McIntyre v. United States , 367 F.3d 38 ( 2004 )

United States Court of Appeals
For the First Circuit
No. 03-1823
EMILY MCINTYRE, as Administrator of the Estate of John L.
McIntyre; CHRISTOPHER MCINTYRE, as Co-administrator of the Estate
of John L. McIntyre,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee,
H. PAUL RICO; JOHN MORRIS; JOHN J. CONNOLLY; RODERICK KENNEDY;
ROBERT FITZPATRICK; JAMES RING; JAMES GREENLEAF; JAMES AHEARN;
KEVIN J. WEEKS; JAMES J. BULGER; STEPHEN FLEMMI;
JOHN DOES, Nos. 1-50,
Defendants.
No. 03-1791
LAWRENCE A. WHEELER, Individually and as Special Administrator of
the Estate of Roger M. Wheeler; PATRICIA J. WHEELER, Individually
and as Special Administratrix of the Estate of Roger M. Wheeler;
PAMELA (WHEELER) NORBERG; DAVID B. WHEELER; MARK K. WHEELER,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee,
JOHN J. CONNOLLY, JR.; JOHN M. MORRIS; H. PAUL RICO;
ROBERT FITZPATRICK; JAMES A. RING; JAMES GREENLEAF;
JAMES AHEARN; JAMES J. BULGER, a/k/a Whitey;
STEPHEN J. FLEMMI, a/k/a The Rifleman; JOHN V. MARTORANO;
JOHN DOES, Nos. 1-50,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald G. Lindsay, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
William E. Christie, with whom Steven M. Gordon and Shaheen &
Gordon, P.A. were on brief, for appellants Emily McIntyre and
Christopher McIntyre.
Richard A. Olderman, Attorney, Appellate Staff, with whom
Robert S. Greenspan, Attorney, Appellate Staff, Peter D. Keisler,
Assistant Attorney General, and Michael J. Sullivan, United States
Attorney, were on brief, for appellee United States in the McIntyre
case.
Frank A. Libby, Jr., with whom Douglas S. Brooks and Kelly,
Libby & Hoopes, P.C. were on brief, for appellants Lawrence A.
Wheeler, Patricia J. Wheeler, Pamela (Wheeler) Norberg, David B.
Wheeler, and Mark K. Wheeler.
Richard A. Olderman, Attorney, Appellate Staff, with whom
Robert S. Greenspan, Attorney, Appellate Staff, Peter D. Keisler,
Assistant Attorney General, Michael J. Sullivan, United States
Attorney, and Jeffrey S. Bucholtz, Deputy Assistant Attorney
General, were on brief, for appellee United States in the Wheeler
case.
May 10, 2004
LYNCH, Circuit Judge. These two cases involve claims
against the United States under the Federal Tort Claims Act (FTCA),
28 U.S.C. § 2671 et seq., arising out of alleged wrongful actions
of FBI agents.
On September 15, 1999, a diligent federal trial judge
sitting in an organized crime case issued a lengthy opinion
outlining a possible pattern of corruption involving at least two
FBI agents, John Connolly and his supervisor John Morris, and two
notorious Boston criminals, James "Whitey" Bulger and Stephen "the
Rifleman" Flemmi. See United States v. Salemme, 91 F. Supp. 2d 141(D. Mass. 1999). Such corruption had been rumored but had been
denied by the FBI.
The 1999 opinion by Judge Wolf revealed that Bulger and
Flemmi, who were leaders of the Winter Hill Gang, a crime syndicate
involved in murder, bribery, extortion, loansharking, and gambling
operations, had been high-level FBI informants since the 1970s,
aiding the agency in its investigation of La Cosa Nostra, a rival
crime syndicate. The opinion raised the prospect that Bulger and
Flemmi had received numerous benefits from the FBI in return,
including protection from prosecution, and at times, access to the
names of informants who were themselves providing information to
the FBI about the criminal activities of Bulger and Flemmi. Id. at
148-63, 322. Some of the informants may have been killed as a
-2-
result, and the murderous activities of Bulger and Flemmi covered
up. Id. at 208-13.
The opinion speculated that Agent Connolly may have
disclosed to Bulger and Flemmi the identity of an individual, John
McIntyre, who was an informant for the local Quincy police and was
debriefed by the FBI, United States Customs Service, and the Drug
Enforcement Administration (DEA). Id. at 213-15. McIntyre
disappeared roughly six weeks after an October 17, 1984 interview
with FBI Agent Roderick Kennedy, in which McIntyre had linked
Bulger to gun-running and drug-smuggling operations. Id. His body
was found fifteen years later, on January 14, 2000, in a makeshift
grave near Boston. But the opinion, published in September 1999,
ultimately concluded that it could not be determined whether FBI
Agent Kennedy had, in fact, shared this information about McIntyre
with Connolly and whether Connolly, in turn, had told Bulger. Id.
at 214-15. That was because, as the court said later, "important
FBI documents concerning John McIntyre were . . . improperly
withheld by agents of the Boston FBI until it was too late to
question relevant witnesses concerning them." United States v.
Flemmi, 195 F. Supp. 2d 243, 249-50 (D. Mass. 2001).
The opinion also indicated the likelihood that Agent
Connolly had disclosed to Bulger the name of another informant as
to Bulger's crimes, Brian Halloran. In January 1982, Halloran told
two FBI agents that Bulger and Flemmi had caused the 1981 murder of
-3-
a Tulsa businessman, Roger Wheeler. Connolly learned of Halloran's
cooperation and disclosed it to Bulger. Halloran was murdered in
May 1982. Salemme, 91 F. Supp. 2d at 208-210. Agent Morris
testified to this sequence of events in hearings before Judge Wolf
in April 1998.
Agent Connolly was indicted on October 11, 2000 and
charged with numerous crimes, including "alert[ing] Bulger and
Flemmi to the identity of confidential law enforcement informants
in order to protect Bulger's and Flemmi's ongoing criminal
activities" and taking other steps to protect Bulger and Flemmi.
Connolly was charged with inducing Agent Morris to do the same, in
violation of Morris's legal obligations. Among the several
racketeering acts charged was that Connolly had told Bulger and
Flemmi of Halloran's statements that Bulger and Flemmi had caused
Wheeler's murder. In turn, the indictment charged, Bulger caused
Halloran to be murdered. Connolly was convicted, and his
conviction was affirmed on appeal. United States v. Connolly, 341
F.3d 16 (1st Cir. 2003).
On May 25, 2000, the estate of John McIntyre, through its
administrator (McIntyre's mother, Emily McIntyre) and co-
administrator (McIntyre's brother, Christopher McIntyre), filed an
administrative claim against the United States under the FTCA.1
The essence of the theory behind the claim was that the FBI had (i)
1
We refer to the plaintiff in this case as McIntyre.
-4-
directly caused the death of John McIntyre, when Agent Connolly
informed Bulger and Flemmi that McIntyre was cooperating with
certain authorities investigating Bulger and Flemmi, thus signing
McIntyre's death warrant, and (ii) indirectly caused McIntyre's
death through the protection the FBI afforded Bulger and Flemmi,
which encouraged and enabled them to commit murders, including that
of McIntyre.2 A second administrative complaint was filed on June
8, 2000.
On May 11, 2001, the estate of Roger Wheeler, the
murdered Tulsa businessman, filed an administrative claim under the
FTCA against the United States. The theory of the claim was that
the FBI's illicit protection of Bulger and Flemmi had facilitated
the murder of Roger Wheeler.3 This legal theory differed from that
articulated in the McIntyre case, as there was no direct
relationship between the FBI and Wheeler.
2
Specifically, the estate asserted legal theories of (a)
conspiracy to protect Bulger and Flemmi from arrest and prosecution
as a proximate cause of McIntyre's kidnaping, torture and execution
in violation of McIntyre's First, Fourth, and Fifth Amendment
rights; (b) violation of those same Fourth and Fifth Amendment
rights, stated as claims under Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971); and (c) wrongful death, in violation of Mass.
Gen. Laws ch. 229, §§ 2, 6.
3
Both the Wheeler and McIntyre administrative claims also
included claims that FBI agents had obstructed and impeded the
investigation of the respective murders. But in their suits in
federal court, both sets of plaintiffs raised cover-up claims only
against individual FBI agents, not against the United States
itself.
-5-
The United States failed to act on either claim within
the required six-month period, thus giving both estates the option,
which they took, of treating those claims as having been denied.
See 28 U.S.C. § 2675(a). In due course, both filed suit against
the United States as well as various FBI agents in the Boston
office, Bulger, Flemmi, and other members of the Winter Hill Gang.
McIntyre's claims against the United States consisted of
(1) three counts under Mass. Gen. Laws ch. 229, § 2 for civil
conspiracy, negligence, and supervisory liability, causing
McIntyre's death and (2) three counts under Mass. Gen. Laws ch.
