!. Ex. 28 (Letter from Black
to Montano (Mar. 20, 2009)).

        On September 13, 2009, Mr. Montano filed a request with the Armed Services Board of
Contract Appeals ("ASBCA") for "help" on his case. ASBCA Op. at 4. The ASBCA treated the
request as an appeal under the Contracts Dispute Act ("CDA"), 41 U.S.C. §§ 7104(a),
7105(e)(l)(A). Ultimately, the ASBCA determined that it lacked jurisdiction over the appeal


Mike Bernstein (Jan. 27, 2004)). The complaint admits that Mr. Montano received some
"progress payments" but avers that a number of them were late. Comp!. at 9-10.


                                                 3
because Mr. Montano was not a contractor as required by the CDA but rather was a
subcontractor. ASBCA Op. at 5.

         Eventually, on June 28, 2013, Mr. Montano filed suit in this court, seeking monetary
relief from the government respecting his subcontract and damages for tortious conduct by the
contracting officer. See Comp!. In lieu of an answer, the government filed a motion to dismiss,
arguing that the court lacks subject matter jurisdiction over Mr. Montano's contract claims and
that Mr. Montano failed to state a claim upon which relief can be granted regarding his tort
claims. Def. 's Mot. at 2-3. That motion has been fully briefed, as has Mr. Montano's request
that the court transfer the case if jurisdiction is lacking in this court.

                                 ST AND ARDS FOR DECISION

        When considering a motion to dismiss for either lack of subject matter jurisdiction or
alternatively for failure to state a claim, the plaintiff bears the burden of establishing sufficient
facts to show the court's subject matter jurisdiction over each claim and the plausibility of the
claims. See McAfee, Inc. v. United States, 111 Fed. Cl. 696, 706 (2013) (citing McNutt v.
General Motors Acceptance Corp. ofInd, 298 U.S. 178, 189 (1936)); see also Bell Atlantic
Corp v. Twombly, 550 U.S. 544, 555 (2007). The court construes all unchallenged factual
allegations in the complaint in favor of the pleader, but any disputed jurisdictional facts must be
proven by a preponderance of the evidence. McAfee, 111 Fed. Cl. at 706; see also Connelly-
Lohr v. United States, 112 Fed. Cl. 350, 352 (2013) (quoting Cambridge v. United States, 558
F.3d 1331, 1335 (Fed. Cir. 2009)). When considering a motion to dismiss for lack of subject
matter jurisdiction, the court "may look beyond the pleadings and 'inquire into jurisdictional
facts."' Central Freight Lines, Inc. v. United States, 87 Fed. Cl. I 04, I 07 (2009) (quoting
Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)). Mr. Montano'spro se pleadings
are liberally construed, but this leniency does not relieve Mr. Montano of his burden to show
jurisdiction. See Heger v. United States, 103 Fed. Cl. 261, 263 (2012) (citations omitted).

                                         JURISDICTION

        The Tucker Act, 28 U.S.C. § 149!(a), grants this court jurisdiction to hear disputes
arising under governmental contracts. Central Freight Lines, 87 Fed. Cl. at 107. 5 Paragraph


        5
        In relevant portion, the Tucker Act provides that:

            (I) The United States Court of Federal Claims shall have jurisdiction to render
                judgment upon any claim against the United States founded either upon the
                Constitution, or any Act of Congress or any regulation of an executive
                department, or upon any express or implied contract with the United States, or for
                liquidated or unliquidated damages in cases not sounding in tort ....
            (2) ... The Court of Federal Claims shall have jurisdiction to render judgment upon
                any claim by or against, or dispute with, a contractor arising under [S]ection
                7104(b)(I) of [T]itle 41, including a dispute concerning termination of a contract,
                rights in tangible or intangible property, compliance with cost accounting
                standards, and other nonmonetary disputes on which a decision of the contracting


                                                  4
149l(a)(l) applies generally to express or implied-in-fact contracts with the government, while
Paragraph 149l(a)(2) pertains specifically to claims subject to the CDA, 41 U.S.C. § 7104(b)(l).
See Record Steel & Constr. Inc. v. United States, 62 Fed. Cl. 508, 518 (2004). In this case, the
parties' focus is specific to whether Mr. Montano can establish privily of contract as required for
claims under the CDA. 6

