Austin v. US Marshal Service

120 F. App'x 210

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 1, 2005
• Docket: No. 03-35636
• Status: Published

Opinion

MEMORANDUM

*

Plaintiffs Nick Austin and Karen Worthington sued the U.S. Marshal Service under the Federal Tort Claims Act (FTCA), alleging they suffered abuse at the hands of several individual deputy marshals during their time in the witness protection program. The district court granted the government summary judgment on the ground that all claims were barred by the applicable two-year statute of limitations.

While they concede that their claims were untimely, the plaintiffs contend that the U.S. Marshal Service misled them and caused them to delay their filing. They seek to revive their claims by way of equitable estoppel or equitable tolling. Neither is appropriate here.

Equitable estoppel is not available where, as here, the plaintiffs were not “ignorant of the true facts” and did not “detrimentally rely” on the alleged conduct. See United States v. Hemmen, 51 F.3d 883, 892 (9th Cir.1995). Similarly, equitable tolling is not available because the plaintiffs do not allege any circumstances suggesting that they were prevented from, rather than that they neglected to, file their claims in a timely manner. See Foss v. Nat'l Marine Fisheries Serv., 161 F.3d 584, 590-91 (9th Cir.1998); Leorna v. United States Dep’t of State, 105 F.3d 548, 551 (9th Cir.1997).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.