The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUMDECISION AND ORDER
The Court has before it a motion to dismiss filed by the BLM. The motion is fully briefed and at issue. The Court will deny the motion for the reasons expressed below.
In this lawsuit, plaintiffs sue the BLM, claiming that its application of the DuPont chemical Oust in 1999 and 2000 caused damage to plaintiffs' crops -- specifically sugar beets, potatoes and wheat -- in 2002 and 2003. The plaintiffs filed their administrative claim under the Federal Tort Claims Act on April 21, 2004. The BLM claims that because the plaintiffs' claims accrued, at the latest, in 2001, their administrative claim filed in 2004 was not filed within the two-year statute of limitations, requiring that this lawsuit be dismissed. Accordingly, the BLM has filed a motion under Rule 12(b)(1) claiming the Court has no subject matter jurisdiction.
A Rule 12(b)(1) jurisdictional attack may be facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Id. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Id. The BLM's jurisdictional attack is factual because it relies on extrinsic evidence to demonstrate when the plaintiffs had knowledge of their crop damage and its cause.
In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Id. at 1039. But where "the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits' of an action," the Court must treat the motion as a motion for summary judgment. Id.
The Court cannot find that the issues are so intertwined that the motion to dismiss must be converted into a motion for summary judgment. Accordingly, the Court will treat the BLM's motion as a motion to dismiss based on Rule 12(b)(1).
FTCA Statute of Limitations
The FTCA statute of limitations requires that a party file an administrative claim with the appropriate federal agency within two years of the date that the claim accrued. See 28 U.S.C. § 2401(b). The requirement is jurisdictional, and a plaintiffs' failure to comply deprives a federal court of subject-matter jurisdiction over his claims. See Marley v. United States, 567 F.3d 1030, 1035-37 (9th Cir. 2009) (holding that jurisdictional nature of FTCA's statute of limitations bars use of equitable tolling to excuse plaintiff's untimeliness).
A tort claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause. See United States v. Kubrick, 444 U.S. 111 (1979). This rule protects a plaintiff who may not know of his injury or whose injury may be unknowable until it manifests itself. Id. at 122. But it does not protect a plaintiff who, knowing of his injury, "fails to bring suit because he is incompetently or mistakenly told that he does not have a case . . . ." Id. Courts must not "visit the ...