                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-2221


SHIRLEY ANN STEWART,

                    Plaintiff - Appellant,

             v.

UNITED STATES OF AMERICA,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:15-cv-01362-CMH-JFA)


Submitted: April 28, 2017                                         Decided: May 30, 2017


Before MOTZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Shirley Ann Stewart, Appellant Pro Se. Dennis Carl Barghaan, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Shirley Ann Stewart appeals the district court’s orders dismissing as untimely her

case under the Federal Tort Claims Act, 28 U.S.C. § 2671-80 (2012), and denying her

motions to alter or amend and to vacate that judgment under Fed. R. Civ. P. 59(e) and

60(b), respectively. This FTCA case arose from Stewart’s arrest following a search of

her home by United States Immigration and Customs Enforcement agents.                    Time

limitations for FTCA actions appear in FTCA § 2401(b), which provides that:

       A tort claim against the United States shall be forever barred unless it is
       presented in writing to the appropriate Federal agency within two years
       after such claim accrues or unless action is begun within six months after
       the date of mailing, by certified or registered mail, of notice of final denial
       of the claim by the agency to which it was presented.

       We review de novo the dismissal of Stewart’s complaint under § 2401(b). See In

re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014). Because Stewart filed

this lawsuit on October 19, 2015, over a year after she received a letter from ICE denying

her claim on September 11, 2014, the six-month limitations period set forth in § 2401(b)

bars this action.

       Stewart protests that the district court should have considered the start of this

action to be the date she filed a prior lawsuit in the United States District Court for the

District of Columbia. Stewart filed that lawsuit within the six-month limitations period,

but the D.C. District Court found venue improper in its district. Where, as here, a

plaintiff has timely brought an action in the wrong district in federal court, the court saves

the case through transfer to a proper venue. Burnett v. New York Cent. R.R., 380 U.S.

424, 430 (1965). Consistent with that procedure, the D.C. District Court attempted to

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transfer the case to the United States District Court for the Eastern District of Virginia,

and when that transfer failed, the D.C. District Court directed Stewart to resubmit her

complaint to it for proper transfer. Stewart’s remedy was therefore not through this

separate, belated action in the Eastern District of Virginia, but through compliance with

the instructions of the D.C. District Court. Her failure to take advantage of that remedy

indicated a lack of diligent pursuit, and therefore, the D.C. lawsuit cannot serve as the

basis for the timeliness of this separate action. Cf. id. (recognizing that timely filing suit

against federal government in wrong district in federal court indicates diligent pursuit of

lawsuit, and therefore, lawsuit should continue through transfer to proper venue).

       Stewart also questions whether the six-month limitations period ever commenced.

Stewart argues that the ICE denial letter did not trigger the six-month period because she

had complained to other agencies and never received a response.             Section 2401(b)

requires plaintiffs to file their complaints with the “appropriate Federal agency,” meaning

the “agency whose activities gave rise to the claim.” 28 C.F.R. § 14.2 (2008). The

activities of ICE gave rise to Stewart’s claim because ICE agents conducted the search,

seizure, and arrest at issue in Stewart’s complaint. Thus, ICE’s denial commenced the

six-month period for filing an action in court, and the other agencies’ lack of response is

irrelevant.

       We therefore conclude that the district court did not err when it dismissed

Stewart’s FTCA case.       Based on our review of the district court’s ruling, we also

conclude that the district court did not abuse its discretion when it denied Stewart’s Rule

59(e) and 60(b) motions. Thus, we affirm the district court’s judgment. We also deny

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Stewart’s motion to appoint or assign counsel. 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




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