Oquendo-Ayala v. United States ( 1999 )

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1074
MERCEDES OQUENDO-AYALA,
Plaintiff, Appellant,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domnguez, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Nydia Maria Diaz-Buxo on brief for appellant.
David W. Ogden, Acting Assistant Attorney General, Guillermo
Gil, United States Attorney, Robert S. Greenspan and Steve Frank,
Attorneys, Appellate Staff, Department of Justice, on brief for
appellee.
August 5, 1999
Per Curiam. The plaintiff, Mercedes Oquendo-
Ayala, appeals a district court order that summarily dismissed
her complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction. Having thoroughly reviewed the
record and the parties' briefs on appeal, we conclude that the
order of dismissal is correct. Plaintiff's tort claims against
the Drug Enforcement Administration are time barred as a result
of her failure to timely present her administrative claim to
that agency, as required under the Federal Tort Claims Act.
See 28 U.S.C. 2401(b). See also Santiago-Ramirez v.
Secretary of Department of Defense, 984 F.2d 16, 18 (1st Cir.
1993); Kokaras v. United States, 980 F.2d 20, 22 (1st Cir.
1992); Corte-Real v. United States, 949 F.2d 484, 485-86 (1st
Cir. 1991); Eveland v. Director of the CIA, 843 F.2d 46, 50 (1st
Cir. 1988); Hau v. United States, 575 F.2d 1000, 1002-03 (1st
Cir. 1978).
Although plaintiff did timely file a claim with the
United States Attorney's office, that office was not the
appropriate agency for purposes of the Federal Tort Claims Act,
and it complied with the requirements of 28 C.F.R. 14.2(b)(1)
when it transferred the claim to the Federal Bureau of
Investigation, which plaintiff identified on her claim as the
"appropriate agency." Thus, filing with the United States
Attorney's office does not constitute "constructive filing"
with the Drug Enforcement Administration. See Hart v.
Department of Labor ex rel. United States, 116 F.3d 1338, 1341
(10th Cir. 1997); Lotrionte v. United States, 560 F. Supp. 41,
43 (S.D.N.Y. 1983), aff'd, 742 F.2d 1436 (2d Cir. 1983)
(TABLE). Cf. Bukala v. United States, 854 F.2d 201, 203 (7th
Cir. 1988); Greene v. United States, 872 F.2d 236, 237 (8th Cir.
1989).
Plaintiff's 1983 claim against the United States
fails because 1983 does not apply to federal officials acting
pursuant to federal law. See Chatman v. Hernandez, 805 F.2d
453, 455 (1st Cir. 1986); Cervoni v. Secretary of Health
Education & Welfare, 581 F.2d 1010, 1019 (1st Cir. 1978).
Affirmed. See Local Rule 27.1.