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The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1475

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James O. Vaughns,

Appellant,

v.

United States of America; Veterans

Administration; Togo D. West, Jr.,

Secretary of Veterans Affairs,

Appellees.

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Appeal from the United States

District Court for the Eastern

District of Arkansas.

[UNPUBLISHED]

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Submitted: September 13, 2001

 Filed: October 10, 2001

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Before HANSEN and BEAM, Circuit Judges, and BOGUE,1

 District Judge. 

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PER CURIAM.
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The Honorable Henry Woods, United States District Judge for the Eastern

District of Arkansas.

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James Vaughns appeals the district court's2 grant of summary judgment in favor

of the defendants in this Federal Tort Claims Act (FTCA) action. Vaughns is a

veteran of the United States Air Force, serving from 1966-1970. In 1969, while

stationed in what was then known as South Vietnam, Vaughns began to experience

severe acne. In 1973, after being honorably discharged, Vaughns sought treatment

for his skin condition at McClellan Memorial Veterans Hospital in Little Rock,

Arkansas. The hospital treated his skin condition with dapsone, but discontinued this

treatment after Vaughns experienced a side effect of the medication. The hospital

treated him with prednisone from 1973 to 1980 to ameliorate the secondary effect of

the dapsone treatment. On October 28, 1993, Vaughns underwent oral surgery at the

VA Medical Center in Dallas, Texas, to relieve pain, allegedly caused by the

prednisone, in his tempromandibular joint. 

On January 29, 1998, Vaughns filed an administrative claim with the

Department of Veterans Affairs (Department), alleging that the defendants had

committed medical malpractice by treating him with dapsone and prednisone. In an

amended claim, Vaughns also alleged that during the surgery on his

tempromandibular joint, the oral surgeon committed medical malpractice by severing

Vaughns' facial nerves. The Department denied Vaughns' administrative claim and

his motion for reconsideration. On October 29, 1999, Vaughns filed a pro se

complaint pursuant to the FTCA, asserting the same three claims.

The district court dismissed the dapsone and prednisone claims for want of

jurisdiction, concluding that Vaughns had failed to timely present an administrative

claim to the appropriate federal agency before filing his FTCA action. See 28 U.S.C.

§ 2675(a) (1994) (providing that an "action shall not be instituted . . . against the

United States for money damages . . . unless the claimant shall have first presented
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the claim to the appropriate Federal agency. . ."); 28 U.S.C. § 2401(b) (1994)

(providing that tort claim against the United States shall be "forever barred" unless

presented to the appropriate federal agency within two years after the claim

"accrues"); Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999) (stating that

timely filing of administrative claim is a jurisdictional prerequisite in FTCA action).

In a medical malpractice claim, the claim does not accrue until the plaintiff knows of

the fact of injury and its cause. United States v. Kubrick, 444 U.S. 111, 120 (1979).

The district court found that Vaughns knew of his dapsone- and prednisone-related

injuries by, at the latest, July 29, 1994, or three and one-half years before Vaughns

filed his administrative claim with the Department. We review the district court's

findings of fact regarding subject matter jurisdiction for clear error and its application

of law de novo. Appley Bros. v. United States, 164 F.3d 1164, 1170 (8th Cir. 1999).

After careful review, we hold that the district court's findings are not clearly

erroneous and its application of law to those facts is proper.

The district court also granted summary judgment in favor of the defendants

as to Vaughns' oral surgery claim. The defendants presented an affidavit from a Dr.

Flaxman stating that Vaughns had suffered no loss of sensation of the facial nerves,

and Vaughns presented no evidence that his facial nerves were severed. See Herring

v. Canada Life Assur. Co., 207 F.3d 1026, 1029-30 (8th Cir. 2000) (stating that

opponent of motion must come forward with specific facts showing there is a genuine

issue for trial). Having reviewed the record de novo, see Bellecourt v. United States,

994 F.2d 427, 430 (8th Cir. 1993), cert. denied, 510 U.S. 1109 (1994), and finding

no error of fact or law, we affirm the judgment of the district court. See 8th Cir. R.

47B. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.