* 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that this opinion should not be published and is not precedent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

FILED

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
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,
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.