IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-51001

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

June 23, 2010

Lyle W. Cayce

Clerk

 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not be published and is not precedent except under the limited circumstances set forth in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: 1 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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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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Case: 09-51001 Document: 00511151772 Page: 3 Date Filed: 06/23/2010