JENNIE E. CHOMIC, Personal Representative of the Estate of James J. Gorjup, Deceased v. United States of America; United States Department of Veterans Affairs

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0247P (6th Cir.)
File Name: 04a0247p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JENNIE E. CHOMIC, Personal
Representative of the Estate
of James J. Gorjup, Deceased,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS,
Defendants-Appellees.
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No. 03-1174
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00112—Robert Holmes Bell, Chief District Judge.
Argued: April 20, 2004
Decided and Filed: July 28, 2004
Before: RYAN, DAUGHTREY, and CLAY, Circuit
Judges.
2 Chomic v. United States, et al. No. 03-1174
_________________
COUNSEL
ARGUED: Robert F. James, OLSMAN, MUELLER &
JAMES, Berkley, Michigan, for Appellant. J. Joseph Rossi,
UNITED STATES ATTORNEY, Grand Rapids, Michigan,
for Appellees. ON BRIEF: Robert F. James, OLSMAN,
MUELLER & JAMES, Berkley, Michigan, for Appellant.
Ronald M. Stella, UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellees.
_________________
OPINION
_________________
RYAN, Circuit Judge. Jennie E. Chomic, the Personal
Representative of the Estate of James Gorjup, brought suit
against the United States under the Federal Tort Claims Act
(FTCA), based on the events leading up to Gorjup’s death.
Although Chomic named the Department of Veterans Affairs
as a defendant, a federal agency cannot be sued under the
FTCA. Chomic’s exclusive remedy is an action against the
United States. See 28 U.S.C. § 2679(a) and (b)(1).
Chomic appeals from two orders the district court entered,
which disposed of all of her claims. The first granted the
defendants’ Motion for Reconsideration and granted, in part,
the defendants’ Motion to Dismiss. The second granted the
defendants’ Motion for Summary Judgment and dismissed the
plaintiff’s claim in its entirety. At issue in this appeal is
whether the statute of limitations found in the FTCA bars the
plaintiff’s suit. We hold that it does and therefore we shall
affirm the judgment of the district court.
I.
This case is significant in that it presents this court with the
opportunity to address for the first time the issue of when a

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No. 03-1174 Chomic v. United States, et al. 3
claim for wrongful death accrues for purposes of the FTCA
where both an injury and its cause are known prior to death
and where state law provides a derivative, rather than an
independent, cause of action for wrongful death.
The facts are not in dispute insofar as this appeal is
concerned. That is, taking the facts as alleged by the plaintiff,
the government argues that the plaintiff’s suit was properly
dismissed because she failed to file an administrative claim
within the two-year statute of limitations period applicable to
claims brought under the FTCA.
On October 21, 1998, while Gorjup was a resident at the
Department of Veteran Affairs Medical Center in Michigan,
he fell and suffered a hip fracture. Chomic alleges that the
fall was the result of the negligence and/or medical
malpractice of the government’s agents. The plaintiff further
alleges that the injuries arising from this fall were a proximate
cause of Gorjup’s death on November 23, 1998.
The district court pointed out that “Mr. Gorjup had been
declared legally incapacitated by reason of mental illness
prior to his fall on October 21, 1998.” Chomic was appointed
as Gorjup’s full guardian on May 8, 1997, and on May 11,
1999, Gorjup having died, Chomic was appointed as the
Personal Representative of Gorjup’s estate.
The district court noted that Chomic “made a formal
administrative claim against the United States on behalf of
[Gorjup] on November 17, 2000. The claim was filed within
two years of Mr. Gorjup’s death, but not within two years of
the injuries he suffered on October 21, 1998.” The
Department of Veterans Affairs denied the claim. On
February 19, 2002, Chomic filed suit against the United
States under the FTCA, seeking damages under Michigan’s
Wrongful Death Act.
The government filed a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1) and/or (6) “on the grounds that this action
4 Chomic v. United States, et al. No. 03-1174
[was] barred by the two-year statute of limitations in
28 U.S.C. § 2401(b).” The United States District Court for
the Western District of Michigan initially denied this motion,
but after the government moved for reconsideration, the court
vacated its earlier “opinion and order” and granted, in part,
the government’s motion to dismiss. The court stated that it
was granting “[t]he government’s motion to dismiss . . . to the
extent the government seeks a ruling that the cause of action
accrued on [the date of Gorjup’s injury].” The court denied
the government’s motion to the extent it sought dismissal of
the plaintiff’s FTCA claim because “[t]he question of
equitable tolling . . . raises factual issues that have not been
fully presented to this Court.”
