Daniel Blue v. United States

Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.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, 2013 WL 1867093 (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. Footnotes [*] 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).