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

                            1
No. 03-1174              Chomic v. United States, et al.       3    4    Chomic v. United States, et al.              No. 03-1174

claim for wrongful death accrues for purposes of the FTCA           [was] barred by the two-year statute of limitations in
where both an injury and its cause are known prior to death         28 U.S.C. § 2401(b).” The United States District Court for
and where state law provides a derivative, rather than an           the Western District of Michigan initially denied this motion,
independent, cause of action for wrongful death.                    but after the government moved for reconsideration, the court
                                                                    vacated its earlier “opinion and order” and granted, in part,
  The facts are not in dispute insofar as this appeal is            the government’s motion to dismiss. The court stated that it
concerned. That is, taking the facts as alleged by the plaintiff,   was granting “[t]he government’s motion to dismiss . . . to the
the government argues that the plaintiff’s suit was properly        extent the government seeks a ruling that the cause of action
dismissed because she failed to file an administrative claim        accrued on [the date of Gorjup’s injury].” The court denied
within the two-year statute of limitations period applicable to     the government’s motion to the extent it sought dismissal of
claims brought under the FTCA.                                      the plaintiff’s FTCA claim because “[t]he question of
                                                                    equitable tolling . . . raises factual issues that have not been
   On October 21, 1998, while Gorjup was a resident at the          fully presented to this Court.”
Department of Veteran Affairs Medical Center in Michigan,
he fell and suffered a hip fracture. Chomic alleges that the          The government then filed a Motion for Summary
fall was the result of the negligence and/or medical                Judgment based on 1) the plaintiff’s failure to file an
malpractice of the government’s agents. The plaintiff further       administrative claim within the statute of limitations period
alleges that the injuries arising from this fall were a proximate   and 2) the lack of a basis for equitable tolling. The district
cause of Gorjup’s death on November 23, 1998.                       court granted this motion on December 31, 2002, and
                                                                    dismissed Chomic’s claim in its entirety. Chomic appealed.
  The district court pointed out that “Mr. Gorjup had been
declared legally incapacitated by reason of mental illness                                        II.
prior to his fall on October 21, 1998.” Chomic was appointed
as Gorjup’s full guardian on May 8, 1997, and on May 11,              We review de novo a district court’s grant of a motion to
1999, Gorjup having died, Chomic was appointed as the               dismiss under Fed. R. Civ. P. 12(b)(6). Montgomery v.
Personal Representative of Gorjup’s estate.                         Huntington Bank, 346 F.3d 693, 697-98 (6th Cir. 2003).
                                                                    Likewise, we review de novo a district court’s decision to
  The district court noted that Chomic “made a formal               grant summary judgment based on a purely legal question.
administrative claim against the United States on behalf of         Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th
[Gorjup] on November 17, 2000. The claim was filed within           Cir. 2002).
two years of Mr. Gorjup’s death, but not within two years of
the injuries he suffered on October 21, 1998.” The                                                III.
Department of Veterans Affairs denied the claim. On
February 19, 2002, Chomic filed suit against the United                                           A.
States under the FTCA, seeking damages under Michigan’s
Wrongful Death Act.                                                   Chomic argues that the district court erroneously concluded
                                                                    that the plaintiff’s cause of action accrued on the date of
  The government filed a motion to dismiss pursuant to Fed.         Gorjup’s injury, rather than on the date of his death. She
R. Civ. P. 12(b)(1) and/or (6) “on the grounds that this action     relies on this court’s holding in Kington v. United States, 396
No. 03-1174              Chomic v. United States, et al.         5   6      Chomic v. United States, et al.             No. 03-1174

F.2d 9 (6th Cir. 1968), to argue that “under the FTCA, ‘the          United States v. Kubrick, 444 U.S. 111, 117-18 (1979)
claim for wrongful death accrues upon the date of death.’”           (internal citations omitted). The Supreme Court noted,
Chomic asks this court to disregard the nature of a state’s          however, that legislative history is silent as to “when a tort
cause of action for wrongful death and hold unequivocally            claim ‘accrues’ within the meaning of 28 U.S.C. § 2401(b).”
