dissenting in part.
Prosecutors are understandably enticed by the lure of the big fish. But when an unsubstantiated indictment can lead to the imposition of over $25,000,000 in attorney’s fees on an innocent party without recompense, we should hope for — nay, we expect — more responsible conduct by the government, regardless how attractive the quarry.
Unfortunately for General Dynamics, the government failed to observe basic precautions. It conducted an investigation of the alleged defense-contract fraud which was either unconscionably inadequate at best or recklessly arrogant at worst. As former Assistant Attorney General William Weld frankly conceded, the Department of Justice (“DOJ”) blindly relied upon the faulty interpretation of the contract that the Defense Contract Audit Agency (“DCAA”) had provided:
The audit of General Dynamics was predicated upon the DCAA’s belief that the DIVAD contract was a firm fixed price contract which had specific, mandatory requirements. The audit report and the advice of DCAA personnel in connection therewith were critical to the prosecution’s early understanding of the contract as a firm fixed price type.... This understanding formed the premise upon which the entire investigation was conducted and the indictment presented to the grand jury.
Securities Laws Enforcement and Defense Contractors: Joint Hearings Before the Sub-eomm. on Oversight and Investigations of the House Comm, on Energy and Commerce, and the Subcomm. on Criminal Justice of the House- Comm, on the Judiciary, 100th Cong. 39 (1987) (statement of William Weld, Assistant Attorney General, Criminal Division, U.S. Dept, of Justice) (emphasis added).
The government did not engage in a dispassionate, independent analysis of the DIVAD contract.1 Had it done so — or had it simply given more careful analysis to General Dynamics’s position ab initio — the DOJ would have realized quite clearly that the document at issue was not a “fixed-price” contract at all, but rather one of “best-efforts,” the terms of which General Dynamics had completely satisfied. Too willing to discount the company’s explanation as a mere post-hoe rationalization, the DOJ wrongfully pursued its ill-based prosecution for three- and-a-half years. That the Department is immune from suit in this case does not mean that it is also immune from criticism.
I
Yet this case is not about finger-pointing. It is about the jurisdiction of the federal courts. We lack jurisdiction when a claim is “based upon the exercise or performance or the failure to exercise of perform a discretionary function.” 28 U.S.C. § 2680(a) (emphasis added). As this court has previously recognized, “[t]he decision whether or not to prosecute a given individual is a discretionary function for which the United States is immune from liability.” Wright v. United States, 719 F.2d 1032, 1035 (9th Cir.1983). The DOJ’s misconduct, therefore, cannot be the basis for General Dynamics’s cause of action. To that extent I agree with the court.
The misconduct of the DCAA, however, is a different story. Although the court holds that the DOJ’s immunity shields the DCAA, I am unfortunately unable to join in such conclusion and therefore respectfully dissent as to that portion of the court’s opinion. Were we deciding this ease on a blank slate, I might see things differently. Indeed, I share my colleagues concern that, because “[pjrosecutors do not usually do all of their own investigation,”- a litigant could almost always resort to the argument “that this or *1288that report was negligently prepared,” thereby “swallowing] up a large part of the discretionary function exemption.” (Opinion at 2748, 2751). However, this is not an issue of first impression for our court, and we must decide General Dynamics’s claim against the backdrop of precedent.
In United Cook Inlet Drift Assoc. v. Trinidad Corp. (In re The Glacier Bay), 71 F.3d 1447 (1995), we held that a discretionary review of a negligent hydrographic report did not shield the drafters of that report from liability. See id. at 1451. The court held, in no uncertain terms:
Each separate action must be examined to determine whether the specific actor had discretion of a type Congress intended to shield.
Id. at 1451. My colleagues conclude that the discretionary reviewers in Glacier Bay did not have the “broad based discretion” that the DOJ had in this case. To them, it would seem, the distinction is a matter of degree. The DOJ was more independent than Glacier Bay’s hydrographic reviewers; it had more information on which to base its decision.
Although my colleagues are correct that this is a distinction, it is a distinction without a difference. The Glacier Bay court was unequivocal: “[TJhe proper level of inquiry must be act by act- [W]e must determine whether each person taking an allegedly negligent act had discretion.” Id. There was no suggestion that the result depended at all on the amount of discretion possessed by reviewers. To the contrary, “[e]ven if [the hydrographic] reviewers had discretion to approve the final charts, such discretion would not shield allegedly negligent non-discretionary acts by [those who prepared the charts].” Id.
