PEDRO NORIEGA and PEDRO NORIEGA, Sr. v. United States of America

NOT FOR PUBLICATION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

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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

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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.

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