Appendix — Wyatt v. United States

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED DECEMBER 1, 2003

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. DRO-1-CV-86-OG

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit

Judges.

PER CURIAM:*

* Pursuant to STH 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this opinion should not be published and is not precedent except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.

2a

Appendix A

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 (Sth 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 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

~ Oo ne

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Appendix A

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, 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

(Sth Cir.2002). As a result, this Court AFFIRMS the district

court’s judgment.

AFFIRMED.

4a

APPENDIX B — ORDER ACCEPTING IN PART

RECOMMENDATION OF MAGISTRATE JUDGE OF

THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, DEL RIO DIVISION

FILED FEBRUARY 3, 2003

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

CAUSE NO. DR-01-CA-086-OG

SYLVIA KNOHR WYATT, and

BARBARA KNOHR-HURTADO,

Plaintiffs,

V.

UNITED STATES OF AMERICA,

Defendant.

ORDER ACCEPTING IN PART

RECOMMENDATION OF MAGISTRATE JUDGE

Before the Court is the supplemental report and

recommendation of United States Magistrate Judge Dennis

G. Green (docket no. 36), and the objections of plaintiffs.

The Court has reviewed the entire record, including

Magistrate Judge Green’s original report and

_ recommendation (docket no. 19) in which he recommended

that defendant’s motion to dismiss be granted. The Court

> et ae Ah Rt rm ed Pee Oe

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Appendix B

agrees with Magistrate Judge Green’s Original

recommendation that “the plaintiffs had information available

to them which, if actively pursued, would have shown long

before 1994 that the U.S. Government was responsible for

their detention and subsequent transfer to Germany.” In

addition, the magistrate judge stated that: “To allow this

lawsuit to proceed in the face of the obstacles noted above

would require the court to ignore legal principles and statutes

which it is sworn to follow. This it cannot do.” The Court

adopts the well-reasoned recommendation of the magistrate

judge, and will grant the government’s motion to dismiss on

the ground that plaintiffs’ claims are untimely and therefore

barred by the Federal Tort Claims Act Feb. R. Civ. P 12(b)(1).

The Court also notes that the time limits for filing an FTCA

claim against the United States are jurisdictional and strictly

construed. Houston v. United States Postal Serv., 823 F.3d

896, 902 (Sth Cir. 1987). See also United States v. Kubrick,

444 U.S. 111, 117-18 (1979).

The Court has conducted an independent review

of the record, a de novo review of the matters raised

by the objections, and has reviewed the applicable law.

See 28 U.S.C. § 636(b)(1); Fev. R. Civ. P. 72(b). Based on

that review, it is ORDERED that:

(1) the United States’ motion for reconsideration (docket

no. 31) is GRANTED;

(2) the United States’ motion to dismiss (docket no. 10

is GRANTED;

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Appendix B

(3) the parties’ joint motion to stay (docket no. 29) and

joint motion for certification for interlocutory appeal (docket

no. 31) are DENIED as moot.

SIGNED this 31 day of January, 2003.

s/ Orlando L. Garcia

Orlando L. Garcia

UNITED STATES DISTRICT JUDGE

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APPENPIX C — SUPPLEMENTAL REPORT AND

RECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF TEXAS, DEL RIO DIVISION FILED

DECEMBER 23, 2002

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

CAUSE NO:

DR-01-CA-86-OLG/DG

Sylvia Knohr Wyatt and Barbara Maria Knohr Hurtado,

Plaintiff,

V.

United States of America,

Defendants.

SUPPLEMENTAL REPORT AND

KECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE

Before the court is the parties’ Joint Motion to Stay,

document number 29, and the United States’ Motion for

Reconsideration or, in the Alternative, Joint Motion for

Certification for Interlocutory Appeal, document number 31.

(1) For the reasons already stated in the undersigned’s

report and recommendation of July 2, 2002, document

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Appendix C

number !9, the undersigned recommends that the parties’

Joint Motion to Stay, document number 29, be GRANTED.

