Montano Elec. Contractor v. United States, 2015 U.S. App. LEXIS 5928 (Fed. Cir. Apr. 13, 2015)

The Army Corps of Engineers (“the Corps”) hired a general contractor, who subcontracted certain electrical work to Montano (“Subcontractor”). When Subcontractor was not paid for its work, Subcontractor sought assistance from the Corps’ contracting officer, who explained that he was unable to assist because Subcontractor did not have a contract with the government and the government was thus not a party to Subcontractor’s dispute; however, Subcontractor should pursue any claims it had against the general contractor in federal district court under the Miller Act.

Subcontractor then filed a contract claim against the government in the United States Court of Federal Claims (the “Claims Court”) seeking payment for its work. Subcontractor also filed a tort claim asserting the Corps’ contracting officer negligently failed to inform Subcontractor of its Miller Act rights before the limitations period expired.

The Claims Court dismissed Subcontractor’s claims, concluding that it lacked jurisdiction over Subcontractor’s contract claim because Subcontractor was not in privity with the government; that it lacked jurisdiction over Subcontractor’s tort claim because claims brought under the Federal Tort Claims Act (FTCA) are expressly excluded from the Claims Court’s jurisdiction; and that it could not transfer Subcontractor’s tort claim because Subcontractor had failed to first file an administrative claim, which was a jurisdictional predicate to filing an FTCA claim.

The Federal Circuit court affirmed. The court held that the Claims Court had correctly concluded that it lacked jurisdiction over Subcontractor’s contract claim. Subcontractor could not maintain a contract action against the government because Subcontractor was neither in privity with the government, nor had a party in privity with the government, such as the general contractor, brought a contract action on Subcontractor’s behalf.

The court also held that the Claims Court had correctly concluded that it lacked jurisdiction over Subcontractor’s tort claim.  The FTCA is the sole vehicle for asserting a tort claim against the federal government, and the FTCA vests jurisdiction exclusively in the district courts.  Further, the statute governing the Claims Court expressly excludes claims sounding in tort from the Claims Court’s jurisdiction.

Finally, the court held that the Claims Court had correctly concluded that it could not transfer Subcontractor’s tort claim. The FTCA requires a person making a tort claim against the government to first file the claim with the appropriate administrative agency. Subcontractor had not made any such filing; thus, no district court would have possessed jurisdiction over Subcontractor’s FTCA claim at the time he filed it in the Claims Court.

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