The government then filed a Motion for Summary
Judgment based on 1) the plaintiff’s failure to file an
administrative claim within the statute of limitations period
and 2) the lack of a basis for equitable tolling. The district
court granted this motion on December 31, 2002, and
dismissed Chomic’s claim in its entirety. Chomic appealed.
II.
We review de novo a district court’s grant of a motion to
dismiss under Fed. R. Civ. P. 12(b)(6). Montgomery v.
Huntington Bank, 346 F.3d 693, 697-98 (6th Cir. 2003).
Likewise, we review de novo a district court’s decision to
grant summary judgment based on a purely legal question.
Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th
Cir. 2002).
III.
A.
Chomic argues that the district court erroneously concluded
that the plaintiff’s cause of action accrued on the date of
Gorjup’s injury, rather than on the date of his death. She
relies on this court’s holding in Kington v. United States, 396

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No. 03-1174 Chomic v. United States, et al. 5
F.2d 9 (6th Cir. 1968), to argue that “under the FTCA, ‘the
claim for wrongful death accrues upon the date of death.’”
Chomic asks this court to disregard the nature of a state’s
cause of action for wrongful death and hold unequivocally
“that the date of accrual for wrongful death actions brought
under the FTCA is the date of death.” We decline to do so.
The FTCA grants a limited waiver of sovereign immunity
and allows tort claims against the United States “in the same
manner and to the same extent as a private individual under
like circumstances.” 28 U.S.C. § 2674 (1994). In other
words, “[t]he Act waives sovereign immunity to the extent
that state-law would impose liability on a private individual
in similar circumstances.” Young v. United States, 71 F.3d
1238, 1241 (6th Cir. 1995) (internal quotation marks and
citation omitted). Nevertheless, the FTCA provides, in
pertinent part:
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
. . . .
28 U.S.C. § 2401(b) (emphasis added).
The Supreme Court explained that this limiting provision
is the balance struck by Congress in the context of tort
claims against the Government; and we are not free to
construe it so as to defeat its obvious purpose, which is
to encourage the prompt presentation of claims. . . .
We should also have in mind that the Act waives the
immunity of the United States and that in construing the
statute of limitations, which is a condition of that waiver,
we should not take it upon ourselves to extend the waiver
beyond that which Congress intended. . . . Neither,
however, should we assume the authority to narrow the
waiver that Congress intended.
6 Chomic v. United States, et al. No. 03-1174
United States v. Kubrick, 444 U.S. 111, 117-18 (1979)
(internal citations omitted). The Supreme Court noted,
however, that legislative history is silent as to “when a tort
claim ‘accrues’ within the meaning of 28 U.S.C. § 2401(b).”
Id. at 119 n.6.
In actions based on negligence or medical malpractice, the
Supreme Court has held that federal law controls as to when
a claim accrues under the FTCA. Id. at 123. In Kubrick, the
issue before the Supreme Court was “whether [a tort claim
against the United States] ‘accrues’ within the meaning of the
[FTCA] when the plaintiff knows both the existence and the
cause of his injury or at a later time when he also knows that
the acts inflicting the injury may constitute medical
malpractice.” Id. at 113. The plaintiff in that case filed suit
under the FTCA “alleging that he had been injured by
negligent treatment in [a] VA hospital.” Id. at 115. The
dispute in that case was whether, for purposes of the FTCA,
Kubrick’s claim accrued in 1969 when he “was aware of his
injury and its probable cause,” or in 1971, when he learned
that the treatment causing his injury constituted medical
malpractice. Id. at 118. The Court held that a negligence or
medical malpractice claim accrues within the meaning of
§ 2401(b) when a plaintiff knows of both the existence and
the cause of his injury, and not at a later time when he also
knows that the acts inflicting the injury may constitute
negligence or medical malpractice. Id. at 121-23. The Court
reasoned:
A plaintiff . . . armed with the facts about the harm done
to him, can protect himself by seeking 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.
Id. at 123.

