Wyatt, et al v. USA

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 1, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50346
Summary Calendar
SYLVIA KNOHR WYATT; BARBARA KNOHR HURTADO,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CV-86-OG
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Sylvia Knohr Wyatt and Barbara Knohr Hurtado appeal the
district court’s dismissal of their Federal Tort Claims Act
(FTCA) action as time-barred. Appellants argue that the district
court erred in refusing to apply equitable tolling to their
claim. They argue that the court’s reliance on Houston v. United
States Postal Service, 823 F.2d 896 (5th Cir. 1987) and United
States v. Kubrick, 444 U.S. 111 (1979), for the conclusion that
the statute of limitations in the FTCA is jurisdictional in

-- 1 of 3 --

No. 03-50346
-2-
nature was erroneous. They argue that the doctrine of equitable
tolling applies to their case because they were prevented by
affirmative and fraudulent action on the part of the defendant
from making the connection between their injury and the defendant’s
actions. They argue that the district court erred in relying
on the decision in Hohri v. United States, 586 F.Supp. 769
(D.D.C. 1984), affirmed, 847 F.2d 779 (Fed. Cir. 1988), in which
the plaintiffs’ claims arising out of their internment during
WWII were held to be time-barred, because that case concerned
Japanese-American internees. They argue that unlike the
Japanese, they were never made aware, either through published
opinions or congressional reports, that the Government had
concealed its role in their ordeal, and had misrepresented the
military necessity for the treatment they received. They contend
that the report “Commission on Wartime Relocation and Internment
of Civilians, Personal Justice Denied” (1982) did not report on
the treatment of Latin Americans of German descent. They argue
that the statute of limitations was tolled until 1994, when they
finally discovered that the United States caused them injury, and
that their action was timely filed.
Although the district court, in its order adopting the
magistrate judge’s recommendation, noted Houston and Kubrick for
the proposition that the statute of limitations in the FTCA is
jurisdictional, the magistrate judge’s report specifically
acknowledged that equitable tolling could apply to FTCA cases,

-- 2 of 3 --

No. 03-50346
-3-
but concluded that the circumstances in this case did not justify
its application. The district court found that the plaintiffs’
claims accrued in 1982 when the Commission’s report was
published, but certainly no later than the publication of the
Hohri decision in 1984.
The 1982 report, “Commission on Wartime Relocation and
Internment of Civilians, Personal Justice Denied,” in an
Appendix, provides information concerning the detention and
deportation of Japanese, German, and Italian internees from Latin
America, including Costa Rica. The report notes that some of
these internees were held at Crystal City, Texas. The plaintiffs
were interned during the same period as the plaintiffs in Hohri,
pursuant to similar policies, and were held in some of the same
camps. The district court correctly ruled that a “reasonable
person would have been on notice long before 1994 that the
United States Government was involved in [their] detention and
subsequent transfer to Germany - or would have inquired further.”
The district court did not abuse its discretion in deciding that
equitable tolling did not apply. Teemac v. Henderson, 298 F.3d
452, 457 (5th Cir. 2002). As a result, this Court AFFIRMS the
district court’s judgment.
AFFIRMED.

-- 3 of 3 --