Donahue v. United States ( 2011 )

United States Court of Appeals
For the First Circuit
Nos. 09-1950
10-1766
PATRICIA DONAHUE, INDIVIDUALLY AND IN HER CAPACITY
AS ADMINISTRATRIX OF THE ESTATE OF MICHAEL J. DONAHUE;
MICHAEL T. DONAHUE; SHAWN DONAHUE; AND THOMAS DONAHUE,
Plaintiffs, Appellees,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
____________________
Nos. 09-1951
09-1952
THE ESTATE OF EDWARD BRIAN HALLORAN, BY PATRICIA MACARELLI, IN
HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE,
Plaintiff, Appellee/Cross-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Jonathan H. Levy, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom Tony West, Assistant
Attorney General, and Thomas M. Bondy, Attorney, Appellate Staff,
were on brief, for the United States.
Edward T. Hinchey, with whom Nicholas W. Schieffelin and
Sloane & Walsh, were on brief, for Donahue appellees.
William E. Christie, with whom Shaheen & Gordon, P.A. was on
brief, for Estate of Edward Brian Halloran.
February 10, 2011
SELYA, Circuit Judge. These are the latest in a series
of civil cases arising out of the unholy alliance between the
Federal Bureau of Investigation (FBI) and a notorious mobster,
James J. "Whitey" Bulger. In this chapter of the sordid saga, the
estates and heirs of two men killed on Bulger's orders sued the
United States under the Federal Tort Claims Act (FTCA) for leaking
confidential information to Bulger and enabling his reign of
terror. The proceedings below culminated in multi-million-dollar
judgments for the plaintiffs. The principal issue on appeal is
whether the suits were timely filed.
Two different district judges answered this question in
the affirmative. Since then, this court has passed upon the
timeliness issue in a number of similar cases and refined the legal
doctrines that inform the decisional calculus. In fidelity to this
intervening authority, we conclude that the suits were not timely
filed and, therefore, reverse. We do so, however, without
endorsing the FBI's conduct, which we regard as reprehensible.
I. BACKGROUND
The tawdry tale of the FBI's corrupt collaboration with
Bulger and his sidekick, Stephen "the Rifleman" Flemmi, has been
recounted many times. See, e.g., Rakes v. United States, 442 F.3d
7, 11-17 (1st Cir. 2006); Callahan v. United States, 426 F.3d 444,
446-50 (1st Cir. 2005); McIntyre v. United States, 367 F.3d 38, 40-
51 (1st Cir. 2004); see generally United States v. Salemme, 91 F.
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Supp. 2d 141 (D. Mass. 1999), rev'd, United States v. Flemmi, 225
F.3d 78 (1st Cir. 2000). We assume the reader's familiarity with
this compendium of cases and rehearse here only those facts
necessary to bring these appeals into focus.
A. The Axis of Evil.
For decades Whitey Bulger, a key figure in organized
crime circles in Boston, and the leader of a criminal syndicate
known as the Winter Hill Gang, led a double life. Unbeknownst to
his counterparts in crime, he served as a confidential informant
for the FBI. Bulger's underworld position made him privy to
various and sundry activities of rival gangs, including the Mafia
(sometimes known as La Cosa Nostra). The FBI's ardent desire to
bring the Mafia to heel led it to make a Faustian bargain: in
exchange for information about Mafia activities, the FBI would
protect Bulger and Flemmi and "look the other way" as the duo
pursued their own felonious misadventures. This alliance spanned
three decades, lasting from the late 1970s well into the 1990s.
John Connolly, a member of the FBI's organized crime
unit, was tasked to "handle" Bulger and Flemmi. Connolly and
Bulger had grown up in the same South Boston neighborhood. John
Morris, who for most of the relevant period headed the organized
crime unit in the FBI's Boston office, oversaw Connolly.
Over time, Bulger and Flemmi plied their FBI handlers
with assorted gratuities. See, e.g., United States v. Connolly,
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504 F.3d 206, 210 (1st Cir. 2007); Salemme, 91 F. Supp. 2d at 210.
More importantly, they provided a cornucopia of high-quality
information that led to the convictions of several Mafia hierarchs.
These convictions were a gift that kept on giving: they enhanced
the informants' value to the FBI, decimated a powerful rival of the
Winter Hill Gang, and created a vacuum that Bulger and Flemmi
systematically exploited.
