     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not be published and is not precedent except under the limited circumstances set forth in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

                                        2
  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.



                                            3
