Daniel Blue v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7123
DANIEL BLUE,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:12-cv-00121-FPS-DJJ)
Submitted: December 30, 2013 Decided: January 13, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Daniel Blue, Appellant Pro Se. Jarod James Douglas, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Blue appeals the district court’s order
accepting the recommendation of the magistrate judge and
dismissing Blue’s claim under the Federal Tort Claims Act
(“FTCA”) for lack of subject matter jurisdiction. We have
reviewed the record and find no reversible error. Blue v.
United States, No. 5:12-cv-00121-FPS-DJJ (N.D. W. Va. May 3,
2013). * We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
*
Even assuming, as Blue suggests, that the mailbox rule
applies in the FTCA context, we conclude that Blue’s filing of
his administrative claim with the wrong agency does not warrant
constructive filing under the circumstances of this case. See
Hart v. Dep’t of Labor ex rel. United States, 116 F.3d 1338,
1340 (10th Cir. 1997) (finding no constructive filing because
claimant failed to file in a timely manner with the prior agency
and the untimeliness could not be attributed to any dilatory
conduct on the part of a federal agency).
2