                                            DISCUSSION

                                      A. Contract Disputes Act

        Congress enacted the CDA to provide "a fair, balanced, and comprehensive statutory
system of legal and administrative remedies in resolving government contract claims." Winter v.
FloorPro, Inc., 570 F.3d 1367, 1369 (Fed. Cir. 2009) (citing Contract Disputes Act of 1978, S.
Rep. No. 95-1118, at 1 (1978), as reprinted in 1978 U.S.C.C.A.N. 5235, 5235). The statute
provides that a contractor can, upon receiving an adverse decision from a contracting officer,
either appeal the contracting officer's decision to an agency board of contract appeals or file a
claim against the government in this court. 41 U.S.C. § 7104. 7 In either situation, the CDA only
applies to "contractors," defined as "a party to a [fjederal [g]overnment contract other than the
[fjederal [g]overnment." 41 U.S.C. § 7101(7); see also FloorPro, 570 F.3d at 1369-70 (citing
what is now codified as 41 U.S.C. § 7101(7)) (also citing Admiralty Constr. Jnc. v. Dalton, 156
F.3d 1217, 1220 (Fed. Cir. 1998) ("[T]he Act emphasizes that only a 'contractor' may appeal the
decision of a contracting officer.")). The courts repeatedly have held that, as a general matter,
subcontractors lack privity of contract with the federal government and thus cannot bring a claim


               officer has been issued under section 6 of [the CDA, now codified as 41 U.S.C.
               § 7103].

28 U.S.C. § 149l(a).
       6
          Paragraph 149l(a)(l) similarly requires the existence ofa contract between
Mr. Montano and the government. See United States v. Johnson Controls, Inc., 713 F.2d 1541,
1550-51 (Fed. Cir. 1983) ('" [A] [p]laintiff cannot recover under the Tucker Act [ifj [t]he petition
does not allege any contract, express or implied in fact, by the [g]overnment with the plaintiff ..
. . This concept of privity [of contract] is mirrored in the CDA.") (quoting Merritt v. United
States, 267 U.S. 338, 340-41 (1925)). Therefore, the court's analysis regarding jurisdiction over
Mr. Montano's claim under the CDA, i.e., if there is privity of contract between Mr. Montano
and the government, is also applicable to jurisdiction under Paragraph 1491 (a)(l) of the Tucker
Act.
       7
         Generally a contractor's choice of forum to challenge a contracting officer's final
decision is binding. See Bonneville Assocs. v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994)
(citing National Neighbors, inc. v. United States, 839 F.2d 1539, 1542 (Fed. Cir. 1988)). This
election doctrine does not apply when the forum originally selected lacked subject matter
jurisdiction over the appeal. Id. Consequently, because the ASBCA determined that it lacked
subject matter jurisdiction over Mr. Montano's appeal before the ASBCA, see ASBCA Op. at 5,
he may still bring a claim in this court.


                                                 5
under the CDA. See e.g., E.R. Mitchell Constr. Co. v. Danzig, 175 F.3d 1369, 1370 (Fed. Cir.
1999) (citing Erickson Air Crane Co. of Wash v. United States, 731 F.2d 810, 813 (Fed. Cir.
1984)); Johnson Controls, 713 F.2d at 1550 (citing Merritt, 267 U.S. at 340-41).

        In accord with these precedents, the government argues that as a subcontractor,
Mr. Montano cannot bring a claim under the CDA because he lacks privity of contract with the
government. Def. 's Mot. at 7. Mr. Montano accepts that he "was not in privity with the United
States." Pl.'s Resp. at 13. He nonetheless argues that he should be permitted to proceed despite
the lack of privily. First, Mr. Montano contends that the contracting officer failed to adequately
inform him about, and preserve his rights under, the Miller Act, 40 U.S.C. § 3133, and that the
contracting officer should have withheld funds from St. Paul pursuant to 48 C.F.R. ("FAR")
§ 52-222.7, but failed to do so. Comp!. at 2. Mr. Montano fails to explain how either of these
alleged shortcomings should bear on the court's ability to exercise jurisdiction over his CDA
claim. These arguments more logically relate to Mr. Montano's tort claims.

        Second, Mr. Montano argues that St. Paul's settlement with the government encompassed
a pass-through claim made on his behalf, entitling him to a portion of the proceeds of the
settlement. Pl. 's Resp. at 6-7. Even absent privity of contract, a subcontractor's claims may be
brought against the government ifthe prime contractor brings the suit on behalf of the
subcontractor - as a pass-through or sponsored claim. See E.R. Mitchell, 175 F.3d at 1373-74;
see also Harper/Neilson-Dillingham, Builders, Inc. v. United States, 81 Fed. Cl. 667, 675 (2008);
ACE Constructors, Inc. v. United States, 70 Fed Cl. 253, 289 (2006), a.ff'd, 499 F.3d 1357 (Fed.
Cir. 2007). "[A] suit of this nature may be maintained only when the prime contractor has
reimbursed its subcontractor for the latter's damages or remains liable for such reimbursement in
the future." George Hyman Constr. Co. v. United States, 30 Fed. Cl. 170, 174 (1993) (quoting
JL. Simmons Co. v. United States, 304 F.2d 886, 888-89 (Ct. Cl. 1962)). Although Mr. Montano
sought information regarding the settlement, neither St. Paul nor the government has provided
him with any details about the nature of, or amounts paid under, the settlement. Comp!. at 38 &
Ex. 29, at 9. In all events, the claim Mr. Montano has brought in this court is not a pass-through
claim over which the court may exercise jurisdiction. St. Paul is not a plaintiff in this action and
has maintained that it is not liable to Mr. Montano for the damages he seeks. Both of these
predicates are required for a proper pass-through claim. Furthermore, because the settlement
resolved all of St. Paul's claims against the government, St. Paul could not have sponsored
Mr. Montano' s claim against the government under the terms of the settlement agreement. See
Comp!. Ex. 28. The court concludes that it lacks subject matter jurisdiction over any claims
arising under the CDA. Mr. Montano's remedy was to file a Miller Act suit in the proper United
States district court against St. Paul. 8