229, § 6, corresponding to the three counts under § 2, for
negligently causing McIntyre's conscious suffering while he was
kidnapped, tortured and killed.
The claims of the Wheeler estate were joined by Roger
Wheeler's widow and four of his five children, suing individually.4
The Wheelers' claims against the United States sought to hold it
directly and vicariously liable for (1) two counts of tortious
conduct causing Wheeler's death under Mass. Gen. Laws ch. 229, § 2;
(2) two counts of causing Roger Wheeler's conscious suffering the
moments immediately before his murder under Mass. Gen. Laws ch.
229, § 6; and (3) one count of causing emotional distress to
Wheeler and his family.
4
We refer to the estate and individual plaintiffs in this
case as the Wheelers.
-6-
The United States moved to dismiss in both suits on the
ground that neither set of plaintiffs filed their administrative
claims within the required two-year period from the accrual of the
cause of action. See 28 U.S.C. § 2401(b). The district court
agreed in both cases. McIntyre v. United States, 254 F. Supp. 2d
183, 193 (D. Mass. 2003); Wheeler v. United States, No. 02-10464-
RCL (D. Mass. March 31, 2003). This consolidated appeal is from
the dismissals of the FTCA claims against the United States and
reviews the single issue, on two sets of facts, of when the claims
"accrued" for FTCA purposes. To be timely, the McIntyre claims had
to accrue on or after May 25, 1998, and the Wheeler claims on or
after May 11, 1999.
I.
The following facts are presented in the light most
favorable to the plaintiffs. See Muniz-Rivera v. United States,
326 F.3d 8, 11 (1st Cir. 2003). The facts are drawn from the two
complaints and the materials submitted to the district court on the
respective motions to dismiss. Gonzalez v. United States, 284 F.3d
281, 288 (1st Cir. 2002) (on a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1), the court may look to supplemental materials
in addition to pleadings). We also draw on facts found in United
States v. Salemme, supra.-7-
A. Factual and Procedural Background Relevant to McIntyre
In mid-October 1984, John McIntyre began cooperating with
Richard Bergeron of the Quincy Police Department. Salemme, 91 F.
Supp. 2d at 213. McIntyre told Bergeron that he was an engineer on
a ship named the Valhalla that had been used in an unsuccessful
attempt to deliver guns and ammunition from Massachusetts to the
Irish Republican Army (IRA) in Ireland. He said that he worked for
Joseph Murray, who secretly owned the Valhalla and was closely
connected to Bulger, and that Bulger was involved in the attempted
arms shipment through his associates Kevin Weeks and Patrick Nee.
McIntyre also mentioned Flemmi. Id. Bergeron told Agent Roderick
Kennedy, an FBI liaison officer, that McIntyre was cooperating and
that McIntyre had linked Bulger and his associates to the Valhalla.
Bergeron arranged for agents from the DEA and United States Customs
Service, along with Agent Kennedy, to participate in McIntyre's
debriefing. Kennedy and a Customs agent interviewed McIntyre on
October 17, 1984. McIntyre told them that Bulger's associate
Patrick Nee had traveled to Ireland to meet the Valhalla. Id. at
214. McIntyre also told them that Murray was partners in a
separate drug smuggling operation with "an individual named Whitey
who operates a liquor store in South Boston," whom Kennedy
understood to be Bulger. Id. Around November 30, 1984, McIntyre
disappeared.
-8-
Christopher McIntyre, John's brother, stated by affidavit
that he and Emily McIntyre, John's mother, filed multiple missing
persons reports with the Quincy police. Christopher said that the
government told him on one occasion that the "mob" had murdered
John, but later told him that John was "alive, a fugitive from
justice and would be prosecuted if caught." Emily also stated by
affidavit that she had made "repeated requests" to the government
for information or help in finding her son but received none.
Instead, she said, government agents told her that "John was a
fugitive." In a 2000 Boston Herald interview, both Emily and
Christopher said that they had suspected Bulger's hand in John's
disappearance in 1984 but said nothing out of fear.
On April 15, 1986, although McIntyre was still missing,
a grand jury indicted him along with Murray, Nee, and four others
for their roles in the Valhalla operation and drug smuggling.
Bulger and Flemmi were not named as defendants or otherwise
mentioned in the indictment. The grand jury returned a superseding
indictment on May 8, 1986, which again did not name Bulger or
Flemmi as defendants. The court then issued a warrant for
McIntyre's arrest. On September 6, 1995, a note appeared in the
docket of the Valhalla prosecution: "Case reopened as to John
Crawley, John McIntyre, Michael Nigro. NOTE: Case previously
closed in error. Defendants Crawley, McIntyre and Nigro remain
-9-
fugitives." The case remained open until March 20, 2000, when
McIntyre's death had been confirmed.
Meanwhile, on April 16, 1986, shortly after the first
indictment, attorney John Loftus, acting on behalf of Emily, Chris,
and Patricia McIntyre, John's sister, sent a letter to the Attorney
General, United States Customs Service, DEA, State Department, and
United States Attorney for the District of Massachusetts. The FBI
was not one of the addressees on the letter. The letter, whose
subject line was "Re: Wrongful Death of John L. McIntyre," alleged
that John McIntyre was a government informant concerning IRA gun-
running in Boston, that federal authorities leaked his informant
status to the British government, and that the British government
told the IRA, resulting in McIntyre's abduction and murder.
On June 2, 1986, Emily McIntyre asked the Veterans
Administration (VA) to erect a headstone marker for her son at the
Massachusetts National Cemetery.
On September 20, 1988, the Boston Globe ran a report
describing Bulger as an FBI informant and raising the possibility
that Bulger "has been able to exploit his cachet with the FBI" to
evade investigation and apprehension by the state police and the
DEA. The article suggested that the FBI may have tipped Bulger off
to recording devices in his home and car and to the timing of sting
operations. But it did not raise the possibility that the FBI
leaked information to Bulger about informants in his own
-10-
organization or shielded him from prosecution for crimes like
murder. Nor did the article mention McIntyre. The article
reported that
State Police officials . . . asked the FBI to
conduct an internal inquiry. The FBI cleared two agents,
and the FBI leadership remains outraged at the suggestion
that any of its own would engage in that kind of
treachery.
James F. Ahearn, special agent in charge of the FBI
in Boston, was unequivocal when asked last month if
Bulger has had relations with the FBI that have left him
free of its scrutiny.
"That is absolutely untrue," said Ahearn. "We have
not had evidence that would warrant it and if we do
develop anything of an evidentiary nature, we will pursue
it. We specifically deny that there has been special
treatment of this individual." He declined to make any
further comment on the matter and instructed Connolly not
to speak on the subject.
In 1989, Emily McIntyre and Loftus published Valhalla's
Wake: The IRA, MI6, and the Assassination of a Young American
(Atlantic Monthly Press). In the book, they indicated awareness
that John had ties to the IRA and the "Mob" and that he faced
possible "Mob[] retribution" for his cooperation with the
government. They stated that John's blue pickup truck had been
spotted at Murray's place of business and that it was later found
under a bridge with his uncashed VA check inside. But they
ultimately theorized that British intelligence was responsible for
John's murder. Based on the McIntyre family's own investigation
into John's death, which involved interviews with "an IRA courier"
and a "source" within British intelligence, the book speculated
that British intelligence had its own mole in the Valhalla,
-11-
discovered from United States Customs agents that McIntyre was an
informant on a related drug-smuggling operation, falsely told the
IRA that McIntyre was an informant on the Valhalla operation to
divert attention from the British mole, and then murdered McIntyre
to prevent him from refuting the story.
In October 1991, Emily McIntyre applied to the VA for
death benefits under her son's policy.
In the early to mid-1990s, the Boston Globe published a
series of articles on McIntyre's disappearance. One of those
articles, appearing on December 24, 1992, stated that Sean
O'Callaghan, a former IRA operative, had tipped off the Irish
police to the 1984 Valhalla shipment and that the IRA may have
mistakenly suspected McIntyre of being the leak and murdered him.
The story, which quoted Emily McIntyre, said that "[m]ost
authorities believe McIntyre was done in by his associates, . . .
most of whom were in the now-defunct Winter Hill Gang" headed by
Bulger. The article noted that when Bulger heard that the Valhalla
had been seized, he said, in a conversation secretly recorded by
DEA bugs in his apartment, "That's our stuff," and that McIntyre
was last seen with Patrick Nee, a Bulger associate. But the story
made no connection between the FBI and McIntyre's death. In fact,
in response to Emily McIntyre's theory that her son had been killed
by British intelligence, the article noted that "federal
investigators familiar with the Valhalla case say there is no
-12-
evidence that McIntyre was fingered by any agent of the US, Irish,
or British governments" (emphasis added).