“that the date of accrual for wrongful death actions brought         Id. at 119 n.6.
under the FTCA is the date of death.” We decline to do so.
                                                                        In actions based on negligence or medical malpractice, the
   The FTCA grants a limited waiver of sovereign immunity            Supreme Court has held that federal law controls as to when
and allows tort claims against the United States “in the same        a claim accrues under the FTCA. Id. at 123. In Kubrick, the
manner and to the same extent as a private individual under          issue before the Supreme Court was “whether [a tort claim
like circumstances.” 28 U.S.C. § 2674 (1994). In other               against the United States] ‘accrues’ within the meaning of the
words, “[t]he Act waives sovereign immunity to the extent            [FTCA] when the plaintiff knows both the existence and the
that state-law would impose liability on a private individual        cause of his injury or at a later time when he also knows that
in similar circumstances.” Young v. United States, 71 F.3d           the acts inflicting the injury may constitute medical
1238, 1241 (6th Cir. 1995) (internal quotation marks and             malpractice.” Id. at 113. The plaintiff in that case filed suit
citation omitted). Nevertheless, the FTCA provides, in               under the FTCA “alleging that he had been injured by
pertinent part:                                                      negligent treatment in [a] VA hospital.” Id. at 115. The
                                                                     dispute in that case was whether, for purposes of the FTCA,
  A tort claim against the United States shall be forever            Kubrick’s claim accrued in 1969 when he “was aware of his
  barred unless it is presented in writing to the appropriate        injury and its probable cause,” or in 1971, when he learned
  Federal agency within two years after such claim accrues           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
28 U.S.C. § 2401(b) (emphasis added).                                § 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
  The Supreme Court explained that this limiting provision           knows that the acts inflicting the injury may constitute
                                                                     negligence or medical malpractice. Id. at 121-23. The Court
  is the balance struck by Congress in the context of tort           reasoned:
  claims against the Government; and we are not free to
  construe it so as to defeat its obvious purpose, which is              A plaintiff . . . armed with the facts about the harm done
  to encourage the prompt presentation of claims. . . .                  to him, can protect himself by seeking advice in the
                                                                         medical and legal community. To excuse him from
    We should also have in mind that the Act waives the                  promptly doing so by postponing the accrual of his claim
  immunity of the United States and that in construing the               would undermine the purpose of the limitations statute,
  statute of limitations, which is a condition of that waiver,           which is to require the reasonably diligent presentation of
  we should not take it upon ourselves to extend the waiver              tort claims against the Government.
  beyond that which Congress intended. . . . Neither,
  however, should we assume the authority to narrow the              Id. at 123.
  waiver that Congress intended.
No. 03-1174              Chomic v. United States, et al.     7    8    Chomic v. United States, et al.              No. 03-1174

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

121-23. Thus, as Michigan law does not create an                    and failed to explain why Kubrick was inapplicable to that
independent cause of action for wrongful death, and as the          medical malpractice claim. Furthermore, Johnston failed to
record in this case is clear that on October 21, 1998, both the     explain why, when a cause of action for medical malpractice
existence of Gorjup’s injury and its alleged cause were             accrues when a plaintiff knows of both the existence and the
known, we apply Kubrick to hold that the plaintiff’s cause of       cause of his injury, the clock should be set to zero on the
action accrued on the date of injury and not at the later date of   same claim if, later on, the injured person dies. The Fifth
death.                                                              Circuit offered no justification for its departure from Kubrick.
