Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.phyllis Schmidt; Earl Schmidt, Appellants, v. United States of America, Appellee, 994 F.2d 843 (8th Cir. 1993)

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US Court of Appeals for the Eighth Circuit - 994 F.2d 843 (8th Cir. 1993) Submitted: May 10, 1993. Filed: June 3, 1993

Before BOWMAN, WOLLMAN, and MAGILL, Circuit Judges.


Phyllis and Earl Schmidt appeal the dismissal of their Federal Tort Claims Act case. The District Court1  based its judgment upon its finding, made after trial, that the Schmidts did not begin their action within six months after the date the Federal Aviation Administration mailed them, by certified mail, its final denial of their claim. Consequently, the court held that the Schmidts' action was not timely filed and is barred by the six-month limitation period in 28 U.S.C. § 2401(b). For reversal, the Schmidts attack the District Court's findings and one of its evidentiary rulings. They also argue that the court erred in declining to apply the principles of equitable estoppel or equitable tolling.2 

Having carefully considered the briefs and arguments of the parties and the record in this case, we conclude that the judgment of the District Court is based on findings of fact that are not clearly erroneous, that no error of law appears, and that an opinion would have no precedential value. Accordingly, the judgment of the District Court is affirmed without opinion.3  See 8th Cir. R. 47B.


The Honorable William G. Cambridge, United States District Judge for the District of Nebraska


In addition, the Schmidts argue in their reply brief that the District Court erred in its method of calculating the six-month limitation period. This issue apparently was not raised in the District Court and thus is not properly before us. In any event, we conclude that the argument has no merit


In reaching our decision, we have not considered any of the exhibits referenced in plaintiffs' motion to exclude certain of defendant's exhibits. The motion is denied as moot