Not surprisingly, the FBI coveted Bulger and Flemmi and
considered them "Top Echelon" informants. See Flemmi, 225 F.3d at
81 (describing the FBI's "Top Echelon" informant program). Because
this characterization elevated the status of their handlers,
Connolly and Morris did everything in their power, whether legal or
illegal, to protect their prized informants and keep them happy.
In the bargain, the agents blithely ignored FBI guidelines and
permitted Bulger and Flemmi to carry out a constellation of
criminal activities, ranging from loan-sharking to extortion to
murder.
B. The Murders.
The FBI's protective efforts extended as far as
discouraging other law enforcement agencies from investigating
crimes committed by Bulger and Flemmi; notifying the pair of
planned law enforcement activities; and leaking to them the
identities of persons who came forward with incriminating
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information related to their malefactions. We focus here on one
such informant: Edward "Brian" Halloran.
Halloran was a low-level hoodlum, who functioned
primarily as a cocaine dealer. At times, he worked with the Winter
Hill Gang. A life of crime typically has twists and turns and, in
January of 1982, Halloran was facing a state murder charge.
This development brings front and center a different
murder — the murder of Roger Wheeler. Wheeler's killing stemmed
from a disagreement over a string of Connecticut-based Jai Alai
parlors owned by him and managed by John Callahan (who had ties to
the Winter Hill Gang). Wheeler suspected Callahan of skimming
money, cashiered him, and commissioned an audit. Wheeler was
gunned down shortly thereafter.
Seeking immunity from prosecution, Halloran offered to
share with the FBI information about Wheeler's murder. He
indicated that Bulger, Flemmi, and Callahan had conspired to kill
Wheeler and had offered Halloran the contract. When he declined,
Bulger had Wheeler killed by someone else.
In evaluating Halloran's proposal, his FBI handlers had
asked Morris about Halloran's reliability. Because it was the
FBI's policy to "close" informants who were themselves under
investigation, Morris and Connolly (with whom he consulted) feared
that Halloran's allegations would lead the FBI to terminate its
partnership with Bulger and Flemmi. Rather than run that risk,
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Morris responded (without any foundation in fact) that Halloran was
untrustworthy. On the basis of this mendacity, the FBI rejected
Halloran's offer to turn traitor and denied his request to be put
into its witness protection program.1
Even though Halloran's charges had been defused, word of
his perfidy made its way from Morris to Connolly to Bulger. Morris
and Connolly, who were both experienced agents steeped in the mores
of organized crime, must have realized that disclosure of
Halloran's identity and allegations not only violated FBI
guidelines but also jeopardized Halloran's safety. That jeopardy
materialized: shortly after Connolly leaked Halloran's identity to
Bulger, Bulger and Flemmi hatched the plot to eliminate Halloran.
On May 11, 1982, Halloran asked his neighbor, Michael
Donahue, for a ride home. Donahue, in what later would prove to be
a costly gesture of good will, agreed. As they drove, Bulger's car
pulled alongside and a fusillade of shots followed. Donahue died
immediately; Halloran tried to flee, sustained a myriad of gunshot
wounds, survived for a short period of time, identified James
"Jimmy" Flynn (a Winter Hill associate) as his assailant during the
1
As matters turned out, Halloran's charges later proved to
have a basis in fact. A Winter Hill associate, John Martorano,
subsequently pleaded guilty to Wheeler's murder. See McIntyre, 367
F.3d at 50. Several months after Wheeler's execution, Martorano,
acting on Bulger's orders, also murdered Callahan. See Callahan,
426 F.3d at 449.
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ambulance ride, and was pronounced dead upon arrival at a local
hospital.
The murders of Halloran and Donahue, along with Bulger's
possible role in the Wheeler and Callahan slayings, presented the
FBI with a dilemma. FBI offices outside of Boston, as well as
state law enforcement agencies, were investigating Bulger's and
Flemmi's potential involvement in the murders of Wheeler, Halloran,
Donahue, and Callahan (which had long been thought to be related).
If given credence, Halloran's allegations would have shed light on
Bulger's participation and, quite possibly, would have led the FBI
to "close" him as an informant.
FBI agents from the Boston office's organized crime unit,
including Connolly and Morris, met to discuss the situation. They
decided to retain Bulger and Flemmi as informants unless and until
they received "substantial information" implicating the men in the
murders.2 Then, in a cynical twist, the agents took an active role
in preventing any such "substantial information" from surfacing.
