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.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana (00-CV-1713-C) -------------------- 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),

et seq. In reviewing a grant of summary judgment, we apply the

same standard as does the district court. Deas v. River West,

L.P.,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(b). Federal law determines when a claim “accrues”

under the FTCA. Quinton v. United States,

(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.,

(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.

. We have

2 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

. 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

3 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,

(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.,

, 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,

.

This appeal is without arguable merit and is thus frivolous.

Howard v. King,

(5th Cir. 1983). As such, it

is DISMISSED. See 5TH CIR. R. 42.2.

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