   In so holding, we disagree with the approach taken by our          Johnston is also unpersuasive because it ignored the fact
sister circuit in Johnston, 85 F.3d 217. In that case, the Fifth    that state law did not create an independent cause of action for
Circuit addressed a nearly identical question and held, “as a       wrongful death. The court stated: “Implicit in a wrongful
matter of federal law, that a wrongful death claim cannot           death action is a wrongful death. It is the most basic fact of
accrue prior to death” if the decedent had an available cause       which a wrongful death plaintiff must be aware. Quite simply,
of action at the time of his death. Id. at 224. The wrongful        until there is a death, regardless of its underlying cause, there
death statute in that case created a derivative, not an             can be no wrongful death action.” Johnston, 85 F.3d at 224.
independent, cause of action. Id. at 219. The Fifth Circuit         This quote reveals the Johnston court’s failure to comprehend
rejected the government’s argument that the court should            the difference between an independent cause of action for
consider the nature of the plaintiff’s cause of action under        wrongful death and a state statute merely providing that death
state law in determining the accrual date under the FTCA,           does not extinguish a preexisting cause of action. As liability
stating that “[s]uch a rule would ignore the clear                  under the FTCA depends on the existence of a cause of action
congressional expression that every plaintiff have two full         under state law, it is important to correctly discern the nature
years to prosecute an FTCA claim, undermine uniformity in           of the cause of action created by state law. Johnston fails
accrual dates, and serve as an affront to the equitable remedial    adequately to do so.
purpose of the FTCA.” Id. at 224.
                                                                       Furthermore, the equitable considerations cited by the Fifth
   We disagree with the Fifth Circuit’s conclusion because we       Circuit in Johnston are unpersuasive. The court stated that it
think that its reasoning is flawed. Johnston ignores the            was “reticent” to require “plaintiffs to speculate in a macabre
fundamental principle that state law identifies whether a           fashion as to the fate of their loved-ones and file premature
plaintiff has a cause of action and determines what that cause      suits for wrongful death based upon this speculation.” Id.
of action is; in so doing, it fails to properly apply the Supreme   The rule we adopt today does not require the speculation the
Court’s teaching in Kubrick. In Johnston, just as in this case,     Fifth Circuit fears; rather, it merely provides that in states
state law provided merely that death did not extinguish an          with no independent cause of action for wrongful death, once
otherwise valid cause of action. It did not provide for an          a person knows of an injury and its cause, he has two years to
independent cause of action for survivors. Rather, as the           file a claim based on negligence or medical malpractice. An
court noted, Johnston’s “claim [wa]s premised on allegations        intervening death does not alter this rule, and we find nothing
of medical malpractice.” Johnston, 85 F.3d at 222. Thus,            inequitable in this straightforward application of Kubrick.
Supreme Court precedent had already settled when such a             Furthermore, this rule is in keeping with the purpose of
claim accrues as a matter of federal law. Kubrick, 444 U.S.         § 2401(b), which, as explained by the Supreme Court, “is to
at 121-23. Nevertheless, Johnston failed to apply Kubrick
No. 03-1174               Chomic v. United States, et al.      11    12   Chomic v. United States, et al.              No. 03-1174

require the reasonably diligent presentation of tort claims          statute was “not to compensate for the injury to the decedent,
against the Government.” Kubrick, 444 U.S. at 123.                   but rather to create a cause of action to provide a means by
                                                                     which the decedent’s survivors may be compensated for the
   Finally, the Fifth Circuit’s claim that “every circuit that has   loss they have sustained by reason of the death.” Id. The
addressed the accrual of wrongful death claims has reached           court analyzed Indiana’s wrongful death statute and
the same conclusion: A wrongful death claim cannot accrue            concluded that it “creates a new and independent cause of
before death for FTCA purposes,” is inaccurate. Johnston, 85         action for wrongful death under state law,” rather than a
F.3d at 222. With the exception of Johnston, circuit courts          derivative cause of action. Id. Thus, the court held “that
either have not encountered the issue, have reached contrary         when a state statute creates an independent cause of action for
decisions, or base their decisions on the fact that state law        wrongful death, it cannot accrue for FTCA purposes until the
creates an independent cause of action for wrongful death.           date of the death which gives rise to the action.” Id. at 171.