Their actions included hindering attempts by other FBI offices to
solve the Wheeler and Callahan murders; furnishing information
about pending investigations to Bulger and Flemmi; failing to index
documents summarizing Halloran's charges; and prohibiting
2
Although Flemmi was briefly "closed" as an informant, he
continued to furnish information to Connolly and Connolly continued
to leak confidential information to him, including the name of John
McIntyre, another confidential informant whom Bulger and his
henchmen subsequently murdered. See McIntyre, 367 F.3d at 46-47.
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interviews of Bulger and Flemmi. They also made certain that no
information about Bulger's role in Halloran's murder was revealed
to the Massachusetts authorities.
In 1985, the Suffolk County (Mass.) District Attorney
prosecuted Flynn for the Halloran and Donahue murders. Flynn
proclaimed his innocence and went to trial — a trial that members
of the Donahue family attended. The jury acquitted Flynn and the
murders remained unsolved for the next decade.
C. The Revelations.
Bulger's cozy arrangement with the FBI began to unravel
in 1992. The United States Attorney for the District of
Massachusetts empaneled a grand jury that eventually handed up
indictments against numerous gangland crime figures, including
Bulger, Flemmi, and Francis P. "Cadillac Frank" Salemme (the
reputed "boss" of the Patriarca crime family). Although Connolly
was no longer working for the FBI at that point, he found out about
the indictments before they were unsealed and forewarned Bulger and
Flemmi. Bulger fled and remains a fugitive; Flemmi was not as
quick on his feet; the authorities arrested him in January of 1995.
In the judicial proceedings that ensued, Flemmi made a
claim of immunity from prosecution based on his role as an FBI
informant. Along this line, he contended that the FBI authorized
him to engage in various crimes charged in the indictment. The
district court decided to take evidence on Flemmi's motion. These
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proceedings (which we shall call "the Salemme hearings") started in
January of 1998, lasted almost a year, and produced over 17,000
pages of transcripts.
As part of the Salemme hearings, Morris testified under
a grant of immunity on April 22, 1998. His testimony brought the
FBI's clandestine relationship with Bulger and Flemmi into the
public domain. He confirmed that both men were regarded by the FBI
as Top Echelon informants. In connection with the Halloran and
Donahue murders, he admitted that he falsely told other FBI agents
that Halloran was an unreliable witness, thus ensuring that
Halloran's allegations would be discounted and that Halloran would
be denied entry into the witness protection program. He also told
Connolly about Halloran's offer to incriminate Bulger,
notwithstanding his knowledge that this leak would endanger
Halloran.
Morris further testified that Connolly had leaked
Halloran's identity to Bulger and that he (Morris) suspected that
Bulger and Flemmi were responsible for Halloran's demise. In what
can best be described as locking the barn door once the horse has
galloped away, Morris stated that, after the double murder of
Halloran and Donahue, he told Connolly that he "did not want
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another Halloran" the next time that the FBI tipped off Bulger and
Flemmi about an informant's identity.3
Three additional pieces of information that came to light
during the Salemme hearings are of particular pertinence for
present purposes. First, on May 27, 1998, former federal
prosecutor William Weld recounted a conversation that he had with
Robert Fitzpatrick a few days prior to Halloran's assassination.
At the time of this exchange, Fitzpatrick (second in command of the
FBI's Boston office) told Weld that Halloran was in grave danger.
Fitzpatrick recounted that he "would not want to be standing next
to this guy [Halloran]."
Second, in August of 1998, testimony in the Salemme
hearings revealed that, in 1988, an incarcerated drug dealer named
Joseph Murray told FBI agents that Bulger was responsible for
Halloran's murder and that someone in the FBI's Boston office was
leaking confidential information to Bulger. Murray's account was
neither shared with the agents who were investigating Halloran's
murder nor indexed in the FBI's data bank (thus making its
retrieval difficult, if not impossible). Third — and perhaps most
telling — Flemmi himself made statements to the district court
3
Although Connolly publicly decried Morris's allegations, he
never testified at the hearings, choosing instead to invoke his
Fifth Amendment right against self-incrimination. Connolly was
later convicted on a gallimaufry of charges stemming from his
corrupt relationship with Bulger and Flemmi, including charges
arising out of Halloran's murder. See United States v. Connolly,
341 F.3d 16, 20-21, 25 n.4 (1st Cir. 2003).
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indicating that he had been tipped off by the FBI about Halloran's
overtures, his identity, and his role as a potential accuser.
