Oquendo-Ayala v. United States

First Circuit

Oquendo-Ayala v. United States

CourtCourt of Appeals for the First Circuit

DecidedAugust 6, 1999

Docket99-1074

StatusUnpublished

This text of Oquendo-Ayala v. United States (Oquendo-Ayala v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Oquendo-Ayala v. United States, (1st Cir. 1999).

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<pre> [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 99-1074 MERCEDES OQUENDO-AYALA, Plaintiff, Appellant, v. UNITED STATES,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. </pre>

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<pre> [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. </pre>

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