  Most of the courts of appeal that have considered accrual            The Fisk court rejected the government’s argument that the
questions under the FTCA have applied Kubrick’s discovery            rule from Kubrick should apply to bar the claim because the
rule to extend the period in which a plaintiff may file suit to      decedent knew of the existence of an injury and its cause
some point after death when the cause of death is known.             more than two years before the plaintiff filed her claim. Id. at
See, e.g., Skwira v. United States, 344 F.3d 64, 75 (1st Cir.        171-72. The court pointed out that under state law, the
2003), cert. denied, ___ S. Ct. ___, 2004 WL 297024 (U.S.            wrongful acts of the government’s agent
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              gave rise to two separate claims: a personal injury claim
1337, 1340 (11th Cir. 1999); In Re Swine Flu Prods. Liab.              of the decedent, to which the Government was exposed
Litig., 764 F.2d 637, 639 (9th Cir. 1985); Drazan v. United            for two years after it accrued, as per the Kubrick rule; and
States, 762 F.2d 56, 59 (7th Cir. 1985). These courts simply           a wrongful death claim of the decedent’s survivors, to
have not considered whether a cause of action for wrongful             which the Government was exposed for two years after
death can accrue before death for FTCA purposes.                       it accrued.
   Although Johnston purports to rely on the Seventh Circuit’s       Id. at 172. Today, we follow the Seventh Circuit’s lead in
decision in Fisk, 657 F.2d at 170, that case supports the            Fisk and look to the nature of a state’s wrongful death statute
holding we reach today. In Fisk, the question was “whether           in determining when a cause of action thereunder accrues for
a wrongful death claim brought pursuant to the [FTCA] is             purposes of the FTCA.
barred by the two-year statute of limitations . . . when more
than two years have elapsed since the accrual of a personal            Our holding is also supported by the Fourth Circuit’s
injury claim for the wrongful act which caused the death, but        holding in Miller, 932 F.2d 301. In Miller, the Fourth Circuit
less than two years have elapsed since the date of death.” Id.       applied Kubrick’s discovery rule to a wrongful death action
at 168. Although the court stated that “[i]t is well settled that    brought under the FTCA. The plaintiff claimed “medical
federal law . . . controls when a claim [under the FTCA]             malpractice by government doctors as the cause of [the
accrues for statute of limitation purposes,” it looked to state      decedent’s] death.” Id. at 302. The court acknowledged that
law to determine the nature of the cause of action. Id. at 170.      federal law “defines the limitations period and the time of the
The court noted that the purpose of Indiana’s wrongful death
No. 03-1174              Chomic v. United States, et al.     13    14    Chomic v. United States, et al.              No. 03-1174

claim’s accrual,” but looked to Virginia law for the               Id. (emphasis in original).
underlying cause of action. Id. The court noted:
                                                                      The Fourth Circuit declined to resurrect a cause of action
    Virginia’s wrongful death statute does not create a new        for medical malpractice that expired a day before the
  cause of action, but only a right of action in a personal        decedent’s death merely because the decedent had died. This
  representative to enforce the decedent’s claim for any           holding is inconsistent with the rationale of Johnston, which
  personal injury that caused death. . . . For this reason, a      held that regardless of whether state law creates an
  wrongful death action under Virginia law is necessarily          independent cause of action for wrongful death, “until there
  time-barred if at the time of the decedent’s death her           is a death, regardless of its underlying cause, there can be no
  personal injury claim based on the tortious conduct that         wrongful death action.” Johnston, 85 F.3d at 224. Although
  ultimately caused death is already time-barred.                  Johnston declined to state whether its holding would be the
                                                                   same if the decedent’s underlying claim had expired prior to
Id. at 303 (internal citations and footnote omitted).              his death, the court’s logic is inconsistent with that of the
                                                                   Fourth Circuit, and its claim of circuit uniformity is
  The court applied the rule from Kubrick and held that the        unfounded. Thus, we decline to adopt the Fifth Circuit’s
plaintiff’s claim under the FTCA was “barred by [the               approach and instead follow the lead of the Fourth and
decedent’s] discovery two years and a day before her death of      Seventh Circuits.