These statements were made in a chambers conference that occurred
sometime before September 1, 1998 (the date on which the district
court revealed them in the course of a ruling).
Word of the corrupt relationship between the FBI and the
two notorious mobsters made news. The appendix to this opinion
presents a chronological sampling of the most relevant newspaper
articles.
As early as 1997, journalists were speculating about
Halloran's involvement with the Wheeler murder and Bulger's status
as a snitch. See, e.g., Shelley Murphy, In '80s FBI Saw Bulger as
Both Informant and Murder Suspect, Bos. Globe, Oct. 3, 1997, at A1.
For example, a front-page article in the Boston Herald suggested
that the FBI continued to use Bulger and Flemmi as informants even
though they were suspects in Halloran's execution. See Ralph
Ranalli, FBI Used Whitey, Despite His Ties to 3 Murders, Bos.
Herald, July 1, 1997, at 1.
Morris's sensational testimony led to an avalanche of
news stories. His admissions that he had told Connolly about
Halloran, that Connolly had leaked Halloran's identity to Bulger,
and that he suspected Bulger of killing Halloran were widely
reported in both the local and national press. See, e.g., Peter
Gelzinis, 'Good' Guys Weren't Good to Halloran, Bos. Herald, Apr.
- 12 -
23, 1998, at 6; Shelley Murphy, Worst Fears Came True as Informant
Lost Race for His Life, Bos. Globe, Apr. 23, 1998, at B10. The two
most widely circulated Boston-area newspapers — the Boston Globe
and the Boston Herald — covered these disclosures in laborious
detail, often with gripping headlines and prominent placement.
See, e.g., Ralph Ranalli, Ex-FBI Honcho: Agent Tipped Mobsters on
Stoolie, Bos. Herald, Apr. 23, 1998, at 1; Patricia Nealon, Ex-
Agent Says He Told of Informer[:] Fringe Gangster Turned Up Dead,
Bos. Globe, Apr. 23, 1998, at B1. The intense publicity continued
for several months, frequently reiterating Morris's testimony.
Some articles included Halloran's photograph. See, e.g., Shelley
Murphy, Cases Disappear as FBI Looks Away, Bos. Globe, July 22,
1998, at A1; Ralph Ranalli, Whitey Taunted Fed About Slain Stoolie,
Bos. Herald, May 16, 1998, at 15.
Subsequent developments in the Salemme hearings were
thoroughly reported by the Boston media. Weld's suggestion that
the FBI knew about the leak of Halloran's identity before the
murder generated front-page coverage. See, e.g., Ralph Ranalli,
FBI's Mafia Bugs in Peril — Key Wiretap Requests May Have Contained
False Info, Weld Testifies, Bos. Herald, May 28, 1998, at 1.
Similarly, Murray's un-investigated allegations were reported.
See, e.g., Patricia Nealon, Witness: FBI Let Languish a Tip Tying
Bulger to Murder, Bos. Globe, June 4, 1998, at F8; Ralph Ranalli,
FBI Was Allegedly Told of Bulger Role in Murder, Bos. Herald, June
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4, 1998, at 4. Flemmi's acknowledgment that he had been tipped
about Halloran's perfidy was likewise grist for the journalistic
mills. See, e.g., Patricia Nealon, Mob Trial Judge Orders Flemmi
to Answer Some Questions, Bos. Globe, Sept. 2, 1998, at B2; Ralph
Ranalli, Flemmi Admits Tip-Off to Informant's Identity, Bos.
Herald, Sept. 2, 1998, at 6. Along the way, these press dispatches
reiterated time and again the corrupt Bulger-FBI linkage and its
tragic consequences for Halloran and Donahue. See, e.g., Patricia
Nealon, Ground Rules for Flemmi Grilling Eyed, Bos. Globe, June 25,
1998, at B4; Ralph Ranalli, Questions Arise Over FBI Agent's
Knowledge of Slaying, Bos. Herald, Aug. 5, 1998, at 1.
Given the astonishing nature of Morris's allegations, it
is unsurprising that media outlets other than the Boston newspapers
covered this matter. For example, CNN's broadcast "CNN Impact"
reported on March 15, 1998, "that Bulger and Flemmi were FBI
informants and that possible connections existed between Bulger and
Flemmi and the murders of Wheeler, Halloran, and Callahan."