(2) The vudersigned further recommends that the United

States’ Motion tor Reconsideration, document number 31,

be GRANTED.

(3) In the alternative, the undersigned further

recommends that the parties’ Joint Motion for Certification

for Interlocutory Appeal, document number 31, be

GRANTED.

(4) The parties may wish to file may wish to file

objections to the above recommer dations. Failure to file

written objections to the findings and recommendations

contained in this report within ten (10) days from the date of

its receipt shall bar an aggrieved party from receiving a

de novo review by the District Court of the findings

and recommendations contained herein, see 28 U.S.C.

§ 636(b)(i)(C), and shall bar an aggrieved party “except upon

grounds of plain error from attacking on appeal the

unobjected-to proposed factual findings and legal conclusions

accepted by the District Court.” See Douglas v. United

Services Automobile Ass'n, 79 F.3d 1415 (5" Cir. 1996).

The Clerk of the Court shall promptly mail copies of this

report to all counsel of record by certified mail, return

receipt requested.

SIGNED on this 23" day of December, 2002.

s/ Dennis G. Green

DENNIS G. GREEN

U.S. MAGISTRATE JUDGE

9a

APPENDIX D — ORDER DECLINING TO ACCEPT

REPORT AND RECOMMENDATION OF THE

UNIYED STATES MAGISTRATE JUDGE OF THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, DEL RIO DIVISION

FILED AUGUST 15, 2002

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

CIVIL ACTION NO. DR-01-CA-86-FB/DG

SYLVIA KNORR WYATT, and

BARBARA MARIA KNORR HURTADO,

Plaintiffs,

VS.

UNITED STATES OF AMERICA,

Defendant.

ORDER DECLINING TO ACCEPT REPORT AND

RECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE

Before the Court is the Report and Recommendation

of the United States Magistrate Judge (docket no. 19),

plaintiffs’ objections (docket no. 20), and defendant’s

response (docket no. 21).

ELE Rest DLA D RE, IMS AT 0! 8 on

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Appendix D

Where no party has objected to a Magistrate Judge’s

Report and Recommendation, the Court. need not conduct a

de novo review of the Memorandum and Recommendation.

See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make

a de novo determination of those portions of the report or

specified proposed findings and recommendations to which

objection is made.”). In such cases, the Court need only

review the Report and Recommendation and determine

whether it is clearly erroneous or contrary to law. United

States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir.), cert. denied,

492 U.S. 918 (1989).

On the other hand, any Report and Recommendation to

which objection has been made requires de novo review by

the Court. Such a review means the Court will examine the

entire record, and will make an independent assessment of

the law. The Court need not, however, conduct a de novo

review when the objeciions are frivolous, conclusive, or

general in nature. Battle v. United States Parcle Comm'n,

834 F.2d 419, 421 (Sth Cir. 1987).

The Court has thoroughly analyzed the parties’

submissions in light of the entire record. As required by

Title 28 U.S.C. § 636(b)(1)(c), the Court has conducted an

independent review of the entire record in this cause and has

conducted a de novo review with respect to those matters

raised by the objections. After due consideration, the Court

concludes defendant’s motion to dismiss should be denied.

Defendant argues this case should be dismissed on

limitations grounds under rule 12(b)(1) of the Federal Rules

of Civil Procedure. Fep. R. Civ. P. 12(b)(1). Specifically,

defendant contezids plaintiffs had information available to

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Appendix D

them in 1982, and certainly in 1984, which would have led a

reasonable person in plaintiffs’ position to inquire whether

the United States government was responsible for

their abduction from their homeland, internment in the

United States, and subsequent deportation to Germany during

World War II. The Magistrate Judge recommends the motion

to dismiss be granted.

“Motions filed under rule 12(b)(1) of the Civil Rules of

Federal Procedure allow a party to challenge the subject

matter jurisdiction of the district court to hear a case.”

