Delaine v. U. S.

Full title: Ellen L. Delaine, Appellant v. United States of America, et al., Appellees

Court: United States Court of Appeals, District of Columbia Circuit

Date published: Feb 23, 2007

No. 06-5407 (D.C. Cir. Feb. 23, 2007)

Opinion

No. 06-5407.

Filed On: February 23, 2007.

BEFORE: Ginsburg, Chief Judge, and Sentelle and Garland, Circuit Judges.

Per Curiam

ORDER

Upon consideration of the notice of appeal, which the court construes as a petition for writ or mandamus, and the memorandum of law and fact in support thereof, it is

ORDERED that the petition for writ of mandamus be denied. Because the portion of the case which the district court ordered transferred to the Eastern District of Virginia was physically transferred before the appeal was noted, this court has no jurisdiction to review the transfer. See In re Briscoe, 976 F.2d 1425, 1426 (D.C. Cir. 1992) (per curiam) (citingStarnes v. McGuire, 512 F.2d 918, 924 (D.C. Cir. 1974) (en banc)). The district court's order was signed October 17, 2006, filed November 3, 2006, and entered November 6, 2006; the case was physically transferred November 30, 2006; and the notice of appeal was entered December 4, 2006. It is

FURTHER ORDERED, on the court's own motion, that the portion of the district court's order filed November 3, 2006, dismissing the complaint against the United States, the United States Postal Service, the District of Columbia, and the four individually-named parties, be summarily affirmed. The memorandum of law and fact in support of the petition for writ of mandamus placed before the court the merits of the appeal; the merits are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court properly dismissed the claims against the federal parties for failure to exhaust administrative remedies as required under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.; against the District of Columbia for failure to state a claim upon which relief can be granted; and against the individually-named parties as frivolous.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.