Hoskins v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30428
Summary Calendar
HARRY D. HOSKINS, III, Individually and as
representative of the class of Formosan termite
victims; MRS. HARRY D. HOSKINS, III,
Individually and as representative of the class
of Formosan termite victims,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA; ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(00-CV-1713-C)
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November 21, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Mr. and Mrs. Hoskins (“Appellants”) appeal the district
court’s summary judgment in favor of the government on their claims
raised under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671et seq. In reviewing a grant of summary judgment, we apply the
same standard as does the district court. Deas v. River West,
L.P., 152 F.3d 471, 475 (5th Cir. 1998).
*
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this opinion should not be published and is not precedent except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.
Appellants argue that the district court erred in granting
summary judgment before adequate discovery had been conducted.
Appellants did not file a motion in the district court seeking a
continuance on the summary-judgment hearing based on inadequate
discovery. Therefore, there can be no such error on the part of
the district court.
Appellants further argue that the district court erred in
determining that their negligence-based claims were time barred.
They contend that their claims did not accrue until they discovered
that the government had caused the introduction of Formosan
termites into the New Orleans area. The FTCA 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 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.” See 28
U.S.C. § 2401(b). Federal law determines when a claim “accrues”
under the FTCA. Quinton v. United States, 304 F.2d 234, 235 (5th
Cir. 1962). Appellants’ accrual argument is premised on our
pronouncement that “[T]he discovery rule [] should be applied in
federal cases whenever a plaintiff is not aware of and has [had] no
reasonable opportunity to discover the critical facts of his injury
and its cause." DuBose v. Kansas City S. Ry. Co., 729 F.2d 1026,
1030 (5th Cir. 1984). DuBose, however, was a wrongful-death action
involving an occupational disease and was brought under the Federal
Employers’ Liability Act, not the FTCA. 729 F.2d at 1028. We have
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yet to hold that the “discovery rule” applies to an FTCA claim in
a context similar to this case. Even if we had, however, the
discovery rule would not apply unless Appellants could establish
that they were unaware of, and had no reasonable opportunity to
discover, the critical facts of their injury and its cause. See
id. at 1030. This they could not do.
Appellants misconstrue the district court’s ruling. That
court did not determine that the publication of several newspaper
articles on Formosan termites put the public, and thus Appellants,
on “notice” that the United States caused their injuries. The
district court was merely acknowledging that the alleged source of
the injury was discoverable in the exercise of due diligence.
Similarly, the court did not create an obligation for Formosan
termite victims to seek out information at the public library. It
was merely pointing out that Appellants had a reasonable
opportunity to discover critical facts about the cause of their
injuries but failed to do so. Appellants have not established that
the district court erred in its determination that the critical
facts were reasonably discoverable.
Appellants also argue that the district court erred in
dismissing other claims of potential class members that allegedly
arose prior to the enactment of the FTCA. The court concluded that
even if there were potential plaintiffs who might have learned of
Formosan termite damage prior to the FTCA’s enactment, their claims
would be subject to the two-year statute of limitations that
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existed prior to the enactment of the FTCA, so those claims too
would be time barred.
Appellants do not address the reasoning of the district court
in this regard, much less make a coherent legal argument that the
district court’s ultimate conclusion of time bar was error. Thus,
they have waived this argument on appeal. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). To the extent Appellants
argue that the limitations period has not yet commenced because
those other potential plaintiffs have yet to receive “public
notice,” we do not consider their argument because it was raised
for the first time in their reply brief. See Taita Chem. Co., Ltd.
v. Westlake Styrene Corp., 246 F.3d 377, 384 n.9 (5th Cir. 2001)
(stating that the appellant could not preserve error on claims
through a reply brief).
Appellants also have failed to raise on appeal, and have
therefore waived review of, the district court’s dismissal of Mrs.
Hoskins’s claims for failure to exhaust and the court’s dismissal
of Mr. Hoskins’s claims grounded in intentional tort, strict
liability, and breach of fiduciary duty. See Yohey, 985 F.2d at
224-25.
This appeal is without arguable merit and is thus frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). As such, it
is DISMISSED. See 5TH CIR. R. 42.2.
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