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No. 03-1174 Chomic v. United States, et al. 7
It is also generally accepted that federal law controls when
a wrongful death claim accrues under the FTCA. See, e.g.,
Johnston v. United States, 85 F.3d 217, 222 (5th Cir. 1996);
Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991);
Fisk v. United States, 657 F.2d 167, 170 (7th Cir. 1981);
Kington, 396 F.2d at 11. Thus, the question we must answer
is when, as a matter of federal law, a claim for wrongful death
accrues for purposes of § 2401(b) where both an injury and its
cause are known prior to death and where state law provides
a derivative, rather than an independent, cause of action for
wrongful death. We have not previously addressed this
question.
In Kington, the issue before this court was whether an
action, brought under the FTCA for the “wrongful death” of
the plaintiff’s decedent, “accrued” upon the date of death or
at some later date when the plaintiff learned of the cause of
death. Id. at 9-10. The Kington court rejected the plaintiff’s
argument that a discovery rule, similar to the rule the
Supreme Court would adopt in Kubrick, should apply, stating
that it could find no case in which the discovery rule had been
applied to a wrongful death claim. Id. at 11. After noting that
federal law determines “when the statute of limitations begins
to run,” id., the Kington court concluded that under the
FTCA, “the claim for wrongful death accrues upon the date
of death,” id. at 12. In a per curiam opinion in Garrett v.
United States, 640 F.2d 24 (6th Cir. 1981), we again held that
an action for wrongful death, brought under the FTCA,
“accrues” upon the date of death, and not at some later date
when the plaintiff learns of the cause of death. Id. at 26.
In neither of these cases did we consider whether, for
purposes of § 2401(b), a claim for wrongful death can accrue
before death where both an injury and its cause are known
before death and where state law provides a derivative, rather
than an independent, cause of action for wrongful death.
Although the Kington court stated that it “seem[s]” that the
FTCA creates “a cause of action for wrongful death
independent of state law,” Kington, 396 F.2d at 11, that
8 Chomic v. United States, et al. No. 03-1174
statement is dicta and is in direct conflict with controlling
Supreme Court precedent. In Feres v. United States, 340 U.S.
135 (1950), the Court explicitly stated that the FTCA did not
create “new causes of action but [merely provided for the]
acceptance of liability under circumstances that would bring
private liability into existence.” Id. at 141. As noted by the
Fourth Circuit, “[s]tate law determines whether there is an
underlying cause of action; but federal law defines the
limitations period and determines when that cause of action
accrued.” Miller, 932 F.2d at 303.
Thus, we must look to Michigan law to determine the
underlying cause of action in this case. Michigan’s Wrongful
Death Act, Mich. Comp. Laws § 600.2922 (2000), “clearly
provides not that death creates a cause of action, but that
death does not extinguish an otherwise valid cause of action.”
Hardy v. Maxheimer, 416 N.W.2d 299, 307 n.17 (Mich.
1987). The Michigan Supreme Court has rejected the
argument that the focus of the act is on death itself. Id.
Instead, the proper focus is on the underlying wrong which
caused the death. Id. Michigan law is also clear that the
cause of action recognized in the Wrongful Death Act “is a
derivative one whereby the personal representative of the
deceased stands in the latter’s shoes.” Xu v. Gay, 668 N.W.2d
166, 174 (Mich. Ct. App. 2003). Thus, “[t]he mere fact that
[Michigan’s] legislative scheme requires that suits for tortious
conduct resulting in death be filtered through the so-called
‘death act’ . . . does not change the character of such actions
except to expand the elements of damage available.”
Hawkins v. Reg’l Med. Labs., 329 N.W.2d 729, 735 (Mich.
1982).
Chomic alleged “[t]hat as a direct and proximate result of
the negligent acts and malpractice of the agents and
employees of the defendant, . . . the plaintiff’s decedent
suffered injury and died as a result.” Federal law is clear that
a negligence or medical malpractice claim accrues within the
meaning of § 2401(b) when a plaintiff knows of both the
existence and the cause of his injury. Kubrick, 444 U.S. at

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No. 03-1174 Chomic v. United States, et al. 9
121-23. Thus, as Michigan law does not create an
independent cause of action for wrongful death, and as the
record in this case is clear that on October 21, 1998, both the
existence of Gorjup’s injury and its alleged cause were
known, we apply Kubrick to hold that the plaintiff’s cause of
action accrued on the date of injury and not at the later date of
death.
