                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 20, 2004

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                             No. 03-30694



JOANN WAGGONER,

                                             Plaintiff-Appellant,

                                versus

UNITED STATES OF AMERICA,

                                             Defendant-Appellee.



          Appeal from the United States District Court
              for the Western District of Louisiana


                            ( 01-CV-2472 )

Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Joann Waggoner brought this Federal Tort Claims Act (“FTCA”)

action, alleging that doctors at a Veterans Affairs hospital

wrongfully caused her husband’s death by failing to properly

diagnose and treat his heart disease. The district court dismissed

her claim for lack of subject matter jurisdiction because it found

the claim time-barred by 28 U.S.C. §§ 2401(b) and 2675(a).       Because

this finding was contrary to Waggoner’s undisputed allegations and

     *
      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this opinion should not be published and is not precedent except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.
affidavit testimony, we REVERSE and REMAND.

                                   I

     Mrs. Waggoner’s husband, a sixty-two-year-old smoker with high

cholesterol, began to suffer chest pains in August 1996.        He went

to a VA hospital for treatment and was given a stress test and an

electrocardiogram (“EKG”).     A later stress test was scheduled but

never given.   Mrs. Waggoner asserts that the EKG showed signs of

heart disease that should have been noticed by the doctors, but the

doctors assured her that Mr. Waggoner was not suffering from heart

disease.    Instead,    the   doctors   diagnosed   Mr.   Waggoner   with

degenerative joint disease in the spine.      He was given medication

to alleviate his chest pains, but it persisted.            Mr. Waggoner

returned to the VA hospital in late 1997, where again he and Mrs.

Waggoner were told that he did not suffer from heart disease.          He

suffered a major heart attack on December 13, 1997, and died on

January 4, 1998.       Mrs. Waggoner received her husband’s death

certificate four days later on January 8, 1998, which indicated the

cause of death as congestive heart failure and coronary heart

disease.   She filed an administrative claim with the Office of

Regional Counsel for Veteran’s Affairs on January 6, 2000, more

than two years after her husband’s death but less than two years

after her receipt of the death certificate.

     Based on these allegations, Waggoner asserts that while she

knew of her husband’s injury on the day of his death, she did not



                                   2
know, and could not have reasonably known, the alleged cause of his

injury - the doctors’ failure to diagnose and treat Mr. Waggoner’s

coronary    heart   disease.    Considering   the   doctors’   various

assurances that her husband did not suffer from heart disease, and

in light of the other possible causes of Mr. Waggoner’s heart

attack, Mrs. Waggoner asserts that she could not have known of the

cause until she received the death certificate on January 8, 2004.

In her view, this is the day her cause of action accrued.

     The district court rejected her allegations, finding that–

            [she] was armed with the facts about the harm
            done prior to 8 January 1998, even if she was
            not certain that the Alexandria VA had been
            negligent when treating her husband. . . . At
            [the time Mr. Waggoner suffered his heart
            attack], plaintiff had knowledge of her
            husband’s heart problems and reason to believe
            that the Alexandria VA had failed to treat
            those problems correctly. . . . Considering
            the history of her husband’s illness, []
            Waggoner cannot claim she had no knowledge of
            the existence and cause of his injury until
            . . . she received the death certificate on 8
            January 1998.

Based on this finding, the court dismissed the suit for lack of

subject matter jurisdiction because it was not presented within the

applicable two-year statute of limitations.

                                  II

     We review de novo a district court’s grant of a Rule 12(b)(1)

motion to dismiss.1   To the extent that a court rests its dismissal



     1
         Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

                                   3
on a resolution of disputed facts, we review the court’s fact

findings for clear error.2      We will hold a fact finding to be

clearly erroneous when we “have a firm conviction, based on a

review of the entire record, that a mistake has been made.”3

     The FTCA requires a plaintiff to present her claim to the

appropriate federal agency within two years of the actions’s

accrual.4    “It is well-settled that these limitation periods are

jurisdictional,”5 and “[w]hile substantive state law determines

whether a cause of action exists, federal law determines when that

claim accrues.”6    No provision of the FTCA explains when a cause of

action accrues.     The Supreme Court, however, explained in United

States v. Kubrick that a claim under the FTCA accrues when a

plaintiff knows or reasonably should have known “the existence and

the cause of his injury,” although a plaintiff need not know that




     2
         Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
     3
         Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
     4
       28 U.S.C. § 2401(b) (providing 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”); id. at § 2675(a) (providing that “[a]n action
shall not be instituted upon a claim against the United States for
money damages . . . unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall
have been finally denied”).
     5
       Flory v. United States, 138 F.3d 157, 159 (5th Cir. 1998)
(citing Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995)).
     6
         Johnston v. United States, 85 F.3d 217, 219 (5th Cir. 1996).