On January 29, 1995, a second article in the Boston Globe
reported that "authorities in the United States" had called
"ludicrous" any claim that "the US government negligently allowed
[McIntyre] to be killed." The story indicated that government
officials were not the only ones who might have known that McIntyre
was an informant, stating that "[r]umors that [John] McIntyre was
talking [to the federal government] were rampant" and citing Emily
McIntyre as saying that Customs agents had "openly tailed [her
son], and were parked outside her home the last night she saw her
son."
Then, on December 11, 1996 and June 14, 1997, the Boston
Globe published two more articles reporting that law enforcement
officials believed McIntyre had been killed by the Winter Hill
Gang. The December 11 article, which quoted Emily McIntyre, stated
that "[f]ederal agents believe McIntyre was killed by Boston
gangsters who suspected him of informing against them." The June
14 article was more specific. It theorized that Bulger had
compromised the Valhalla operation, after taking a hefty profit
from it, by tipping off the Central Intelligence Agency (CIA).
Relying on witness statements and other evidence, the article
suggested that, afterwards, Bulger and Flemmi nonetheless tortured
McIntyre to find out what he had told authorities about the gun-
-13-
running and marijuana smuggling operations, and then killed him,
disposing of his body at sea. Neither article made any mention of
FBI involvement.
At around the time of the second article, in 1997, more
details of the relationship between Bulger and Flemmi and their FBI
handlers came to light through the prosecution of Flemmi in the
case of United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass.
1999). In Salemme, on January 10, 1995, a grand jury indicted
Bulger and Flemmi, along with five others who were members of
either La Cosa Nostra or the Winter Hill Gang, of RICO conspiracy
and various other federal crimes. Id. at 301. Three more
superseding indictments were obtained, with the last coming on July
2, 1996. Id. at 306. None of the indictments mentioned McIntyre's
disappearance, although several referred to murders committed by
Bulger and Flemmi.
In April 1997, in the process of addressing the
defendants' motion to suppress some electronic surveillance
evidence, Judge Wolf, who was presiding over the Salemme case,
discovered earlier filings in the case before a magistrate judge
that suggested that Bulger and Flemmi were FBI informants. Id. at
308. This information raised questions about, inter alia, whether
the FBI had given Bulger and Flemmi immunity from prosecution for
their ongoing criminal conduct.
-14-
In a June 6, 1997 order, over the FBI's objections, Judge
Wolf revealed that the FBI had, in response to a court order,
confirmed in a closed hearing that Bulger was an informant. United
States v. Salemme, 978 F. Supp. 364, 365 (D. Mass. 1997). The
order also revealed that Flemmi was an informant. Id. at 373. In
a June 25, 1997 affidavit, Flemmi stated that Agent Morris had
assured him that he and Bulger could be involved in any criminal
activities short of murder and would be protected by the FBI.
Salemme, 91 F. Supp. 2d at 310. Flemmi's affidavit was not sealed
and an account of his statements was published the next day in the
Boston Globe. Several months later, on September 3, 1997, Flemmi
submitted under seal a motion to dismiss, claiming, inter alia,
that the FBI had promised him immunity. Id. at 311. The motion
was unsealed, over government objections, on September 10. Id.
Several months later, on December 5, 1997, the Boston
Herald made public that the Department of Justice had conducted its
own probe into Bulger and Flemmi's relationship with their
handlers. The article reported that Judge Wolf had said at a
hearing the previous day that the Office of Professional
Responsibility had launched an internal probe and found "no
evidence of continuing criminal conduct within the statute of
limitations" by Agents Morris and Connolly. Some details of this
investigation were later revealed in Judge Wolf's opinion in
Salemme, issued on September 15, 1999:
-15-
In late June 1997, the Attorney General established a
task force of Department of Justice and FBI personnel to
investigate the allegations of misconduct raised by
Flemmi and the motions to suppress. That task force
conducted its investigation in July and early August
1997, and issued a confidential report to the Attorney
General. With the agreement of the government, the court
reviewed the Executive Summary of that report and some of
the documents that the investigation generated in order
to decide certain issues concerning discovery . . . .
91 F. Supp. 2d at 310. Nothing in the record indicates that the
underlying facts of the Office of Professional Responsibility
investigation were otherwise made public at the time. But from our
review of the docket in the Salemme case, it is clear that the
government repeatedly sought, at around this time, to keep Flemmi's
allegations of government misconduct and the government's response
to them under seal.
Judge Wolf held a series of evidentiary hearings from
January to October 1998 on the subject of Flemmi's claim of
immunity. Id. at 312. These hearings were open to the public.
Emily McIntyre attended part of a hearing on April 15, 1998. In an
article the next day, the Boston Herald reported that at that
hearing, Robert Stutman, the former local chief of the DEA,
testified that "agents in his office 'swore' that the FBI
compromised their Flemmi-Bulger probe to the point where the pair's
bureau 'handler' was unwelcome at DEA's offices." Stutman
admitted, however, that he had no proof of FBI wrongdoing and that
he "d[id]n't know now" if "the FBI [had] burn[ed] us on [the]
-16-
investigation." Nothing in the record indicates that Stutman ever
mentioned McIntyre in his testimony.
One week later, on April 22, Morris testified, under a
grant of immunity, that he had told Connolly in early 1982 that
another FBI informant, Brian Halloran, had said that Bulger and
Flemmi asked him to murder Roger Wheeler. Id. at 209. Morris
testified that Connolly told him that he had passed the information
on to Bulger and Flemmi. Halloran was murdered shortly thereafter
on May 11, 1982. The Boston Herald ran a story on April 23
summarizing Morris's testimony. As with Stutman, nothing indicates
that Morris ever mentioned McIntyre in his testimony.
On May 20, 1998, another DEA agent, Albert G. Reilly,
testified about the Valhalla. The Boston Globe summarized Reilly's
testimony the next day with the headline "DEA unable to link Bulger
to IRA guns." The story recounted that "authorities now believed
that Bulger had tipped off authorities to the gun-smuggling
operation and that he and Flemmi tortured a Quincy man, John
McIntyre, who was suspected of cooperating with the authorities"
(emphasis added). The story did not say, however, that the FBI had
tipped off Bulger as to McIntyre's identity as an informant. The
article also stated that Reilly had testified that he, like
Stutman, believed the DEA's investigation of Bulger and Flemmi had
been compromised by the FBI but had no way to prove it.
-17-
In early June 1998, after the May 25, 1998 critical date
for accrual of the McIntyre claims had passed, Richard Bergeron of
the Quincy Police Department testified about McIntyre's cooperation
and disappearance. Id. at 213. As best we can tell, Bergeron's
testimony was the first piece of evidence presented in the Salemme
proceedings that provided direct information about McIntyre's
disappearance. Bergeron testified that McIntyre was "petrified" of
the people he was implicating and that McIntyre was not the type of
potential witness whose cooperation could be publicly disclosed.
Bergeron then said that he told FBI Agent Kennedy that McIntyre had
implicated Bulger and his associates in the Valhalla operation. He
testified that he had arranged for Kennedy and a Customs agent to
interview McIntyre. Id. at 214. Kennedy had testified earlier, on
April 14, 1998, that he and Connolly often exchanged information.
Other evidence also indicated that Kennedy had participated in
protecting Bulger and Flemmi from investigation on previous
occasions. Id. But, because the government, apparently in
violation of discovery orders, did not produce Kennedy's reports of
his interview of McIntyre until after Kennedy had testified,
Kennedy was never questioned about whether he had passed on the
information about McIntyre to Connolly and, if so, whether Connolly
had told Bulger and Flemmi. Kennedy was not recalled to the
witness stand to provide this information. Id.
-18-
During Bergeron's cross-examination, the prosecution
asked him what individuals, to his knowledge, knew that McIntyre
was cooperating with authorities and might have passed on that
information. When defense counsel objected, the prosecution stated
that its line of questioning was in response to the implication
that "it was the FBI who may have leaked this [information to
Bulger and Flemmi] when there's literally a dozen people" other
than the FBI who could have done so (emphasis added). The
prosecution was explicit that the evidence was so speculative that
the court "shouldn't infer that there was some leak from the FBI
that led to Mr. McIntyre's disappearance" (emphasis added). The
prosecution then went on to establish that, in addition to the FBI,
the Quincy police, the Customs Service, and the DEA all knew of
McIntyre's cooperation. The prosecution also established that
McIntyre had spoken to authorities about a number of "notorious
criminals," as well as the IRA, "[a]ll of whom would have had a
motive to make him disappear."
Judge Wolf published a 260-page opinion in the
Salemme case on September 15, 1999, well after the cut-off date for
accrual of McIntyre's claims. As to McIntyre's disappearance, he
concluded,
[T]here is circumstantial evidence to suggest that
Kennedy may have told Connolly about McIntyre's
cooperation and claims and, in view [of] the Halloran
matter, reason to be concerned that Connolly may have
told Bulger and Flemmi. These issues cannot, however, be
resolved on the present record.
