NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO NORIEGA and PEDRO 

NORIEGA, Sr., 

Plaintiffs-Appellants, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellee. 

No. 15-15651 

D.C. No. 2:14-cv-01827-DLR 

MEMORANDUM *

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Submitted March 14, 2017**

San Francisco, California

Before: FERNANDEZ, MURGUIA, and WATFORD, Circuit Judges.

Plaintiff-Appellant Pedro Noriega, Jr. (“Noriega”) filed an administrative 

claim with the U.S. Customs and Border Protection (“CBP”) seeking damages 

under the Federal Tort Claims Act (“FTCA”) after a CBP truck collided with a golf 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 17 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

cart in which Noriega was riding. CBP concluded that the CBP truck driver did 

not act negligently or wrongfully and therefore denied Noriega’s claim. Noriega 

then filed a federal lawsuit approximately eight months after receiving the CBP 

denial letter. The lawsuit was brought on behalf of Noriega and Noriega’s father, 

Pedro Noriega, Sr., who sought loss of consortium damages. The district court 

granted summary judgment in favor of defendant-appellee. We have jurisdiction 

pursuant to 28 U.S.C. § 1291, and we affirm. 

1. We review a district court’s grant of summary judgment de novo. Sierra 

Club v. BLM, 786 F.3d 1219, 1223 (9th Cir. 2015). Under the FTCA, “a tort claim 

against the United States shall be forever barred unless . . . [the] action is begun 

within six months after the date of mailing . . . of notice of final denial of the claim 

by the agency to which it was presented.” 28 U.S.C. § 2401(b) (emphasis added). 

Since Noriega’s federal lawsuit was filed more than six months after he received 

the CBP denial letter, his lawsuit is “forever barred.” Id.

Noriega argues that CBP does not have authority to “adjust” claims that seek 

more than $50,000. We must construe a regulation “to give effect to the natural 

and plain meaning of its words.” Crown Pac. v. Occupational Safety & Health 

Review Comm’n, 197 F.3d 1036, 1038 (9th Cir. 1999) (citation omitted). To 

“adjust” is to “determine the amount that an insurer will pay an insured to cover a 

loss,” while a “determination” is defined as a “final decision by a court or 
3 

administrative agency.” Black’s Law Dictionary 48, 514 (9th ed. 2009). Under the 

plain meaning of these words, CBP’s denial letter was a “determination,” not an 

“adjustment.” The FTCA and its implementing regulations make clear that the 

CBP, as a division of the U.S. Department of Homeland Security, can “determine” 

claims without receiving approval from the Attorney General so long as the 

determination does not result in a payment of over $50,000. 28 U.S.C. § 2672; 28 

C.F.R. Pt. 14, App. CBP therefore had authority to issue the denial letter.

2. Noriega, Sr.’s claim is similarly barred. Under the FTCA, a “tort claim 

against the United States shall be forever barred unless it is presented in writing to 

the appropriate Federal agency within two years after such claim accrues.” 28 

U.S.C. § 2401(b). Noriega, Sr. argues that his claim seeks recovery for a

continuing tort, so he may present the claim to CBP at any time. A continuing tort 

is “continuing wrongful conduct,” and “the statute of limitations doesn’t begin to 

run until that conduct ends.” Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 

2002) (emphasis added). Here, Noriega, Sr. seeks recovery only for his alleged 

ongoing injuries. The conduct that gave rise to his ongoing injuries began and 

ended October 3, 2012, the date of the accident. Since more than two years have

passed since that date, Noriega, Sr. is now statutorily barred from presenting his 

claim to CBP. Even assuming that Noriega, Sr. could bring a continuing tort 

claim, Noriega, Sr. has never actually presented his claim for loss of consortium to 
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any federal agency, so he cannot be a party to this lawsuit. 28 U.S.C. § 2401(b). 

AFFIRMED.