the condition that finally caused her death, and of the cause of
the condition.” Id. at 304. The court rejected the plaintiff’s                                    B.
argument that the decedent’s claim could not have accrued on
the date of discovery because the decedent “did not then             Chomic also argues that the district court erroneously
realize that the failure to make early diagnosis was going to      dismissed her FTCA claim on statute of limitations grounds
cause her death.” Id. The court explained:                         when the statute of limitations should have been tolled. This
                                                                   argument is without merit.
  Under Kubrick, a medical malpractice claim such as that
  here in issue accrues when a claimant first knows of an            First, Chomic argues that Gorjup’s incompetency should
  injury and its cause, and not only later when it is first        have tolled the statute of limitations. It is undisputed that the
  realized that a particular legal claim may be maintainable       government’s alleged misconduct did not cause the
  in consequence of the injury. The question under                 decedent’s incompetency, and courts have uniformly held that
  Kubrick and Virginia wrongful death law in combination           mental incompetency, standing alone, will not toll the running
  is not, therefore, whether at the critical time [the             of the statute of limitations under the FTCA. See e.g., Barren
  decedent] knew that she had a personal injury that would         by Barren v. United States, 839 F.2d 987, 992 (3d Cir. 1988);
  eventually cause her death, but only whether she then            Zeidler v. United States, 601 F.2d 527, 529 (10th Cir. 1979)
  knew that she had an injury and, as is now alleged, an           (citing Casias v. United States, 532 F.2d 1339, 1342 (10th
  injury caused by the failure of [the government doctor] to       Cir. 1976)); Williams v. United States, 228 F.2d 129 (4th Cir.
  have diagnosed her condition in time to prevent or               1955), cited in Jackson v. United States, 234 F. Supp. 586,
  minimize the injury that she indisputably then knew to           587 (E.D.S.C. 1964). Furthermore, the language of § 2401(b)
  exist.                                                           contains no saving clauses for disabilities of any kind.
                                                                   Rather, as the Supreme Court stated in Kubrick, the section is
No. 03-1174              Chomic v. United States, et al.     15    16   Chomic v. United States, et al.              No. 03-1174

a condition of the United States’s waiver of sovereign             would entitle her to equitable tolling and has failed to show
immunity which is to be narrowly construed. 444 U.S. at            that any of the factors this court identified in Andrews v. Orr,
117-18. Courts are not at liberty to “take it upon [them]selves    851 F.2d 146 (6th Cir. 1988), weigh in her favor. Instead, the
to extend the waiver beyond that which Congress intended.”         record is clear that Chomic had seventeen months as Personal
Id. at 118.                                                        Representative in which she could have investigated and filed
                                                                   a timely claim. We have stated that a “lack of diligence by a
  Second, Chomic argues that she should have been able to          claimant acts to defeat his claim for equitable tolling.”
take advantage of Michigan law to toll the statute of              Cantrell v. Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1180
limitations. The district court rejected this argument, stating:   (6th Cir. 1995). This assignment of error lacks merit.
“Plaintiff cannot take advantage of Michigan’s statute of
limitations or tolling provisions for survival-type actions                                      IV.
brought under the Wrongful Death Act.” The Supreme Court
                                                                     In conclusion, we hold that where state law provides a
  has recognized the general principle that the United             derivative, rather than an independent, cause of action for
  States, as sovereign, is immune from suit save as it             wrongful death, and where the underlying cause of action
  consents to be sued . . . and the terms of its consent to be     sounds in negligence or medical malpractice, a claim for
  sued in any court define that court’s jurisdiction to            wrongful death under the FTCA accrues on the date when
  entertain the suit. . . . Like a waiver of immunity itself,      both an injury and its cause are known. Accordingly, the
  . . . [the] Court has long decided that limitations and          judgment of the district court is AFFIRMED.
  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