-19-
Id. at 214-15.
McIntyre's body was recovered on January 14, 2000. Kevin
Weeks, a Bulger associate, led law enforcement to McIntyre's
makeshift grave. Flemmi, 195 F. Supp. 2d at 251 n.45.
On May 25, 2000, McIntyre's estate filed a notice of tort
claim with the FBI.
On September 27, 2000, a grand jury returned a
superseding indictment of Bulger and Flemmi that alleged that in
October or November of 1984, Bulger and Flemmi learned that
McIntyre was cooperating with the FBI and Customs Service regarding
Bulger's involvement in both the Valhalla operation and the
importation of marijuana by boat into Boston, and, as a result,
kidnapped and murdered McIntyre. The indictment did not say how
Bulger and Flemmi discovered McIntyre's cooperation. On October
11, 2000, Connolly was indicted for his role in various murders
committed by Bulger and Flemmi, but not for any role in McIntyre's
murder.
On March 8, 2001, McIntyre's estate filed suit in federal
district court. McIntyre's claim was the first administrative
claim and first federal action to be filed arising from the FBI's
relationship with Bulger and Flemmi. On October 15, 2001, the
United States moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
on the ground that McIntyre's estate had failed to present its
-20-
administrative claims within two years of accrual, as required by
the FTCA, 28 U.S.C. § 2401(b).
On March 31, 2002, the district court granted the motion,
finding that the claims had accrued before April 1998. The court
reasoned that, prior to April 1998, the McIntyres clearly believed
John McIntyre to be dead and had sufficient facts to support a
reasonable inference that Bulger and Flemmi had killed him, based
on local press reports that McIntyre was last seen with Nee, a
Bulger associate, and that Bulger ran the Valhalla operation. The
court also determined that the McIntyres had enough information to
form the theory that "the FBI was at least negligent in [its]
handling of Bulger and Flemmi." The court relied principally on
(1) the FBI's acknowledgment in 1997 that Bulger and Flemmi were
informants and (2) the April 15, 1998 hearing, attended in part by
Emily McIntyre, in which DEA Agent Stutman testified about his
suspicions that the FBI had compromised a DEA investigation of
Bulger and Flemmi. Final judgment was entered on motion of
McIntyre's estate. The estate timely appealed.
B. Factual and Procedural Background Relevant to Wheeler
Roger Wheeler, a Tulsa businessman, owned World Jai Alai
(WJA), which operated facilities where spectators could bet on Jai
Alai matches. Salemme, 91 F. Supp. 2d at 208. John Callahan, who
had ties to the Winter Hill Gang, was president of WJA. Id.Wheeler suspected that Callahan was skimming money from WJA for
-21-
members of the Winter Hill Gang, including Bulger and Flemmi.
Wheeler fired Callahan and began an audit of WJA's financial
operations. Id. at 209. Before the audit was completed, on May
27, 1981, Wheeler was shot to death while sitting in his car in the
parking lot of a Tulsa country club. Id. at 207-08.
The Wheeler murder remained unsolved for many years. In
the spring of 1995, David and Lawrence Wheeler, two sons of Roger
Wheeler, visited the FBI's office in Tulsa to deliver some of their
father's records requested by the office. They stated that they
were unhappy with the lack of progress in the investigation.
According to David Wheeler's affidavit, FBI Agent Jack Hawkins
replied, "[I]f we do that, we will have to go wherever the evidence
might lead us . . . and you know, it might actually take us to some
involvement on the part of your mother. Are you willing to see
your mother go to jail?" David Wheeler interpreted this as a
threat intended to deter future complaints about the FBI's lack of
progress.
The Tulsa World and the Daily Oklahoman published at
least twelve articles on Wheeler's murder between 1995 and 1999.
At the time, Patricia (Wheeler's widow), Pamela (Wheeler's
daughter), and Lawrence (one of Wheeler's sons) were living in
Tulsa. David, along with another of Wheeler's sons, Mark, was
living in Texas. Patricia and David stated by affidavit that they
recalled reading some of the Oklahoma press coverage. Lawrence and
-22-
Mark recalled reading one or two articles, and Pamela said she did
not read any of them.
On January 19, 1995, the Tulsa World published a story
stating that Brian Halloran had told the FBI that John Callahan
offered him a contract to kill Wheeler, but that Halloran refused
the offer. The article noted that Halloran was murdered shortly
thereafter in 1982. On July 11, 1997, as proceedings in the
Salemme trial were developing, the Tulsa World reported that Bulger
and Flemmi were "potential suspects" in Wheeler's murder and that
Flemmi had executed an affidavit stating that he and Bulger were
informants and "were given free reign from an FBI supervisor to
commit any crime as long as they did not 'clip anyone.'" On
November 9, 1997, a Tulsa television station reported that the
Wheeler investigation "ha[d] been held up by the FBI's attempts to
bring down the Mafia in Boston" and that "the FBI did not share
information it had about the death of Roger Wheeler Senior." The
next day, the Tulsa World reported that "[i]nvestigators said that
the prime suspects in Wheeler's killing turned out to be two highly
placed mob informants, working with the Boston FBI" and that the
"Boston FBI protected their informants, James 'Whitey' Bulger and
Steven [sic] 'The Rifleman' Flemmi."
On May 10, 1998, David Wheeler was interviewed by Ed
Bradley on CBS's "60 Minutes" program. The following exchange was
televised:
-23-
Bradley: David Wheeler, Roger Wheeler's son, says he had
trouble understanding why his father's murder had
remained unsolved for so long. Until he found out Bulger
and Flemmi were FBI informants.
Wheeler: We've discovered that all along the FBI has been
in bed with the prime suspects in my father's murder.
Bradley: So you believe that the FBI protected your
father's killers and tried to prevent the truth from
coming out?
Wheeler: They not only protected my father's killers,
they to this day are protecting my father's killers and
they are to this day withholding information from the
police. This is eighteen years of covering up the crime.
This is eighteen years of being an accessory to murder.
At the close of the segment, David Wheeler also said, "In the end,
there's one group, one group of people, that were supposed to help
us, and that was the FBI, and those are the very people that
betrayed us, those are the very people that continue to betray us
to this day."
During the segment, Bradley said that the "extraordinary
relationship between the FBI and two organized crime bosses,"
namely Bulger and Flemmi, "may have allowed the FBI informants to
get away with murder." The segment also contained an interview of
Homicide Sergeant Michael Huff of the Tulsa police department, who
said that the Boston FBI had failed to share Halloran's information
with local and federal investigators in Tulsa working on the
Wheeler investigation and that this failure constituted
"obstruction of justice." Bradley also interviewed five detectives
from Oklahoma, Florida, and Connecticut. He stated that these
-24-
detectives believed the Wheeler murder remained unsolved "because
Bulger and Flemmi were protected by the FBI while they were
providing information on the Italian Mafia in New England." One
detective, David Green, said that the FBI gave Bulger and Flemmi a
"license to steal" and that "apparently that license got a little
broader and covered a homicide."
David Wheeler said, by affidavit, that when he accused
the FBI of a cover-up on "60 Minutes," he meant only that he had
previously been unaware of Bulger and Flemmi's status as informants
and that he "felt as though the FBI should have shared this
information with [him] . . . long before this time." He said that
he did not believe at that time that the FBI was responsible in any
way for his father's death and that he had no facts to support such
a belief.
Patricia and Lawrence said by affidavit that they saw
David on "60 Minutes." Pamela and Mark said, also by affidavit,
they did not see David on "60 Minutes" and did not discuss the show
with David or anyone else. Mark said that he was aware that David
appeared on the show, but Pamela said that she could not remember
if she had been aware of that fact at the time. The Wheelers said
in their respective affidavits that tensions had arisen in the
family since Roger's murder and that they communicated very little
among themselves, particularly concerning the painful subject of
the murder.
-25-
Following the "60 Minutes" interview, David Wheeler also
gave interviews to the Boston press. On May 12, 1998, The Boston
Herald reported that David Wheeler said that he "has always
believed that [former FBI Agent Paul] Rico facilitated his father's
delivery into oblivion" but that he only recently "discovered that
oblivion may well have had names like Whitey and Stevey." The
article noted that David Wheeler said his father thought Rico might
be trying to kill him. The article described Rico as Flemmi's "FBI
mentor" and noted that Rico had recruited Flemmi as an informant.
On July 22, 1998, the Boston Globe interviewed David Wheeler and
described him as "now believ[ing] the FBI has obstructed the
investigation into his father's murder." The article also
summarized the testimony of John Morris at the Salemme hearings in
April 1998, noting that Morris had testified that he told Connolly
that Halloran had implicated Bulger and Flemmi in the Wheeler
murder investigation and that Connolly may have passed this
information on to Bulger and Flemmi. On September 29, 1998, the
Boston Globe reported John Martorano, a member of the Winter Hill
gang, was negotiating a plea agreement with federal prosecutors.