Ramming v. United Staizs, 281 F.3d 158, 161 (Sth Cir. 2001),

cert. denied, 112 S. Ct. 2665 (2002). Ultimately, a motion to

dismiss should be granted only if it appears certain plaintiffs

can prove no set of facts in support of their claims which

would entitle them to relief. Id. Additionally, a court must

FED. R. Civ. P. 8(f); see also Mahone y. Addicks Utility Dist.,

836 F.2d 921, 926 (Sth Cir. 1988).

Given that it is early-on in this case, and out of an

abundance of caution, this Court finds it does not appear

certain that plaintiffs can prove no set of facts in support of

their limitations argument. Plaintiffs were children in 1942

when they were forced from their home by Costa Rican

military personnel, confined aboard a military vessel in

deplorable conditions, transferred to the United States, held

in Crystal City, Texas, for approximately one year, then

removed to Germany, where they were exchanged for

American civilians trapped by the war. The 1982 report issued

by the Commission on Wartime Relocation and Interment

focused primarily on the internment of American citizens of

Japanese ancestry. Plaintiffs, who were not Americans at the

time of their release, were of a different race and nationality

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Appendix D

than the subjects upon which the report focused. The Hohri

case, which referenced the report, was brought by

Japanese-American detainees and addressed race-based

wrongs committed against American civilians, living in

America, detained in America by Americans, pursuant to a

widely-publicized executive order. Hohri v. United States,

586 F. Supp. 769 (D.D.C. 1984), aff d in part & rev'd in

part, 782 F.2d 227 (D.C. Cir. 1986), vacated with instructions

to transfer, 482 U.S. 64 (1987). Here, plaintiffs were citizens

of Costa Rica—children living in their own country—when

they were arrested by the military, detained in a foreign

country, and subsequently exchanged for American civilians

in Germany, as part of a “top secret” or “classified” operation

of the United States government. Based upon the nature and

circumstances of plaintiffs’ injuries, to do substantial justice

the motion to dismiss is denicd.

IT IS THEREFORE ORDERED that the Report

and Recommendation of the United States Magistrate

Judge (docket no. 19) is DECLINED pursuant to 28 U.S.C.

§ 636(b)(1) such that the rule 12(b)(1) motion to dismiss

(docket no. 10), filed on April 19, 2002, by defendant United

States of America is DENIED. The above-styled and

numbered cause remains referred to the Magistrate Judge for

pretrial proceedings.

It is so ORDERED.

SIGNED this 13" day of August, 2002.

s/ Fred Biery

FRED BIERY

UNITED STATES DISTRICT JUDGE

l3a

APPENDIX E — REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE OF

THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, DEL RIO DIVISION

FILED JULY 2, 2002

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

CAUSE NO:

DR-01-CA-86-FB/DG

Sylvia Knohr Wyatt and

Barbara Maria Knohr Hurtado,

Plaintiff,

v.

United States of America,

Defendants.

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Before the court is Rule 12(b)(1) motion to dismiss filed

on April 19, 2002, by Defendant United States of America.

This Report and Recommendation is submitted to the court

pursuant to 28 U.S.C. § 636(b)(1). After reviewing the

defendant’s motion and the response filed by the plaintiffs,

the undersigned recommends that the motion be granted and

the case dismissed.

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Appendix E

Background and Procedural History

The plaintiffs claim that at all pertinent times they were

Costa Rican nationals, whose parents were also Costa Rican.

The plaintiffs’ father, Erwin Rafael Knohr, was born and

raised in Costa Rica and his mother’s family, according to

the plaintiff’s complaint, “had been in Costa Rica for many

generations.” The plaintiffs claim that in 1942, “with little

or no warning,” they were forcibly taken from their home in

Costa Rica by military personnel and placed in a vessel, which

they believed to be a troop ship, taken to San Francisco,

California, where they were told they were being provided

assistance by the American Red Cross, and later taken by

train to an internment camp in Crystal City, Texas, where

they were confined for approximately one year. The plaintiffs

were eventually shipped to Germany and exchanged for U.S.

prisoners being held in Germany, presumably because of the

German heritage of the plaintiffs’ father. The plaintiffs also

claim that although they were able to return to Costa Rica

after the war in Germany ended, it took them nearly three

years to do so and that they did not reach Costa Rica until

sometime in 1948. Furthermore, when the plaintiffs returned

to Costa Rica they discovered that their property and personal

belongings had been confiscated or destroyed.