In so holding, we disagree with the approach taken by our
sister circuit in Johnston, 85 F.3d 217. In that case, the Fifth
Circuit addressed a nearly identical question and held, “as a
matter of federal law, that a wrongful death claim cannot
accrue prior to death” if the decedent had an available cause
of action at the time of his death. Id. at 224. The wrongful
death statute in that case created a derivative, not an
independent, cause of action. Id. at 219. The Fifth Circuit
rejected the government’s argument that the court should
consider the nature of the plaintiff’s cause of action under
state law in determining the accrual date under the FTCA,
stating that “[s]uch a rule would ignore the clear
congressional expression that every plaintiff have two full
years to prosecute an FTCA claim, undermine uniformity in
accrual dates, and serve as an affront to the equitable remedial
purpose of the FTCA.” Id. at 224.
We disagree with the Fifth Circuit’s conclusion because we
think that its reasoning is flawed. Johnston ignores the
fundamental principle that state law identifies whether a
plaintiff has a cause of action and determines what that cause
of action is; in so doing, it fails to properly apply the Supreme
Court’s teaching in Kubrick. In Johnston, just as in this case,
state law provided merely that death did not extinguish an
otherwise valid cause of action. It did not provide for an
independent cause of action for survivors. Rather, as the
court noted, Johnston’s “claim [wa]s premised on allegations
of medical malpractice.” Johnston, 85 F.3d at 222. Thus,
Supreme Court precedent had already settled when such a
claim accrues as a matter of federal law. Kubrick, 444 U.S.
at 121-23. Nevertheless, Johnston failed to apply Kubrick
10 Chomic v. United States, et al. No. 03-1174
and failed to explain why Kubrick was inapplicable to that
medical malpractice claim. Furthermore, Johnston failed to
explain why, when a cause of action for medical malpractice
accrues when a plaintiff knows of both the existence and the
cause of his injury, the clock should be set to zero on the
same claim if, later on, the injured person dies. The Fifth
Circuit offered no justification for its departure from Kubrick.
Johnston is also unpersuasive because it ignored the fact
that state law did not create an independent cause of action for
wrongful death. The court stated: “Implicit in a wrongful
death action is a wrongful death. It is the most basic fact of
which a wrongful death plaintiff must be aware. Quite simply,
until there is a death, regardless of its underlying cause, there
can be no wrongful death action.” Johnston, 85 F.3d at 224.
This quote reveals the Johnston court’s failure to comprehend
the difference between an independent cause of action for
wrongful death and a state statute merely providing that death
does not extinguish a preexisting cause of action. As liability
under the FTCA depends on the existence of a cause of action
under state law, it is important to correctly discern the nature
of the cause of action created by state law. Johnston fails
adequately to do so.
Furthermore, the equitable considerations cited by the Fifth
Circuit in Johnston are unpersuasive. The court stated that it
was “reticent” to require “plaintiffs to speculate in a macabre
fashion as to the fate of their loved-ones and file premature
suits for wrongful death based upon this speculation.” Id.
The rule we adopt today does not require the speculation the
Fifth Circuit fears; rather, it merely provides that in states
with no independent cause of action for wrongful death, once
a person knows of an injury and its cause, he has two years to
file a claim based on negligence or medical malpractice. An
intervening death does not alter this rule, and we find nothing
inequitable in this straightforward application of Kubrick.
Furthermore, this rule is in keeping with the purpose of
§ 2401(b), which, as explained by the Supreme Court, “is to

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No. 03-1174 Chomic v. United States, et al. 11
require the reasonably diligent presentation of tort claims
against the Government.” Kubrick, 444 U.S. at 123.
Finally, the Fifth Circuit’s claim that “every circuit that has
addressed the accrual of wrongful death claims has reached
the same conclusion: A wrongful death claim cannot accrue
before death for FTCA purposes,” is inaccurate. Johnston, 85
F.3d at 222. With the exception of Johnston, circuit courts
either have not encountered the issue, have reached contrary
decisions, or base their decisions on the fact that state law
creates an independent cause of action for wrongful death.
Most of the courts of appeal that have considered accrual
questions under the FTCA have applied Kubrick’s discovery
rule to extend the period in which a plaintiff may file suit to
some point after death when the cause of death is known.
See, e.g., Skwira v. United States, 344 F.3d 64, 75 (1st Cir.
2003), cert. denied, ___ S. Ct. ___, 2004 WL 297024 (U.S.
Jun. 14, 2004); Garza v. U.S. Bureau of Prisons, 284 F.3d
930, 934 (8th Cir. 2002); Diaz v. United States, 165 F.3d
1337, 1340 (11th Cir. 1999); In Re Swine Flu Prods. Liab.