Describing David Wheeler as "the son of one of Martorano's alleged
victims," the article quoted him as stating that he would approve
of a plea agreement for Martorano because "[t]he people he's giving
up are the people who have enjoyed the protection of the FBI for
many years while committing heinous crimes."
-26-
By affidavit, David Wheeler said that he had "probably"
read these articles, but Patricia, Pamela, and Lawrence said that
they had not, and Mark said that he did not recall whether he read
them.
At around the same time, in the summer of 1998, there was
Tulsa press coverage of developments in the Wheeler murder. On May
17, 1998, the Tulsa World published an article with the headline:
"When G-men, Mobsters Are Friends/FBI Ignored Tip-Off on Tulsa
Murder." The article summarized Morris's testimony in April 1998,
reporting that Morris had admitted to receiving cash and gifts from
Bulger and Flemmi, and to working with other agents to "shield[]
Bulger and Flemmi from prosecution for 20 years because they were
the most prized secret FBI informants in New England history." A
summary of Morris's testimony was again reported in a July 20, 1998
Tulsa World article about the Wheeler murder. The article also
reported that John Martorano had agreed to cooperate with federal
prosecutors and to testify against Bulger and Flemmi in the Wheeler
murder case.
On September 9, 1999, after the Wheelers' May 11, 1999
cut-off date for accrual had passed, Judge Wolf unsealed John
Martorano's plea agreement, in which Martorano admitted that he had
murdered Roger Wheeler. Judge Wolf's September 15, 1999 decision
in Salemme described a series of specific incidents in the early
1980s, before Wheeler's murder, in which FBI agents shielded Bulger
-27-
and Flemmi from investigation. 91 F. Supp. 2d at 202-06. As to
Wheeler's murder, Judge Wolf found that partly because of
irregularities in the FBI's handling of the files relating to
Wheeler's murder, "questions remain regarding the role, if any,
played by Flemmi and Bulger in the Wheeler, Halloran, and Callahan
murders, and the full degree to which the FBI in Boston has, from
1981 until recently, attempted to keep any such role from being
discerned and demonstrated." Id. at 213. He noted that a pattern
of false statements in Flemmi's informant file diverted attention
from Flemmi's crimes and FBI misconduct, that reports containing
Halloran's allegations against Bulger and Flemmi were not indexed
according to usual FBI policy and hence could not be discovered
through a standard search of FBI indices, and that the FBI had
disobeyed discovery orders by its late disclosure of relevant
documents. Id. at 154 n.3.
On December 22, 1999, John Connolly was indicted for
racketeering. A superseding indictment was returned on October 11,
2000. It charged that Connolly had alerted Bulger and Flemmi to
the identity of confidential law enforcement informants, tipped
them off to various law enforcement initiatives, and failed to
report information relating to them that was material to the
investigation of criminal activity in the Boston area. It also
charged that Connolly had obstructed a grand jury investigation
-28-
into Wheeler's murder and tipped Bulger and Flemmi to Halloran's
cooperation.
On September 27, 2000, a federal grand jury returned an
indictment charging Bulger and Flemmi with racketeering; two of the
predicate acts for the racketeering charge were the murder of Roger
Wheeler and the conspiracy to commit that murder.
The Wheelers filed a notice of tort claim with the FBI on
May 11, 2001. After the FBI failed to respond, the Wheelers filed
suit in federal court on March 14, 2002. As in the McIntyre case,
the United States moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) on the ground that the Wheelers had failed to present
their administrative claims within two years of accrual, as
required by the FTCA, 28 U.S.C. § 2401(b). On March 31, 2003, the
district court granted the motion, finding that the Wheelers' claim
accrued no later than May 10, 1998, when David Wheeler appeared on
"60 Minutes." The court reasoned that David Wheeler's statements
showed that he knew that Bulger and Flemmi were suspected in his
father's murder and that they may have escaped investigation and
prosecution for the crime with the assistance of the FBI. The
court then went on to say that "[i]t does not matter that not all
the plaintiffs in this case were as informed as David Wheeler"
because they were in possession of sufficient facts to place them
on inquiry notice. Final judgment was entered on motion of the
Wheelers, who then timely appealed.
-29-
II.
A. The FTCA Accrual Standard
The FTCA provides, in relevant part, 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." 28 U.S.C. § 2401(b). Because the
FTCA is a waiver of sovereign immunity, it is strictly construed.
Skwira v. United States, 344 F.3d 64, 73 (1st Cir. 2003).
Normally, a tort claim accrues at the time of injury.
Gonzalez, 284 F.3d at 288. In United States v. Kubrick, 444 U.S.
111 (1979), the Supreme Court created a "discovery rule" exception
for FTCA claims involving medical malpractice. The Court held that
such claims accrue when a plaintiff knows of both the existence and
the cause of his injury. See id. at 119-202. The Court
determined that accrual does not await the point at which a
plaintiff also knows that the acts inflicting the injury may
constitute medical malpractice. Id. at 122. Distinguishing
between ignorance of the facts (of injury or its cause) and
ignorance of legal rights, the Court reasoned that a claimant, once
armed with knowledge of the fact of injury and the identity of the
parties that caused the injury, is no longer at the mercy of the
government. At that point, claimants can go to others, such as
doctors or lawyers, who will tell them if they are victims of
malpractice. Id. The same is not necessarily true of plaintiffs
-30-
who are ignorant of the facts, particularly when the government may
be in possession or control of the necessary information.
This court has extended this discovery rule to FTCA
claims outside the medical malpractice context. Skwira, 344 F.3d
at 74; Attallah v. United States, 955 F.2d 776, 780 (1st Cir.
1992). Most circuits also apply a discovery rule to wrongful death
actions. See Skwira, 344 F.3d at 74 (collecting cases).
Under the discovery rule, "a claim accrues when the
plaintiff discovers, or in the exercise of reasonable diligence
should have discovered, the factual basis for the cause of action."
Gonzalez, 284 F.3d at 288. The test for whether a plaintiff should
have discovered necessary facts is an objective one. Id. at 288-
89. We look first to whether sufficient facts were available to
provoke a reasonable person in the plaintiff's circumstances to
inquire or investigate further. "A claim does not accrue when a
person has a mere hunch, hint, suspicion, or rumor of a claim, but
such suspicions do give rise to a duty to inquire into the possible
existence of a claim in the exercise of due diligence."
Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)
(citation omitted and emphasis added). Once a duty to inquire is
established, the plaintiff is charged with the knowledge of what he
or she would have uncovered through a reasonably diligent
investigation. Skwira, 344 F.3d at 77. The next question is
whether the plaintiff, if armed with the results of that
-31-
investigation, would know enough to permit a reasonable person to
believe that she had been injured and that there is a causal
connection between the government and her injury. Id. at 78.
Definitive knowledge is not necessary. Id. This inquiry is highly
fact- and case-specific, as are the pertinent questions to ask.
In Attallah, for example, the plaintiffs learned in
September 1982 that the decomposed body of their courier, who had
been transporting almost $700,000 of their money to Puerto Rico,
had been found. 955 F.2d at 778. Over four years later, two
Customs agents were indicted for the robbery and murder of the
courier. Id. The court found that the plaintiffs had filed a
timely administrative claim against the United States because their
claim accrued when the Customs agents were indicted, not when the
courier's body was found. Id. at 780. The court focused on the
fact that aside from the indictment, the only information that the
plaintiffs had available about the whereabouts of their courier was
a Customs Service document showing that their courier had been
processed at the airport customs office and then left the premises.
Id. The court reasoned that if it took the police until 1987 to
discover sufficient information to bring charges against the
Customs agents, the plaintiffs could not be expected to be more
efficient. Id.Another example is the Skwira case, in which a divided
court, in three opinions, found that the plaintiffs had failed to
-32-
file a timely administrative claim. Skwira, 344 F.3d at 83-86.