While these events were occurring and for over fifty years

thereafter, the plaintiffs claim they were not aware of the

U.S. Government’s role in their arrest and detention because

they were told that “they were being protected by the

Red Cross and the United States Government.” The plaintiffs

also allege that they did not learn that the United States

15a

Appendix E

Government was ultimately responsible for their arrest,

detention and subsequent transfer to Germany

until one of their family members saw the [NBC]

television program Date Line, on or about

November 30, 1994, which program revealed to

petitioners through a documentary film that the

United States government had not been protecting

them. Instead, the television program showed that

the United States government though the United

States Army planned, developed and carried out

this plot which deprived petitioners of their legal

rights.

Apparently prompted by the television program, the plaintiffs

filed this lawsuit seeking compensation for loss of liberty,

loss of property, personal injury, and mental injury.

Discussion

Motions filed under Rule 12(b)(1) of the Federal Rules

of Civil Procedure challenge they subject matter jurisdiction

of the federal district court. See Fep. R. Civ. P.12(b)(1).

In examining a Rule 12(b)(1) motion like the one filed by

the Government, the court is authorized to consider disputed

facts as well as undisputed facts in the record. See Clark v.

Tarrant County, 798 F.2d 736, 741 (5" Cir. 1986); Williamson

v. Tucker, 645 F.2d 404, 413 (5" Cir. 1981). Ultimately,

however, a motion to dismiss for lack of subject matter

jurisdiction should be granted only if it appears certain that

the plaintiff cannot prove any set of facts in support of his

l6a

Appendix ©

claim that would entitle the plaintiff to relief. Home Builders

Assn. of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006,

1010 (5" Cir. 1998).

The defendant argues that the plaintiffs’ complaint should

be dismissed because their claims are untimely and therefore

barred under the Federal Tort Claims Act, or FTCA. The

FTCA mandates 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 or unless 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). “Although phrased in the disjunctive,

‘this statute requires a claimant to file an administrative claim

within two years [of accrual] and file suit within six months

of its denial.”” Ramming v. United States, 281 F.3d 158, 161

(5" Cir. 2001) (quoting Houston v. United States Postal Serv.,

823 F.2d 896, 902 (5" Cir. 1987)). “A cause of action under

federal law accrues within the meaning of § 2401 (b) ‘when

the plaintiff knows or has reason to know of the injury which

is the basis of the action.’” Ramming, 281 F.3d at 163

(quoting Brown v. Nationsbank Corp., 188 F.3d 579, 589-90

(5" Cir. 1999) (internal quotes and citations omitted)).

In FTCA cases,

[a] plaintiff ... armed with the facts about the

harm done to him, can protect himself by seeking

17a

Appendix E

advice in the medical and legal community.

To excuse him from promptly doing so by

postponing the accrual of-his claim would

undermine the purpose of the limitations statute,

which is to require the reasonably diligent

presentation of tort claims against the

Government.

United States v. Kubrick, 444 U.S. 111, 123 (1979). It is well

established that the FTCA limitations period is a

jurisdictional prerequisite. See Flory v. United States, 138

F.3d 157, 159 (5" Cir. 1998). In the present case, the threshold

issue is determining when the plaintiffs’ claim accrued. Given

the nature of the plaintiffs’ alleged claims and injuries, i.e.,

that they were forcibly brought to the United States from

Costa Rica in 1942, held in an internment camp at Crystal

City, Texas, for approximately one year, and subsequently

“shipped to Germany where the United States exchanged

them for U.S. civilian prisoners,” the plaintiffs’ contention

that they had no knowledge of the U.S. Government’s role

in their detention and subsequent transfer to Germany until

1994 is simply not credible. A reasonable person would have

been on notice long before 1994 that the United States

Government was involved in the plaintiffs’ detention and

subsequent transfer to Germany — or would have inquired

further. See Gonzalez v. United States, 284 F.3d 281, 289

(1* Cir. 2002) (“The standard is an objective one.”).