Litig., 764 F.2d 637, 639 (9th Cir. 1985); Drazan v. United
States, 762 F.2d 56, 59 (7th Cir. 1985). These courts simply
have not considered whether a cause of action for wrongful
death can accrue before death for FTCA purposes.
Although Johnston purports to rely on the Seventh Circuit’s
decision in Fisk, 657 F.2d at 170, that case supports the
holding we reach today. In Fisk, the question was “whether
a wrongful death claim brought pursuant to the [FTCA] is
barred by the two-year statute of limitations . . . when more
than two years have elapsed since the accrual of a personal
injury claim for the wrongful act which caused the death, but
less than two years have elapsed since the date of death.” Id.
at 168. Although the court stated that “[i]t is well settled that
federal law . . . controls when a claim [under the FTCA]
accrues for statute of limitation purposes,” it looked to state
law to determine the nature of the cause of action. Id. at 170.
The court noted that the purpose of Indiana’s wrongful death
12 Chomic v. United States, et al. No. 03-1174
statute was “not to compensate for the injury to the decedent,
but rather to create a cause of action to provide a means by
which the decedent’s survivors may be compensated for the
loss they have sustained by reason of the death.” Id. The
court analyzed Indiana’s wrongful death statute and
concluded that it “creates a new and independent cause of
action for wrongful death under state law,” rather than a
derivative cause of action. Id. Thus, the court held “that
when a state statute creates an independent cause of action for
wrongful death, it cannot accrue for FTCA purposes until the
date of the death which gives rise to the action.” Id. at 171.
The Fisk court rejected the government’s argument that the
rule from Kubrick should apply to bar the claim because the
decedent knew of the existence of an injury and its cause
more than two years before the plaintiff filed her claim. Id. at
171-72. The court pointed out that under state law, the
wrongful acts of the government’s agent
gave rise to two separate claims: a personal injury claim
of the decedent, to which the Government was exposed
for two years after it accrued, as per the Kubrick rule; and
a wrongful death claim of the decedent’s survivors, to
which the Government was exposed for two years after
it accrued.
Id. at 172. Today, we follow the Seventh Circuit’s lead in
Fisk and look to the nature of a state’s wrongful death statute
in determining when a cause of action thereunder accrues for
purposes of the FTCA.
Our holding is also supported by the Fourth Circuit’s
holding in Miller, 932 F.2d 301. In Miller, the Fourth Circuit
applied Kubrick’s discovery rule to a wrongful death action
brought under the FTCA. The plaintiff claimed “medical
malpractice by government doctors as the cause of [the
decedent’s] death.” Id. at 302. The court acknowledged that
federal law “defines the limitations period and the time of the

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No. 03-1174 Chomic v. United States, et al. 13
claim’s accrual,” but looked to Virginia law for the
underlying cause of action. Id. The court noted:
Virginia’s wrongful death statute does not create a new
cause of action, but only a right of action in a personal
representative to enforce the decedent’s claim for any
personal injury that caused death. . . . For this reason, a
wrongful death action under Virginia law is necessarily
time-barred if at the time of the decedent’s death her
personal injury claim based on the tortious conduct that
ultimately caused death is already time-barred.
Id. at 303 (internal citations and footnote omitted).
The court applied the rule from Kubrick and held that the
plaintiff’s claim under the FTCA was “barred by [the
decedent’s] discovery two years and a day before her death of
the condition that finally caused her death, and of the cause of
the condition.” Id. at 304. The court rejected the plaintiff’s
argument that the decedent’s claim could not have accrued on
the date of discovery because the decedent “did not then
realize that the failure to make early diagnosis was going to
cause her death.” Id. The court explained:
Under Kubrick, a medical malpractice claim such as that
here in issue accrues when a claimant first knows of an
injury and its cause, and not only later when it is first
realized that a particular legal claim may be maintainable
in consequence of the injury. The question under
Kubrick and Virginia wrongful death law in combination
is not, therefore, whether at the critical time [the
decedent] knew that she had a personal injury that would
eventually cause her death, but only whether she then
knew that she had an injury and, as is now alleged, an
injury caused by the failure of [the government doctor] to
have diagnosed her condition in time to prevent or
minimize the injury that she indisputably then knew to
exist.
14 Chomic v. United States, et al. No. 03-1174
Id. (emphasis in original).