To be sure, there is reason to be skeptical of Glacier Bay’s reasoning, which could have the tendency to “bog down the government” and “elide what Congress has written.” (Opinion at 1283, 1284-85). However, Glacier Bay’s net, as described by the panel that decided that case, is wide enough to encompass the DCAA’s negligence. I am thus unable to join the court’s application of discretionary-function immunity. The DCAA clearly was not immune.
II
I nevertheless concur in the result because, in my view, General Dynamics’s otherwise valid claim is time-barred. The Federal Tort Claims Act provides that a claim against the United States is barred unless the plaintiff presents it in writing to the appropriate federal agency within two years of accrual. See 28 U.S.C. § 2401(b). The claim accrues once the plaintiff knows of his injury and its cause, see United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259 (1979); Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir.1986), irrespective of whether the plaintiff is also aware of the government’s negligence or the full extent of the damages, see Kubrick, 444 U.S. at 123, 100 S.Ct. at 360.
In this case, identifying the injury for which General Dynamics seeks relief is simple: the injury is the indictment. In defending itself against the erroneously premised indictment, General Dynamics spent over $25,000,000 in attorney’s fees. Identifying the “cause” of this injury is a more complicated issue because, in fact, there were two causes attributable to the government: the DCAA’s release of its audit report and the DOJ’s conduct during the course of its inadequate investigation. However, of these two causes, only the former is actionable. We all agree that the other, the DOJ’s misjudgment, is shielded by discretionary immunity. Therefore, the operative question for determining the accrual of General Dynamics’s cause of action is just the following: When did the company know that the audit report was a cause of the indictment? The answer, it seems to me, is December 1985, the time of the indictment. Because the company did not file its administrative claim until over three years later, in March 1989, and because equitable tolling was unavailable, the claim was untimely.
A
At the time of the indictment, General Dynamics knew that the DCAA’s report was a cause of its injury. By then, it had already received the audit report, which notified the company that “[c]ertain of the matters addressed [therein were] currently under inves*1289tigation by the Naval and Investigative Service and the Department of Justice.” Also by that time, General Dynamics had made numerous written and oral appeals to the DOJ urging the Department to disregard the audit report and to acknowledge that the contract was one of “best efforts.” Although the company might not have understood why the DOJ was confused despite the clear “best efforts” language in the contract, there can be no doubt that General Dynamics knew that the audit report was at the root of the problem, as is evidenced by its flurry of communications with the government. General Dynamics did not have to know the existence and extent of the DOJ’s negligence, or even the DCAA’s negligence, in order to file’a claim based on the DCAA’s report, see Kubrick, 444 U.S. at 123,100 S.Ct. at 360; all it had to know was that the DCAA’s report was a cause of its injury. It therefore seems clear that General Dynamics had sufficient knowledge at the time of the indictment in December 1985, and its claim accrued thereupon.
B
The limitations period began to run immediately upon indictment. The district court abused its discretion by tolling the statute of limitations before the dismissal of the indictment. Equitable tolling is generally available only “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990). General Dynamics does not fall within either category. The company contends that filing its claim sooner than it did might have impeded its efforts to convince the government to dismiss the indictment, and also might have resulted in the suspension of its business with the government. Perhaps so, but the mere difficulty of such strategic choices does not authorize tolling; the government engaged in no “misconduct” during this period.
The district court also abused its discretion by tolling the statute of limitations after the dismissal of the indictment, during the period of negotiations between the company and the government for reimbursement of attorney’s fees. Because these negotiations in no way precluded General Dynamics from filing a tort challenge, they should not have been the basis for tolling the statute of limitations. Thus, the limitations period continued to run, and it expired prior to General Dynamics’s filing of its administrative claim.
Ill
Glacier Bay supports the district court’s conclusion that the government was not immune in this case and should have reimbursed the $25,880,752 in resulting attorney’s fees. Because General Dynamics’s claim was time-barred, however, I must concur in the result of reversal.
. In fairness, Mr. Weld did eventually own up to the government’s shortcomings. In testifying before Congress, he stated: "[B]ecause of the relatively limited function performed by. DCAA, it is all the more important for the Justice Department to conduct, in essence, a de novo investigation and evaluation of the evidence.” Id. at 50. Alas, too little, too late.