As explained in the Government’s brief, information about

the United States’ role in the internment and deportation of

Latin Americans of enemy nationalities was available long

before 1994. The Commission on Wartime Relocation and

Internment of Civilians report in 1982, for example, while

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Appendix E

focusing primarily on the internment of Japanese Americans,

also addressed the treatment of persons in the plaintiffs’

position, i.e., persons of enemy nationalities who resided in

Latin American countries and were used for prisoner

exchanges during the Second World War. Furthermore, this

report was cited by both the district and appellate courts in

the Hohri litigation. See Hohri v. United States, 586 F.Supp.

769 (D.D.C. 1984), aff'd in part and rev'd in part, 782 F.2d

227 (D.C. Cir. 1986), reh'g en banc denied, 793 F.2d 304

(D.C. Cir. 1987), vacated with instructions to transfer, 482

U.S. 64 (1987), aff'd on remand, 847 F.2d 779 (Fed. Cir.

1988), cert. denied, 488 U.S. 925 (1988).'

But regardless of whether the plaintiffs had actual

knowledge of the U.S. Government’s role before they saw

the NBC program Date Line in 1994, the court finds that the

plaintiffs’ claims accrued when this information became

public in 1982, and certainly no later than the Hohri decision

in 1984, since an objectively reasonable person would have

known to inquire by that time, if not earlier. See Garza v.

United States Bureau of Prisons, 284 F.3d 930, 935 (8" Cir.

1. Hohri was a lawsuit brought in the 1980s by Japanese

American former internees for monetary damages and declaratory

judgment relief. The district court concluded that all of the plaintiffs’

claims were barred either by sovereign immunity or the applicable

statute of limitations — a decision which was eventually affirmed

and adopted by the court of appeals. See 847 F.2d 779. It should be

noted that the plaintiffs’ attempt in the case at bar to distinguish Hohri

based on the ethnicity of the plaintiffs in that case is highly

unpersuasive at best. The plaintiffs here were interned during the

same time period as the Hohri plaintiffs, pursuant to the same or

similar wartime policies, and were even held in some of the same

internment camps as the Hohrf plaintiffs.

19a

Appendix E

2002) (“a plaintiff’s assertion of when he gained actual

knowledge is not determinative if he did not act reasonably

and, ‘in effect, closed [his] eyes to evident and objective facts

concerning accrual of [his] right to sue.’”’) (quoting Chrysler

Workers Ass'n v. Chrysler Corp., 834 F.2d 573, 579 (6" Cir.

1987)); Ramming, 281 F.3d at 163 (plaintiffs’ claim was time

barred because he “did not conduct an inquiry, diligent or

otherwise, even though [he] knew or had reason to know of

the injury forming the basis of a possible” cause of action

long before the limitations period expired). Although it is

difficult to pinpoint the precise accrual date, there is no

question that the plaintiffs’ claims are untimely. This is true

despite the plaintiffs’ claims of ignorance, for the accrual of

a cause of action. cannot be delayed until a third party informs

an apparently uninformed plaintiff that he may have a claim.

See Bradley v. United States, 951 F.2d 268, 271 (10" Cir.

1991) (“To allow Plaintiff to postpone accrual until he is

passively informed by an outside source that his injury was

negligently inflicted would serve to undermine the purpose

of the limitations statute, that claims against the government

require diligent presentation.’’). To do so would effectively

rewrite § 2401(b) so as to defeat its obvious purpose of

encouraging the prompt presentation of claims. Kubrick, 444

U.S. at 118. That the plaintiffs were minors during their

detention does not alter this analysis, since “the limitations

period [under the FTCA] is not tolled during the minority of

the putative plaintiff; rather ‘his parent’s knowledge of the

injuries is imputed to him’” MacMillan y. United States,

46 F.3d 377, 381 (5" Cir. 1995).

20a

Appendix E

The plaintiffs also argue in their response that the

doctrine of equitable tolling should apply to save their

otherwise untimely claims. Although it is true that principles

of equitable tolling apply to the statute of limitations under

the FTCA, Perez v. United States, 167 F.3d 913, 917 (5" Cir.