The Fourth Circuit declined to resurrect a cause of action
for medical malpractice that expired a day before the
decedent’s death merely because the decedent had died. This
holding is inconsistent with the rationale of Johnston, which
held that regardless of whether state law creates an
independent cause of action for wrongful death, “until there
is a death, regardless of its underlying cause, there can be no
wrongful death action.” Johnston, 85 F.3d at 224. Although
Johnston declined to state whether its holding would be the
same if the decedent’s underlying claim had expired prior to
his death, the court’s logic is inconsistent with that of the
Fourth Circuit, and its claim of circuit uniformity is
unfounded. Thus, we decline to adopt the Fifth Circuit’s
approach and instead follow the lead of the Fourth and
Seventh Circuits.
B.
Chomic also argues that the district court erroneously
dismissed her FTCA claim on statute of limitations grounds
when the statute of limitations should have been tolled. This
argument is without merit.
First, Chomic argues that Gorjup’s incompetency should
have tolled the statute of limitations. It is undisputed that the
government’s alleged misconduct did not cause the
decedent’s incompetency, and courts have uniformly held that
mental incompetency, standing alone, will not toll the running
of the statute of limitations under the FTCA. See e.g., Barren
by Barren v. United States, 839 F.2d 987, 992 (3d Cir. 1988);
Zeidler v. United States, 601 F.2d 527, 529 (10th Cir. 1979)
(citing Casias v. United States, 532 F.2d 1339, 1342 (10th
Cir. 1976)); Williams v. United States, 228 F.2d 129 (4th Cir.
1955), cited in Jackson v. United States, 234 F. Supp. 586,
587 (E.D.S.C. 1964). Furthermore, the language of § 2401(b)
contains no saving clauses for disabilities of any kind.
Rather, as the Supreme Court stated in Kubrick, the section is

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No. 03-1174 Chomic v. United States, et al. 15
a condition of the United States’s waiver of sovereign
immunity which is to be narrowly construed. 444 U.S. at
117-18. Courts are not at liberty to “take it upon [them]selves
to extend the waiver beyond that which Congress intended.”
Id. at 118.
Second, Chomic argues that she should have been able to
take advantage of Michigan law to toll the statute of
limitations. The district court rejected this argument, stating:
“Plaintiff cannot take advantage of Michigan’s statute of
limitations or tolling provisions for survival-type actions
brought under the Wrongful Death Act.” The Supreme Court
has recognized the general principle that the United
States, as sovereign, is immune from suit save as it
consents to be sued . . . and the terms of its consent to be
sued in any court define that court’s jurisdiction to
entertain the suit. . . . Like a waiver of immunity itself,
. . . [the] Court has long decided that limitations and
conditions upon which the Government consents to be
sued must be strictly observed and exceptions thereto are
not to be implied.
Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981) (internal
quotation marks and citations omitted). Accordingly, the
statute of limitations in § 2401(b) must be strictly construed,
and this court may not extend it by relying on the tolling
provisions of state law. Kubrick, 444 U.S. at 117-18; Miller,
932 F.2d at 303; Maahs v. United States, 840 F.2d 863, 866
n.4 (11th Cir. 1988).
Third, Chomic argues that she was entitled to equitable
tolling. We have stated that “[a]lthough equitable tolling may
be applied in suits against the government, courts will only do
so ‘sparingly,’ and not when there has only been ‘a garden
variety claim of excusable neglect.’” Ayers v. United States,
277 F.3d 821, 828 (6th Cir.) (quoting Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990)), cert. denied, 535
U.S. 1113 (2002). Chomic has pointed to no evidence that
16 Chomic v. United States, et al. No. 03-1174
would entitle her to equitable tolling and has failed to show
that any of the factors this court identified in Andrews v. Orr,
851 F.2d 146 (6th Cir. 1988), weigh in her favor. Instead, the
record is clear that Chomic had seventeen months as Personal
Representative in which she could have investigated and filed
a timely claim. We have stated that a “lack of diligence by a
claimant acts to defeat his claim for equitable tolling.”
Cantrell v. Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1180
(6th Cir. 1995). This assignment of error lacks merit.
IV.
In conclusion, we hold that where state law provides a
derivative, rather than an independent, cause of action for
wrongful death, and where the underlying cause of action
sounds in negligence or medical malpractice, a claim for
wrongful death under the FTCA accrues on the date when
both an injury and its cause are known. Accordingly, the
judgment of the district court is AFFIRMED.

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