UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, 

,
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).



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