There, the claim was that a VA nurse had murdered Edward Skwira, a
patient at the Northampton VA hospital, by injecting him with the
stimulant epinephrine. The facts convincing to the majority on the
issue of accrual were as follows. Skwira was admitted to a
substance abuse treatment facility in Worcester, Massachusetts, in
early February 1996 for the treatment of chronic alcoholism and on
February 15 was transferred to Ward C of the VA hospital, where the
murderess was working. Id. at 69. Despite the absence of any
reason to anticipate heart problems, he suffered a catastrophic
cardiac event later that day and died on February 18, with heart
ailments listed as the immediate cause of death. Id. By the
summer of 1996, articles began appearing in the Northampton local
press describing an ongoing criminal investigation into the high
number of suspicious deaths in Ward C, and the administrator was
quoted as not ruling out foul play. Id. at 68, 80. By September
or October of 1996, investigators contacted the families of some of
the victims, including Skwira's, to voice the government's
"suspicions" about the deaths and obtained permission to exhume and
autopsy the bodies. Id. at 68. Skwira's autopsy showed that the
death certificate had misstated the cause of death. Id. As the
concurring opinion stated, at that point "a reasonable person would
have believed that some kind of negligence or misconduct by
government employees at the hospital might well underlie Edward
-33-
Skwira's death." Id. at 85 (Boudin, C.J., concurring). Had the
plaintiffs sought out independent legal and medical advice at that
point, they should have been able to determine in the two-year
period whether to file an administrative claim. See Skwira, 344
F.3d at 81. The court observed that two other victims' families
did file timely claims, whereas the Skwiras waited three years
after the autopsy report before filing. Id. at 82 n.19.
Skwira is instructive in the ways in which it is both
like and unlike the two cases at bar. The differences are obvious.
Unlike the victims in the cases at bar, Skwira was in the sole
custody and care of a government hospital and, overwhelmingly, the
most likely malefactor was one of a very limited group of
government employees at that hospital. All of the deaths occurred
in the same place with the same small cast of characters. See
United States v. Gilbert, 229 F.3d 15, 18 (1st Cir. 2000) (the
deaths in Ward C of the VA hospital occurred over a six-month
period). There was also certainty the patients were dead, unlike
in McIntyre's situation.
The chief similarity between the two cases at bar and
Skwira is that there was a government investigation into possible
wrongdoing in all three cases. But the circumstances of the
investigation here were different than in Skwira. There, the
government came to the family with its suspicions of wrongdoing at
the hospital and explained the factual basis for those suspicions.
-34-
344 F.3d at 68. The government then helped develop the evidence of
wrongdoing, informing the family that the cause of death reported
was different than that found in Skwira's autopsy. Id. By
contrast, in the two cases at bar, the government did not inform
the plaintiffs of any investigation, appears to have held the facts
revealed in its investigation confidential, and ultimately claimed
to have cleared its agents of wrongdoing before the critical dates
for accrual purposes.5
B. Application to McIntyre's Claims
The claims made by the estate of McIntyre are based on
two interrelated theories of how the FBI caused McIntyre's death:
(1) by leaking his confidential informant status to Bulger and
Flemmi, in violation of a special duty of non-disclosure owed to
him by the government, and (2) by protecting Bulger and Flemmi from
investigation and prosecution, thus enabling and emboldening them
to murder him. As we understand the second theory, it is meant to
buttress the first theory; it is perhaps also meant to serve as an
independent basis for liability.6 The first theory, which we
understand to be the predominant one, arises out of a special duty
5
The plaintiffs here do not argue that the pendency of a
government investigation should automatically toll accrual of their
claims. That argument was rejected in Skwira, which found no
statutory basis for such tolling. See 344 F.3d at 85-86 (Boudin,
C.J., concurring).
6
To the extent that the plaintiff does intend the second
theory as an independent basis for liability, the United States is
free to challenge the availability of that theory on remand.
-35-
that the government has to confidential informants who would be
endangered if their informant status were revealed to others,
particularly those whose activities are the subject of the
informant's disclosures. The FBI Manual requires agents to
exercise constant care to ensure that an informant's identity is
not disclosed, whether intentionally or inadvertently. Salemme, 91
F. Supp. 2d at 150; see also Leonhard v. United States, 633 F.2d
599, 614 (2d Cir. 1980) ("The procurement of testimony against
alleged members of organized crime will normally require
appropriate protection of both the informant and his family.");
Socialist Workers Party v. Attorney Gen. of United States, 458 F.
Supp. 895, 907 (S.D.N.Y. 1978) ("[T]he FBI asserted that it owed
the duty of confidentiality to the informants to protect them from
embarrassment and harm."), vacated on other grounds, In re Attorney
Gen. of United States, 596 F.2d 58 (2d Cir. 1979). Because we find
that the plaintiff could not reasonably be expected to have
discovered the facts supporting the first theory until after May
25, 1998, we find that the case was not properly dismissed and
therefore reverse.
The plaintiff's predominant theory depends on the
following reasoning:
1. McIntyre was cooperating with the government in
its investigation of Bulger and Flemmi, which
imposed a duty on the FBI;
-36-
2. McIntyre was murdered;
3. Bulger and Flemmi were responsible for the
murder;
4. McIntyre was murdered because Bulger and Flemmi
learned he was informing on them to government
authorities;
5. It was agents of the FBI, Connolly and/or Morris,
who told Bulger and Flemmi that McIntyre was
cooperating with the FBI.
The district court focused on the first three parts of this
sequence only. This did not go far enough. The key missing links
are the fourth and fifth points. We focus on the fifth: whether a
reasonable person in the McIntyres' position, after conducting a
diligent investigation, would have uncovered a sufficient factual
basis to believe, before May 25, 1998, that the FBI was the source
of the leak to Bulger and Flemmi. We conclude that he or she would
not have.
Certainly before May of 1998, the McIntyre family knew of
facts that would permit a reasonable person to believe that Bulger
and Flemmi were responsible for the killing of John McIntyre in
1984 and that Bulger and Flemmi were FBI informants. In our view,
that was not enough to trigger accrual, in light of the nature of
McIntyre's claims.
-37-
A June 1997 Boston Globe article, described in our review
of the facts, reported that witness statements and other evidence
supported the conclusion that Bulger and Flemmi had McIntyre
kidnapped, tortured him to find out what he had told the
authorities, and then murdered him. Implicit in this report was
that Bulger and Flemmi had somehow found out McIntyre was an
informant. But the article never even mentioned the possibility
that the FBI had disclosed this information to Bulger and Flemmi or
had otherwise given its imprimatur to the murder.
Furthermore, the McIntyres were also faced with the
government's affirmative denials of any wrongdoing in the
relationship between Bulger and Flemmi and FBI agents Morris and
Connolly. The government repeatedly denied wrongdoing in Boston
Globe articles from 1988 through 1995, and one article reported
that an internal FBI investigation had cleared the two agents.
Then, a December 5, 1997 Boston Herald article stated that the
Department of Justice's Office of Professional Responsibility had
investigated and "cleared the FBI handlers [Morris and Connolly] of
[wrongdoing involving] informant gangsters Whitey Bulger and
Stephen Flemmi." Faced with a denial of wrongdoing by the FBI
itself, and lacking any basis to controvert the denial other than
rumor, the McIntyres did not have a reasoned basis to believe that
it was the FBI that had leaked McIntyre's identity as an informant
to Bulger and Flemmi.
-38-
We turn to the question whether there was later
information between the December 5, 1997 denial of wrongdoing by
the FBI and May 25, 1998 that provided notice of that missing link.
The district court found such an event based on testimony by Agent
Stutman, the former local chief of the DEA, in the Salemme hearings
on April 15, 1998. Because Emily McIntyre attended part of those
hearings, the court attributed to her knowledge of Stutman's
statements that he and agents in his office suspected that the FBI
had compromised their investigation of Bulger and Flemmi but had no
facts to confirm their suspicions. Even assuming that statement
provided a reasoned basis to believe that the FBI had compromised
the DEA's investigation, perhaps by tipping Bulger and Flemmi to
listening devices or warning them of raids, it does not provide a
reasoned basis to believe that the FBI leaked McIntyre's informant
status to Bulger and Flemmi.
The government points to a different event: an April 23,
1998 Boston Herald story reporting that the previous day, Morris
had testified that in 1982, he told Connolly, who in turn told
Bulger and Flemmi, the identity of FBI informant Brian Halloran,
who had informed authorities that Bulger and Flemmi tried to hire
him to kill Roger Wheeler. The government argues that this
information -- that the FBI had leaked to Bulger and Flemmi the
identity of a different informant, as to a different crime, at a
different time -- provided sufficient facts for a reasonable person
-39-
to believe that the same thing had happened to McIntyre. The
government argues that if there was evidence Bulger and Flemmi
killed Halloran because the FBI told them Halloran was an
informant, then a reasonable person could have inferred that Bulger
and Flemmi also killed John McIntyre based on a similar FBI leak.
The government's analogy overreaches both as a matter of logic and
as a matter of fact.
Even assuming arguendo that the Boston Herald article was
enough to lead the McIntyres to suspect that the FBI leaked
McIntyre's identity, and thus to trigger a duty to inquire, a
reasonably diligent investigation would still not have revealed the
necessary factual predicate for their claim before the accrual
date. Most avenues of investigation were cut off by the
possibility of criminal liability for any FBI agents and others
involved. Attempts to gain information through depositions would
likely have been thwarted by invocations of the Fifth Amendment
privilege against self-incrimination. And other information --
such as testimony before the grand jury or facts discovered in the
government investigation -- was hidden behind a veil of secrecy.
