UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRACE R. WEISSMANN; DANIEL
WEISSMANN,
Plaintiffs-Appellants,
                                                                     No. 98-1157
v.

UNITED STATES POSTAL SERVICE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-97-2246-Y)

Submitted: June 23, 1998

Decided: July 29, 1998

Before MURNAGHAN, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Leonard J. Sperling, Samuel Sperling, LAW OFFICES OF SPER-
LING & FRAMM, Baltimore, Maryland, for Appellants. Lynne A.
Battaglia, United States Attorney, Earle Bronson Wilson, Assistant
United States Attorney, Baltimore, Maryland; R. Andrew German,
Managing Counsel, Geraldine O. Rowe, UNITED STATES POSTAL
SERVICE, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Grace and Daniel Weissmann bring this appeal from an
order of the district court dismissing their claim against the United
States under the Federal Tort Claims Act ("FTCA") on the ground
that the statute of limitations bars this action. We affirm.

On January 25, 1994, Grace Weissmann slipped and fell during the
course of her employment in front of the Arlington Station Post
Office in Baltimore, Maryland. Ms. Weissmann filed for disability
benefits under the Maryland Workers' Compensation law. On May 1,
1996, the Maryland Workers' Compensation Commission awarded
Ms. Weissmann temporary disability benefits. On March 24, 1997,
Ms. Weissmann and her husband, Daniel Weissmann, submitted an
administrative claim to the United States Postal Service in accordance
with the FTCA. The Postal Service declined to consider the claim
because the Weissmanns filed the claim more than three years after
Ms. Weissmann's alleged accident.

On July 14, 1997, the Weissmanns filed a complaint in the United
States District Court for the District of Maryland seeking damages
based on Ms. Weissmann's 1994 accident at the Arlington Station
Post Office. The United States moved to dismiss the complaint based
on the Weissmanns' failure to file an administrative claim with the
United States Postal Service within two years of the date of the
alleged accident as required under the FTCA, 28 U.S.C. § 2401(b)
(1994). The Weissmanns alleged that Ms. Weissmann's claim with
the Maryland agency for workers' compensation benefits tolled the
federal statute of limitations. The district court found that the Weiss-
manns' failure to comply with the two year limitations period pre-
scribed in § 2401(b) deprived it of subject-matter jurisdiction over the
claim. This appeal followed.

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A district court's decision regarding the applicability of a particular
statute of limitations is reviewed de novo. United States v. Manning,
56 F.3d 1188, 1195 (9th Cir. 1995). The FTCA provides for a limited
waiver of the sovereign immunity of the United States for the torts of
government employees committed within the scope of their employ-
ment. See Honda v. Clark, 386 U.S. 484, 501 (1967). A condition of
that waiver, however, is compliance with the FTCA's statute of limi-
tations. Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993). Under
the FTCA, "[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) (1994); see Gould v. United States Dep't of Health &
Human Servs., 905 F.2d 738, 741 (4th Cir. 1990) (in banc). The two-
year limitations period is jurisdictional and may not be waived.
Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (citing
Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986)).
Although liability under the FTCA is determined in accordance with
state law, see 28 U.S.C.A. § 1346(b) (West 1993 & Supp. 1998), fed-
eral law determines when a cause of action accrues. See Miller v.
United States, 932 F.2d 301, 303 (4th Cir. 1991); Gould, 905 F.2d at
742. For purposes of section 2401(b), a cause of action accrues when
a plaintiff knows or, in the exercise of due diligence, should know of
both the existence and cause of his injury. See id. (citing United States
v. Kubrick, 444 U.S. 111, 120 (1979)).

The Weissmanns do not dispute that they knew of the existence
and cause of Ms. Weissmann's alleged injury on January 25, 1994,
and that they failed to bring an action under the FTCA within two
years of that date. The Weissmanns claim, however, that because Ms.
Weissmann's claim for disability benefits under the Maryland Work-
ers' Compensation law was not resolved until May 1, 1996, Maryland
law precluded them from bringing suit against the United States until
July 1, 1996--two months after the Maryland Workers' Compensa-
tion Commission issued its first order. Hence, the Weissmanns assert
that their cause of action accrued on July 1, 1996, because that was
the first day they had the substantive right to submit a claim against
the United States under the FTCA.

The Weissmanns' claim is misplaced for two reasons. First, their
argument ignores that federal and not state law determines when a

                    3
cause of action accrues for an FTCA claim. Federal courts have con-
sistently held that state workers' compensation laws do not serve to
toll or delay the accrual date of an FTCA claim. See Vega-Velez v.
United States, 800 F.2d 288, 290 (1st Cir. 1986); Mendiola v. United
States, 401 F.2d 695, 697 (5th Cir. 1968); see also Poindexter v.
United States, 647 F.2d 34, 36 (9th Cir. 1981). Second, Ms. Weiss-
mann has no inherent right to seek compensation for her alleged inju-
ries under both the Maryland workers' compensation system and the
FTCA. See United States v. Demko, 385 U.S. 149, 151 (1966) (work-
ers' compensation laws are "practically always thought of as substi-
tutes for, not supplements to, common-law tort actions"); Vega-Velez,
800 F.2d at 289 (recognizing that under the Puerto Rico Workers'
compensation statute an injured employee could be forced to sue a
third party directly in lieu of seeking workers' compensation bene-
fits). The Maryland Court of Special Appeals recently recognized that
under Maryland law a party seeking compensation from a third-party
tortfeasor for an injury sustained on the job may be precluded from
bringing a workers' compensation claim. See Central GMC, Inc. v.
Lagana, 706 A.2d 639, 641-44 (Md. Ct. Spec. App. 1998).

Accordingly, the Weissmanns' failure to file their complaint
against the United States within two years of the date Ms. Weissmann
sustained her alleged injuries deprived the district court of jurisdiction
over this action. See Ahmed, 30 F.3d at 516. We therefore affirm the
district court's order dismissing the Weissmanns' claim for want of
jurisdiction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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