                                   4
the injury was the result of negligence.7

                                        III

     After a review of the complaint, answer, and affidavits, we

can find no reason why Mrs. Waggoner knew or should have known the

alleged failure to properly diagnose and treat her husband’s heart

disease.       Mrs.    Waggoner    presented         evidence   and    allegations

indicating that she could not have reasonably known of the improper

diagnosis and treatment until she received the death certificate.

Namely, Waggoner provided affidavit testimony that the doctors

assured her that her husband did not suffer from heart disease, as

well as testimony that she believed a person could die of a heart

attack for many reasons.          She provided evidence that her husband

was a sixty-two-year-old smoker with high cholesterol, and finally,

she states the obvious - a heart attack can result from a variety

of factors and causes.

     The government provided no evidence to rebut her allegations

and evidence.     Instead, the government assumed the cause of action

accrued on the day of death and focused solely on responding to

Waggoner’s alternative assertion that the cause of action should

not accrue until an expert advised her of the possible negligence.

By doing so, the government ignored Waggoner’s argument that the

cause    of   action   accrued     on   the    day    she   received    the   death

certificate,     which    placed    her       claim    within   the    statute   of


     7
         444 U.S. 111, 113, 122-24 (1979).

                                          5
limitations.    The government presents no evidence and does not

explain why a reasonable person in Mrs. Waggoner’s position could

have known or suspected the medical malpractice when Mr. Waggoner

suffered his heart attack.

     Although the district court correctly held that the accrual

date could not be tolled until she knew the injury resulted from

negligence, the facts indicate that the court erred in finding that

Waggoner knew the cause of her husband’s death at the time of his

heart attack. Mrs. Waggoner’s allegations are uncontroverted. The

facts indicate that a reasonable person in her situation could not

have reasonably known or suspected the medical malpractice.           After

undergoing various tests, the doctors repeatedly assured Mrs.

Waggoner that her husband did not suffer from heart disease.

Considering    the   allegations   and   evidence   presented,   and   the

government’s    failure   to   present   any   evidence   disputing    her

allegations, we find that the district court clearly erred in

finding that Waggoner knew of the cause of her husband’s injury.

Her claim did not accrue until she was “armed with the facts about

the harm done,” giving her knowledge, suspicion, or the ability to

discover the cause.8      This could have occurred no earlier than


     8
      Kubrick, 444 U.S. at 122-23 (noting that Kubrick, unlike the
plaintiff in this case, “armed with the facts about the harm done
to him, can protect himself by seeking advice in the medical and
legal community,” and explaining that a party’s injury “may be
unknown or unknowable until the injury manifests itself; and the
facts about causation may be in the control of the putative
defendant, unavailable to the plaintiff or at least very difficult

                                    6
January 8, 1998, when the death certificate first brought to her

attention that her husband had heart disease.

     REVERSED AND REMANDED.




to obtain”); Quinton v. United States, 304 F.2d 234, 241 (5th Cir.
1962) (“There is no contention here that the plaintiff or his wife
knew or could have known of the alleged negligent transfusions
prior to the time that the wife became pregnant in 1959. This being
so, we hold that plaintiff's claim accrued no earlier than 1959 and
that his action was, therefore, timely.”); Pollard v. United
States, 384 F. Supp. 304, 310 (M.D. Ala. 1974) (applying Quiton to
a FTCA wrongful death action and holding that “a cause of action
under the Tort Claims Act accrues when the claimant discovers, or
in the exercise of reasonable diligence should discover, the
existence of the facts upon which the claim is based”).

                                 7