In this sense, the McIntyres had even less access to critical
information than most FTCA plaintiffs. See Kubrick, 444 U.S. at
122 (adopting a discovery rule in part because "the facts about
causation may be in the control of the putative defendant,
-40-
unavailable to the plaintiff or at least very difficult to
obtain").
Without more specific information than provided in the
Boston Herald article, a reasonable person could not have had a
basis to claim that the FBI betrayed McIntyre's cooperation to
Bulger and Flemmi. Bulger and Flemmi apparently murdered people
for many reasons. Some of those people were informants. But,
without more, one cannot reasonably deduce from a victim's
informant status (1) that Bulger and Flemmi knew the victim to be
an informant, (2) that, if Bulger and Flemmi knew the victim to be
an informant, they murdered the victim for that reason, and (3)
most importantly, that even if Bulger and Flemmi murdered the
victim for being an informant, the source of their information as
to the victim's informant status was the FBI. One could not
reasonably infer, for purposes of FTCA accrual, from Morris's
testimony about Halloran that the FBI told Bulger and Flemmi about
every informant in their organization or that Bulger and Flemmi
killed every person that they knew to be informing against them,
regardless of the circumstances.
Drawing a direct parallel between the murders of Halloran
and McIntyre is particularly difficult because the situations were
so different. The cases involved different and unrelated
underlying crimes that took place at different times and in
different places: the Wheeler murder was in 1981 in Oklahoma and
-41-
was related to control of a Jai Alai empire, whereas the Valhalla
gun-running operation was in 1984 in Boston for the IRA. Moreover,
Halloran arguably posed a greater threat to Bulger and Flemmi as an
informant than McIntyre did. As Bergeron noted, and as Bulger and
Flemmi might well have been aware, McIntyre was "petrified" of the
two and was unlikely to come forward publicly or, by implication,
to testify. McIntyre was a low-level operative in a gun-running
operation, whereas Halloran was a hit man with the power to
implicate Bulger and Flemmi for murder. Another factual difference
is that there was some indication, as the prosecution itself argued
in Salemme, that McIntyre's cooperation was known to those outside
the government, and thus that Bulger and Flemmi could have
discovered this information from some source other than the FBI.
A January 29, 1995 Boston Globe article reported that "[r]umors
that McIntyre was talking [to the federal government] were rampant"
at the time.
The government's own behavior further undercuts its
argument here that there were sufficient facts before May 25, 1998
to reasonably infer that FBI had betrayed McIntyre. In response to
a defense objection during the cross-examination of Bergeron in the
Salemme hearings on June 4, 1998, the prosecution said that
"there's literally a dozen people" outside the FBI who knew of
McIntyre's cooperation and could have passed the information to
Bulger and Flemmi. The prosecutor argued that Judge Wolf
-42-
"shouldn't infer that there was some leak from the FBI that led to
Mr. McIntyre's disappearance" because the evidence was too
speculative. That, of course, is directly contrary to the position
of the United States as stated in the case at bar: that before May
of 1998, the McIntyres not only should have drawn exactly that
inference but should have acted on it by seeking legal and other
expert advice about filing an FTCA claim.
In the June 1998 Salemme hearings, after the critical
date for accrual purposes had passed, the prosecution also sought
to establish in its questioning of Bergeron that McIntyre had
spoken to authorities about a number of notorious individuals, as
well as the IRA, "[a]ll of whom would have had a motive to make him
disappear." This casts further doubt on whether Bulger or Flemmi
had caused McIntyre's disappearance, making even more remote the
inference that the FBI had leaked McIntyre's identity as an
informant and caused his murder.
This government position in June of 1998 is significant
for several reasons. It shows that there was a real basis to
question whether it was at all reasonable to infer that Connolly
had disclosed McIntyre's dual role to Bulger. We have no reason to
think the federal prosecutor's position in Salemme was taken in bad
faith. The prosecution, which had access to confidential
information and was in possession of far more facts than members of
the public, argued to the court that it could not reasonably make
-43-
such an inference. The McIntyres, who were in a far worse position
to access or evaluate information, should not be required here to
draw such an inference. See Attallah, 955 F.2d at 780 ("The police
did not have sufficient information to bring charges against the
[relevant government officials] until 1987. We believe
[plaintiffs] could not have been more efficient.").
Equally importantly, the prosecutor's position in June of
1998 was yet another expression by the United States in a public
forum that Connolly had not leaked McIntyre's identity and no
wrongdoing had occurred.
Our decision in Skwira hurts rather than helps the
government's position. The United States in Skwira told the
plaintiff that there was cause to investigate suspicious deaths of
patients who were within the sole custody of a VA hospital when
they died and did not deny wrongdoing. 344 F.3d at 80. Here, the
government kept confidential its investigation of claims of
misconduct by Connolly and Morris and ultimately reported in 1997
that it found no wrongdoing. Even Judge Wolf had great difficulty
in prying loose coherent information about McIntyre's death by the
date of his opinion on September 15, 1999. Judge Wolf commented
that the question of whether the FBI disclosed McIntyre's identity
could not "be resolved on the present record" because of the
government's delayed disclosure of documents and its desire to
-44-
avoid bringing to light the circumstances surrounding McIntyre's
death. Salemme, 91 F. Supp. 2d at 215.
We reverse the dismissal of the claims by McIntyre's
estate and remand.
C. Application to the Wheeler Case
The cut-off date for the accrual of the Wheelers' claim,
filed on May 11, 2001, is May 11, 1999. The district court
concluded that their claim accrued on or before May 10, 1998 when
Roger Wheeler appeared on "60 Minutes."
The Wheeler case is based on a fundamentally different
legal theory than the McIntyre case. Unlike the McIntyre case,
which is based on duties arising from the government/informant
relationship, the Wheelers' claim is not based on any direct
relationship between Roger Wheeler and the FBI. The theory of
liability is, as a result, much more indirect than that in the
McIntyre case.
The Wheelers have styled their Mass. Gen. Laws. ch. 229,
§§ 2 and 6 wrongful death claims against the United States as based
on both direct and vicarious liability. They assert that the United
States is vicariously liable for the actions of Connolly, Morris,
and other agents, which provided Bulger and Flemmi with a
"protective shield" against prosecution and investigation that gave
the two criminals the opportunity to commit crimes and emboldened
them to do so, proximately causing Wheeler's murder. The Wheelers
-45-
also assert that the United States is directly liable for failing
to prevent Wheeler's murder, in light of the foreseeable risk that
Bulger and Flemmi would continue to engage in violent criminal
activity. In addition, the Wheelers assert a generalized count
against the United States for intentional infliction of emotional
distress based on Wheeler's murder.
For the Wheelers' claims to accrue, there had to be facts
available that would permit a reasonable person to conclude (1) that
Bulger and Flemmi were instrumental in the murder of Roger Wheeler;
(2) that Bulger and Flemmi were informants for the FBI; and (3) that
the FBI had a special relationship with Bulger and Flemmi that
protected and encouraged them in their criminal activity, including
Wheeler's murder.
The Wheelers clearly had sufficient notice of the first
two sets of facts before the May 11, 1999 accrual date. On April
22, 1998, Morris testified that Bulger and Flemmi were valuable FBI
informants and that he was afraid he had sent Halloran to his death
by telling Connolly that Halloran was alleging that Bulger and
Flemmi had tried to hire him to kill Wheeler. Morris's testimony
on this point received national press attention. It was summarized
in two Tulsa World articles on May 17, 1998 and July 20, 1998 and
in a July 22, 1998 Boston Globe article that quoted David Wheeler.
In addition, a July 20, 1998 Tulsa World article and a September 29,
1998 Boston Globe article, which quoted David Wheeler, both reported
-46-
that John Martorano was negotiating a plea agreement with federal
prosecutors and had implicated Bulger and Flemmi in the Wheeler
murder. In addition, as the district court fairly pointed out,
David Wheeler stated on the May 10, 1998 "60 Minutes" show that
Bulger and Flemmi had caused his father to be murdered, that the two
were FBI informants, and that the FBI was "in bed" with the two.
What proves fatal to the Wheelers' claim is that they were
also on notice of the third set of facts. We sidestep the dispute
about whether David Wheeler meant his statements on "60 Minutes" to
indicate that the FBI had protected Bulger and Flemmi from
prosecution and thus enabled and emboldened them to murder his
father. Other statements on the "60 Minutes" show should have made
clear the special relationship between the FBI and Bulger and
Flemmi. Ed Bradley reported that the "extraordinary relationship"
between the FBI and Bulger and Flemmi "may have allowed [them] to
get away with murder." A detective interviewed for the segment was
even more explicit, describing Bulger and Flemmi as having a
"license" from the FBI to commit crimes that "covered a homicide."
