Unpublished Disposition, 904 F.2d 40 (9th Cir. 1982)

MEMORANDUM^*** 

The plaintiff appeals from dismissal of his action against the United States acting through the Farmers Home Administration (FmHA), brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The district court found, specifically, that McAfee had failed to file an administrative claim within two years after his cause of action arose. 28 U.S.C. § 2401(b) provides that " [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...." A district court has no jurisdiction under the Federal Tort Claims Act unless the administrative claim is filed within the two year period. Rosales v. United States, 824 F.2d 799, 802 (9th Cir. 1987).

The first question in the case is, when did McAfee's alleged claim accrue? This question is determined by application of federal law. Hungerford v. United States, 307 F.2d 99, 101-02 (9th Cir. 1962). Under the federal standard a cause of action generally accrues when a plaintiff knows or has reason to know of the injury that is the basis of the action. Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987).

The district court determined that McAfee's claim accrued no later than September 1979 and that his administrative claim filed on June 4, 1982, was beyond the two year period prescribed by the statute. McAfee argues that the district court erred in finding that his claim accrued in September 1979 and that the actual accrual date was the date the claim was filed because the United States and the Farmers Home Administration engaged in a continuing tort.

McAfee and his wife entered into a contract with the Water Development Corporation in 1978 to drill and rehabilitate water wells on the McAfees' farm located in Merced County, California. The contract was subject to the McAfees' obtaining funds from FmHA to cover the cost of drilling. The FmHA was never a party to the contract but loaned the McAfees over two millions dollars for the project.

The Water Development Corporation began work in October 1978 but problems with drilling arose which necessitated modifications of the contract between the McAfees and the contractor. After these modifications were made, the corporation resumed work and completed the drilling and rehabilitation on May 19, 1979. A number of problems with the wells were discovered on inspection and the Water Development Corporation was compelled to do more remedial and warranty work. Nevertheless, on June 9, 1979, Darlene McAfee, wife of Rodger McAfee, filed a Notice of Completion of work performed under the contract in the official records of Merced County. In August 1979, Rodger McAfee granted to Darlene McAfee a power of attorney to conduct all business affairs on behalf of the couple and this power of attorney was also recorded in Merced County. Although there continued to be problems even after the corporation completed its warranty work in August 1979, Darlene McAfee less than one month later, acting pursuant to her power of attorney, accepted the work performed by the Water Development Corporation and authorized FmHA to disburse the balance of the loan proceeds.

McAfee filed an administrative claim for damages under the Federal Tort Claims Act with the United States Department of Agriculture on June 4, 1982. Later, on December 20, 1982, he filed this action in district court seeking declaratory and injunctive relief in addition to damages. The district court dismissed the action on the ground that it lacked subject matter jurisdiction because of McAfee's failure to file the administrative claim within two years after accrual of his claim. Although the district court's order merely dismissed the complaint rather than dismissing the action, we construe the order as a final dismissal of the action since the court did not permit an amendment and noted in its memorandum that the jurisdictional defect could not be cured.

The court determined that the tort claim against the United States accrued no later than September 1979, when Darlene McAfee accepted the work performed by the Water Development Corporation and authorized FmHA to disburse the balance of the loan proceeds. We find that the tort claimed by McAfee is not a continuing tort within the meaning of that term. McAfee may be suffering continuing consequences of the alleged wrong, but the tort, if any, related to a specific act. Any wrong committed by the United States occurred at the latest when FmHA paid the final balance of the loan funds to the Water Development Corporation. The findings of the district court are not clearly erroneous and thus are binding on this court.

We have carefully examined each argument advanced by Rodger McAfee in support of his claim that he filed a timely administrative notice with the Department of Agriculture and find none of these arguments availing. In addition to arguing that his wife had no authority to bind him in her release of funds, a meritless argument, Rodger McAfee contends that he wrote a letter to officials of FmHA dated May 11, 1981, within two years of the accrual date as found by the district court, and that this letter constitutes a valid administrative claim.

We have examined the May 11 letter and conclude that it does not comply with the administrative notice requirement of 28 U.S.C. § 2675(a). This court has adopted a statement of the minimal notice requirement under Sec. 2675(a) as follows:

In claims for damages for injury to persons or property the usual requirement is that the notice or statement shall contain a brief general description of the time, place, cause and general nature of the injury, and often the amount of compensation or other relief demanded. (Emphasis added).

Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982) (quoting 17 McQuillin, Municipal Corporations Sec. 4807 (3d ed. 1968) at 89-90). Read most indulgently the May 11 letter does not meet these minimal requirements.

The judgment of the district court is AFFIRMED.