1999), the plaintiffs’ circumstances do not justify their use.

See id. at 919 (holding that equitable tolling “is not [a

doctrine] that trial courts have discretion to use whenever

they p'ease . . . [because] [s]tatutes of limitations serve a vital

role ir. blocking stale claims”). In /rwin v. Department of

Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 458 (1990),

the Supreme Court held that equitable tolling is permissible

where the claimant has actively pursued his

judicial remedies by filing a defective pleading

during the statutory period, or where the

complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing

deadline to pass. We have generally been much

less forgiving in receiving late filings where the

claimant failed to exercise due diligence in

preserving his legai rights.

In this case, there is no indication that the plaintiffs attempted

to pursue any judicial remedies prior to 1994, nor is there any

indication that the United States somehow “induced or tricked”

them into allowing the limitations period to pass. On the

contrary, the record indicates that the plaintiffs had information

available to them which, if actively pursued, would have shown

long before 1994 that the U.S. Government was responsible for

their detention and subsequent transfer to Germany. There can

be no equitable tolling of the section 2401(b) limitations period

under such circumstances.

2la

Appendix E

Conclusion

However much the court is appalled by the plaintiffs’

wartime detention and the policies which caused it, the fact

remains that they simply waited too long to file this suit. As

the district court noted in the Hohri decision:

This ruling is not a fresh appraisal of the merits

of the wartime decision, based on what now

appears to be a questionable rationale of military

necessity, to intern 120,000 citizens and residents

because of their race. It may be that timely claims

on their behalf would have prevailed. But it is now

close to forty years after the camps were closed,

and almost that long after the facts essential to

those claims were published. Much time has

passed, memories have dimmed, and many of the

actors have died. These concerns are reflected in

the statutes of limitation, and it is those statutes

which present the ultimate bar to plaintiffs’ claims.

586 F.Supp. at 794. Such is also the case here. To allow this

lawsuit to proceed in the face of the obstacles noted above

would require the court to ignore legal principles and statutes

which it is sworn to follow. This it cannot do.

Recommendation

(1) The Rule 12(b)(!) motion to dismiss filed on

April 19, 2002, by Defendant United States of America

should be GRANTED and this case should be DISMISSED.

228

Appendix E

(2) The parties may wish to file may wish to file

objections to the above recommendations. Failure to file

written objections to the findings and recommendations

contained in this report within ten (10) days from the date of

its receipt shall bar an aggrieved party from receiving 2

de novo review by the District Court of the findings and

recommendations contained herein, see 28 U.S.C.

§ 636(b)(1)(C), and shall bar an aggrieved party “except upon

grounds of plain error from attacking on appeal the

unobjected-to proposed factual findings and legal conclusions

accepted by the District Court.” See Douglas v. United

Services Automobile Ass'n, 79 F.3d 1415 (5" Cir. 1996). The

Clerk shall mail copies of this report to the parties, return

receipt requested. :

SIGNED on this2™ day of July, 2002.

s/ Dennis G. Green

DENNIS G. GREEN

U.S. MAGISTRATE JUDGE

23a ‘

APPENDIX F — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DENYING PETITION FOR REHEARING FILED

FEBRUARY 2, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50346

SYLVIA KNOHR WYATT;

BARBARA KNOHR-HURTADO

Plaintiffs - Appellants

V.

UNITED STATES OF AMERICA

Defendant - Appellee

Appeal from the United States District Court for the

Western District of Texas, Del Rio

ON PETITION FOR REHEARING

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED

24a

Appendix F

ENTERED FOR THE COURT:

s/ Edward C. Prado

United States Circuit Judge