In addition, separate from the "60 Minutes" show, there
was national and local news coverage before the critical date
describing the FBI's shielding of Bulger and Flemmi from
prosecution. At least some of those articles should have caught the
Wheelers' attention, because they specifically referenced Roger
-47-
Wheeler's murder and even, in several instances, quoted David
Wheeler.
Two Tulsa World articles on July 11, 1997 and January 9,
1998, both of which specifically mentioned the Wheeler murder,
reported that Flemmi was claiming in the Salemme proceedings that
the FBI gave him and Bulger immunity from prosecution for their
ongoing criminal activities in exchange for information about
organized crime activities. The July 11 article specifically noted
that Flemmi had executed an affidavit stating that he and Bulger had
been given "free reign from an FBI supervisor to commit any crime"
short of murder. On May 10, 1998, the same night that the "60
Minutes" segment ran, a local Tulsa news station, KOTV, reported
that the FBI had tipped Bulger and Flemmi to Halloran's cooperation
in the Wheeler murder investigation and that Boston FBI agents may
have taken bribes from Bulger and Flemmi.
In the summer of 1998, two Tulsa World articles and one
Boston Globe article that quoted David Wheeler reported that Morris
admitted that the FBI had shielded Bulger and Flemmi from
prosecution for twenty years because they were prized informants.
The Tulsa World article was entitled "When G-men, Mobsters Are
Friends/FBI Ignored Tip-Off on Tulsa Murder." All three articles
specifically mentioned the Wheeler murder. Morris's testimony was
also picked up by the national press, with coverage in May and June
of 1998 from the Associated Press, the Salt Lake Tribune, the
-48-
Charleston Gazette & Daily Mail, the L.A. Times, and the Seattle
Times.
In the summer and fall of 1998, following the "60 Minutes"
segment, David Wheeler himself drew the connection between his
father's murder and the FBI's special relationship with Bulger and
Flemmi in his comments to the Boston press. In a May 12, 1998
article headlined "Dad's execution mystery no more to anxious son,"
the Boston Herald described David Wheeler as saying in an interview
that he "always believed" that former FBI agent Paul Rico
"facilitated" his father's murder at the hands of Bulger and Flemmi.
Wheeler also told the Boston Globe on September 29, 1998 that John
Martorano's cooperation would expose "people who have enjoyed the
protection of the FBI for many years while committing heinous
crimes."
The Oklahoma press and television coverage, the
information revealed on "60 Minutes," and David Wheeler's interviews
with the Boston press are sufficient to establish that David Wheeler
was clearly on notice before the May 11, 1999 critical date.
The issue is whether the other family members, in their
different positions, could reasonably be expected to be aware of
this information. The district court focused on David Wheeler and
attributed his knowledge to all. We disagree with that methodology:
the "knew or reasonably should have known" question must be asked
individually, as to the information available to someone in each
-49-
plaintiff's situation. There is a difference between "knew" and
"should have known." A plaintiff could, at least in theory, have
actual knowledge of critical facts even though he or she would not
otherwise be reasonably expected to know them. As to whether a
plaintiff "reasonably should have known" critical facts, the inquiry
is an objective one: whether a reasonable person similarly situated
to the plaintiff would have known the necessary facts. See Skwira,
344 F.3d at 80 (the "degree of knowledge of injury and cause that
would prompt a reasonable person to take . . . protective steps
will vary with the circumstances of the case"); cf. Rodriguez
Narvaez v. Nazario, 895 F.2d 38, 41 n.5 (1st Cir. 1990) (describing
a similar constructive knowledge test, used to determine accrual of
federal civil rights claims, as whether "a reasonably prudent person
similarly situated" should have known the necessary facts).
Where there are several plaintiffs and they do not live
in the same geographical area, and public notice of the underlying
facts is restricted to certain areas, geography is a factor to be
considered. Geography may be particularly relevant where, as here,
notice is based on local television and press coverage. Similarly,
where, as here, some members of the family have actual notice but
others do not, the issue of how strong the family's ties are and how
frequently they communicate can be relevant. A plaintiff who is
estranged from other more knowledgeable family members is
-50-
differently situated than one who speaks with his or her family
every day.
Despite this leeway, the record here establishes that each
of the Wheelers had available sufficient facts to raise suspicions
provoking a reasonable person to inquire further. See Phillips
Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st
Cir. 1999) (this court "may affirm the judgment for any independent
reason made manifest in the record"). Had the Wheelers inquired
further, the requisite facts were present in the Boston and Oklahoma
television and press coverage to allow a reasonable person to infer
a causal connection between the FBI's actions and Roger Wheeler's
murder.
Patricia Wheeler (Roger's widow) saw the "60 Minutes"
program in May 1998 and some of the Oklahoma press articles; they
were sufficient at least to trigger a duty to inquire before the May
11, 1999 critical date, painful as the subject was to her. The same
is essentially true of Lawrence Wheeler, one of Roger's sons.
Pamela Wheeler Norberg (Roger's only daughter) did not see
the "60 Minutes" segment. She has stated by affidavit that she did
not read any of the press coverage in the record on the painful
subject of her father's murder, and that she is estranged from her
brothers and communicates with them only infrequently. While her
claim presents a closer case, we find that she had a duty to inquire
based on local and national press coverage. "[W]here events receive
-51-
. . . widespread publicity, plaintiffs may be charged with knowledge
of their occurrence." United Klans of Am. v. McGovern, 621 F.2d
152, 154 (5th Cir. 1980) (national news coverage over networks,
wire, and newspapers reported that defendant held press conference
admitting facts supporting the claim); see also Hughes v. Vanderbilt
Univ., 215 F.3d 543, 548 (6th Cir. 2000) (front-page stories in two
local newspapers and a major television network gave rise to
constructive knowledge, even though plaintiff said she did not see
the coverage). Although we recognize that the question of whether
a reasonable person in Pamela's position would have read news
coverage is a fact-intensive inquiry and can sometimes be difficult
to resolve on a motion to dismiss,7 we find that, on the facts of
this case, the record is sufficient to establish notice. Local news
coverage in Tulsa, where Pamela lived, was extensive and mentioned
Roger Wheeler specifically by name, often in the lead paragraph of
the story. Furthermore, nothing in the record shows that Pamela was
estranged from her mother, who did watch the "60 Minutes" show and
read at least some press coverage. A reasonable person in Pamela's
7
See Bibeau v. Pac. Northwest Res. Found., Inc., No. 97-
35825, 1999 U.S. App. LEXIS 38092, at *13 (9th Cir. Aug. 19, 1999)
(additional factfinding necessary to determine if press coverage
would have reasonably put a similarly situated plaintiff on
notice); Orikow v. United States, 682 F. Supp. 77, 85 (D.D.C. 1988)
(more factfinding necessary for accrual of FTCA claim because
"[n]ewspaper articles containing allegations do not necessarily
place citizens on notice when there is no evidence that these
articles were read").
-52-
situation would have been provoked to inquire further; had she done
so, she would have filed a claim earlier.
Mark Wheeler, the youngest son, lives in Texas and did not
see the "60 Minutes" show, although he was aware that his brother
would be appearing on it. He stated by affidavit that he read only
one or two of the articles in the Tulsa press and that he
communicates only infrequently with his family because of tensions
arising from his father's murder. He presents an even closer case
than Pamela because he lived in Texas and the television and press
coverage in the record appeared mostly in either Boston or Tulsa
sources. But we find that he too had a duty to inquire, which if
pursued, would have led him to file his claim earlier. He was aware
of the "60 Minutes" show and, by implication, of national news
coverage of his father's murder. He had access to Tulsa news, as
demonstrated by his reading of at least one or two articles in the
Tulsa newspapers on the subject of his father's death, so if he had
inquired further, he could have learned the necessary facts through
that medium.
The claim of equitable tolling of the two-year limit
fails, to the extent that such a claim is cognizable against the
government at all.8 It is true that the FBI had a long history of
8
Compare Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
94 (1990) (stating that equitable tolling applies in Title VII
suits against the government on the same terms as it would against
a private employer), with United States v. Beggerly, 524 U.S. 38,
49-50 (1998) (holding that equitable tolling does not apply to
actions under the Quiet Title Act, 28 U.S.C. § 2409a, for reasons
-53-
denying that Bulger and Flemmi were informants, that there was any
"special" relationship between the FBI and the two, and then that
any impropriety resulted from the relationship. For purposes of
equitable tolling, however, the government's denials were superseded
when Morris testified in April 1998 in the Salemme hearings that he
and Connolly shielded Bulger and Flemmi from prosecution and that
they may have been responsible for Halloran's death.
III.
The dismissal of the claim against the United States in
the McIntyre case is reversed and the case is remanded for further
proceedings consistent with this opinion. The dismissal in the
Wheeler case is affirmed.
that could also apply to the FTCA).
-54-