        8
         In pertinent part, the Miller Act, 40 U.S.C. § 3133(b), provides a subcontractor with the
right to bring a civil suit against the prime contractor in the appropriate district court for unpaid
labor or materials. 40 U.S.C. § 3133(b )(1 ), (3). A specific statute oflimitations requires such a
suit to be brought within one year after the last of the labor was performed or material was
supplied. See 40 U.S.C. § 3133(b)(4); United States ex rel. Roach Concrete, Inc. v. Veteran
Pacific, JV, 787 F. Supp. 2d 851, 857 (E.D. Wis. 2011).


                                                  6
                                      B. Federal Tort Claims Act

        The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(l), enables federal district
courts to hear tort claims against the government. 9 Claims of negligence by a contracting officer
fall within this grant of jurisdiction. See Wickliffe v. United States, 102 Fed. Cl. 102, I 10(2011)
(citing Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008)).
Conversely, "[t]he plain language of the Tucker Act excludes from the Court of Federal Claims
jurisdiction claims sounding in tort." Rick's Mushroom Serv., 521 F.3d at 1343. Therefore, this
court cannot consider such claims.

         After conceding that his tort claims do not belong in this court, Mr. Montano asks the
court to transfer his tort claims to an appropriate district court. Pl. 's Resp. at 15-16. The
pertinent statutory authority for such a transfer is provided in 28 U.S.C. § 1631. Section 1631
allows a court that finds that it lacks jurisdiction over a civil case to transfer the case to a court
where the actions could have been brought at the time of filing, if such transfer is in the interest
of justice. See Fisherman's Harvest, Inc. v. PBS & J, 490 F.3d 1371, 1374 (Fed. Cir. 2007). 10 In
determining if transfer is warranted, the court must decide not only that it lacks jurisdiction but
that the transferee court would possess jurisdiction over the claim. Id For a district court to
exercise jurisdiction over a FTCA claim, an administrative claim must first have been filed in
accord with the procedure provided in 28 C.F.R. § 14.2- I 4.4. See Kokotis v. United States
Postal Service, 223 F.3d 275, 278-79 (4th Cir. 2000) (internal citations omitted); Jackson v.

       9
        In relevant part, the FTCA provides 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, under
       circumstances where the United States, if a private person, would be liable to the
       claimant in accordance with the law of the place where the act or omission occurred.



        10
             The statute provides:

       Whenever a civil action is filed in a court as defined in section 610 of this title or an
       appeal, including a petition for review of administrative action, is noticed for or filed with
       such a court and that court finds that there is a want of jurisdiction, the court shall, if it is
       in the interest of justice, transfer such action or appeal to any other such court in which
       the action or appeal could have been brought at the time it was filed or noticed, and the
       action or appeal shall proceed as if it had been filed in or noticed for the court to which it
       is transferred on the date upon which it was actually filed in or noticed for the court from
       which it is transferred.




                                                  7
.   '




        United States, 730 F.2d 808, 809-10 (D.C. Cir. 1984); Gonzales v. United States Postal Service,
        543 F. Supp. 838, 839 (N.D. Cal. 1982). Failure to file an administrative claim results in
        dismissal ofa claim brought in district court for lack of jurisdiction. E.g., Gonzales, 543 F.
        Supp. at 841. Mr. Montano has not filed an administrative claim as required, and as a result, no
        district court could exercise jurisdiction over his tort claims. Therefore, the court cannot transfer
        his claims to an appropriate district court because Mr. Montano could not have brought his
        FTCA claims in district court at the time he filed in this court. See Johnson v. United States, 105
        Fed. Cl. 85, 96 (2012) (refusing to transfer a case to district court when no district court could
        have heard plaintiffs claim at the time of filing).

                                                  CONCLUSION

                For the reasons stated, the government's motion to dismiss for lack of subject matter
        jurisdiction is GRANTED. Mr. Montana's request for transfer under 28 U.S.C. § 1631 is
        DENIED.

               The Clerk shall enter judgment accordingly.

               No costs.

               It is so ORDERED.

                                                              c~
                                                              Judge




                                                          8
