Case: 09-51001 Document: 00511151772 Page: 1 Date Filed: 06/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2010
No. 09-51001 Lyle W. Cayce
Summary Calendar Clerk
HERIBERTO HUERTA,
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA; MICHELLE LEONHART, Acting
Administrator of the United States Drug Enforcement Administration,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:09-CV-432
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
As part of a civil forfeiture proceeding, Drug Enforcement Administration
(“DEA”) agents seized the money in federal inmate Heriberto Huerta’s prison
trust account. The agents believed that Huerta’s account contained drug
trafficking proceeds. According to Huerta, DEA agents also raided the homes
and businesses of his friends and family in an effort to isolate him from persons
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
Case: 09-51001 Document: 00511151772 Page: 2 Date Filed: 06/23/2010
who were communicating with him and depositing money into his trust account.
On November 16, 2005, about three months after the seizure and alleged raids,
Huerta mailed a letter to DEA’s seizure counsel complaining that his funds had
been seized in reliance on improper evidence. A federal district court judge later
dismissed the forfeiture action on the government’s motion for voluntary
dismissal in December 2006. Huerta’s funds were refunded.
Alleging that the government tortiously seized the money in his trust
account, Huerta filed an administrative complaint with DEA on November 28,
2008. Huerta initiated this Federal Tort Claims Act (“FTCA”) proceeding after
DEA failed to respond to his complaint. The district court dismissed Huerta’s
claim for lack of subject matter jurisdiction because his administrative complaint
was untimely. Huerta appealed. “We review de novo a district court’s granting
of a motion to dismiss for lack of subject matter jurisdiction.” Hebert v. United
States, 53 F.3d 720, 722 (5th Cir. 1995) (per curiam). For the following reasons,
we affirm.
1. The FTCA applies a two year statute of limitations that runs from the
date a cause of action accrues. See 28 U.S.C. § 2401(b). A cause of action
accrues “when the plaintiff knows or has reason to know of the injury
which is the basis of the action.” Brown v. Nationsbank Corp., 188 F.3d
579, 589-90 (5th Cir. 1999) (quotation omitted). An FTCA claimant’s
awareness of an injury involves two elements: “(1) The existence of the
injury; and (2) causation, that is, the connection between the injury and
the defendant’s actions.” Piotrowski v. City of Houston, 51 F.3d 512, 516
(5th Cir. 1995). Huerta’s claim accrued no later than November 16, 2005,
the date of his letter to DEA’s seizure counsel complaining that his funds
had been illegally seized. The November 2005 letter demonstrates that
Huerta knew of the alleged illegal seizure and the agency responsible on
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Case: 09-51001 Document: 00511151772 Page: 3 Date Filed: 06/23/2010
that date. The district court therefore correctly determined that Huerta’s
claim was “forever barred” because this letter was written more than two
years before Huerta filed his administrative complaint. 28 U.S.C.
§ 2401(b).
2. Huerta argues that the seizure of his funds constituted a “continuing
tort” that tolled the limitations period because he was deprived of his
money every day that it was not in his possession. The argument has no
merit, as the district court concluded. The government seized his money
once. Though Huerta experienced the consequences of that injury
afterwards, the continued poverty he alleges does not convert the one-time
seizure into an ongoing tort.
3. In a related argument, Huerta maintains that his cause of action did
not accrue until the government moved to voluntarily dismiss the
forfeiture proceeding in December 2006 because “untruthful and perjuring
statements” by the government and its agents prevented him from
accessing his funds until that point. Apart from his conclusory
allegations, Huerta has not identified any fraudulent conduct by the
United States or its agents that would support his contention that the
government prevented him from discovering information necessary to file
his administrative complaint with the DEA.
4. Huerta’s arguments that the limitations period should be tolled during
the forfeiture proceeding or under the “doctrine of fraudulent
concealment” are waived because he did not make them before the district
court. See LaMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th
Cir. 2007).
AFFIRMED.
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