377 F.3d 607 | 6th Cir. | 2004
RECOMMENDED FOR FULL-TEXT PUBLICATION
2 Chomic v. United States, et al. No. 03-1174 Pursuant to Sixth Circuit Rule 206 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, MUELLER & JAMES, Berkley, Michigan, for Appellant.
J ENNIE E. C HOMIC , Personal (cid:88) Ronald M. Stella, UNITED STATES ATTORNEY, Grand (cid:45) Representative of the Estate Rapids, Michigan, for Appellees. (cid:45) of James J. Gorjup, Deceased, (cid:45) No. 03-1174 Plaintiff-Appellant, _________________ (cid:45) > (cid:44)
OPINION v. (cid:45) _________________ (cid:45) U NITED S TATES OF A MERICA ; (cid:45) RYAN, Circuit Judge. Jennie E. Chomic, the Personal (cid:45) U NITED S TATES D EPARTMENT Representative of the Estate of James Gorjup, brought suit (cid:45) against the United States under the Federal Tort Claims Act OF V ETERANS A FFAIRS , (cid:45) (FTCA), based on the events leading up to Gorjup’s death. Defendants-Appellees. (cid:45) Although Chomic named the Department of Veterans Affairs (cid:78)
as a defendant, a federal agency cannot be sued under the FTCA. Chomic’s exclusive remedy is an action against the
Appeal from the United States District Court United States. See 28 U.S.C. § 2679(a) and (b)(1). for the Western District of Michigan at Grand Rapids. No. 02-00112—Robert Holmes Bell, Chief District Judge. Chomic appeals from two orders the district court entered, which disposed of all of her claims. The first granted the Argued: April 20, 2004 defendants’ Motion for Reconsideration and granted, in part, the defendants’ Motion to Dismiss. The second granted the
Decided and Filed: July 28, 2004 defendants’ Motion for Summary Judgment and dismissed the plaintiff’s claim in its entirety. At issue in this appeal is
Before: RYAN, DAUGHTREY, and CLAY, Circuit whether the statute of limitations found in the FTCA bars the Judges. 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 A. February 19, 2002, Chomic filed suit against the United States under the FTCA, seeking damages under Michigan’s
Chomic argues that the district court erroneously concluded Wrongful Death Act. that the plaintiff’s cause of action accrued on the date of Gorjup’s injury, rather than on the date of his death. She The government filed a motion to dismiss pursuant to Fed. relies on this court’s holding in Kington v. United States , 396 R. Civ. P. 12(b)(1) and/or (6) “on the grounds that this action 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 Thus, we must look to Michigan law to determine the question.
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 Our holding is also supported by the Fourth Circuit’s than two years have elapsed since the accrual of a personal holding in Miller , 932 F.2d 301. In Miller , the Fourth Circuit injury claim for the wrongful act which caused the death, but applied Kubrick ’s discovery rule to a wrongful death action less than two years have elapsed since the date of death.” Id. brought under the FTCA. The plaintiff claimed “medical at 168. Although the court stated that “[i]t is well settled that malpractice by government doctors as the cause of [the federal law . . . controls when a claim [under the FTCA]
decedent’s] death.” Id. at 302. The court acknowledged that accrues for statute of limitation purposes,” it looked to state federal law “defines the limitations period and the time of the law to determine the nature of the cause of action. Id. at 170. 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