Callahan, 426 F.3d at 448. An episode of the news program "60
Minutes," which CBS aired on May 10, 1998, described the FBI's
complicity in the murders. Additionally, the telecast displayed
photographs of the Halloran crime scene and stated that detectives
investigating the Wheeler, Halloran, and Callahan murders "believe
all three murders remain unsolved because Bulger and Flemmi were
protected by the FBI." And although the government has not
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supplied a reliable inventory of local television and radio
broadcasts, it would strain credulity to think that local stations
would not have feasted upon such tasty fare.
The Salemme hearings concluded in October of 1998. The
pièce de résistance was a comprehensive opinion, released by Judge
Wolf on September 15, 1999. See Salemme, 91 F. Supp. 2d 141. The
opinion itself was covered in depth by the local press, which
rehashed the underlying facts in detail. The plaintiffs concede
that they learned about this opinion at or near the time when it
was issued.
D. Travel of the Cases.
Halloran's estate filed an administrative claim against,
inter alia, the FBI on September 25, 2000. Patricia Donahue,
acting both individually as the decedent's wife and as
administratrix of his estate, along with her three sons, submitted
their administrative claim on March 29, 2001. The government
failed to satisfy any of the claims and, after the passage of each
respective six-month period, see 28 U.S.C. § 2675(a), the
plaintiffs sued separately.
The United States was substituted as the party defendant
in each action. See id. § 2679. The government moved to dismiss
the Donahue case, asserting that the plaintiffs' claims were barred
by the FTCA's two-year limitations period. The government averred
that the causes of action accrued in April of 1998, when Morris
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testified at the Salemme hearings. The district court, operating
without the benefit of a series of opinions subsequently handed
down by this court, see, e.g., Patterson v. United States, 451 F.3d
268, 269 (1st Cir. 2006); Rakes, 442 F.3d at 11; Callahan, 426 F.3d
at 445; Cascone v. United States, 370 F.3d 95, 96 (1st Cir. 2004);
McIntyre, 367 F.3d at 40; Skwira v. United States, 344 F.3d 64, 67
(1st Cir. 2003), denied the motion. The court relied heavily on
two factors: the "considerable span of time" that passed between
the murders and the Salemme hearings, and the fact that Flynn was
indicted and tried for the homicides. Donahue v. FBI, 204 F. Supp.
2d 169, 177-78 (D. Mass. 2002) (Lindsay, J.).
The government's motion to dismiss in Halloran suffered
a similar fate. Relying on Donahue, a different district judge
denied the motion. Estate of Halloran v. United States, No. 01-
11346 (D. Mass. June 25, 2002) (Gertner, J.) (unpublished order).
In due course, the actions were consolidated before Judge
Lindsay, who granted partial summary judgment for the plaintiffs
with respect to liability. Judge Lindsay held a bench trial on the
issue of damages, but passed away before resolving the matter. The
cases were reassigned to Judge Young, who awarded the Halloran
estate $2,061,000 and the Donahue family $6,335,100. These timely
appeals followed. In them, the government takes aim at the denial
of its motions to dismiss. The Halloran estate cross-appeals from
the award of damages, deeming it too low.
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II. ANALYSIS
For ease in exposition, we divide our analysis into six
segments. We start with an overview of the FTCA's claim-filing
provisions.
A. The FTCA.
Writ large, the doctrine of sovereign immunity bars the
maintenance of any tort claim against the federal government. FDIC
v. Meyer, 510 U.S. 471, 475 (1994); Román-Cancel v. United States,
613 F.3d 37, 41 (1st Cir. 2010). Congress created a limited waiver
of this immunity when it enacted the FTCA, 28 U.S.C. §§ 1346(b),
2671-2680, which allows suits against the United States for
personal injuries, death, or property damage "caused by the
negligent or wrongful act . . . of any employee of the Government
while acting within the scope of his office or employment." Id.§ 1346(b)(1). As part and parcel of this waiver, the FTCA
establishes firm filing requirements for both administrative claims
and lawsuits. Courts must faithfully enforce these requirements,
neither "extend[ing] the waiver beyond that which Congress intended
[nor assuming] authority to narrow the waiver." United States v.
Kubrick, 444 U.S. 111, 118 (1979).
An FTCA claim must first be presented to the affected
agency. 28 U.S.C. § 2675(a). This must be done promptly: the FTCA
builds in a statute of limitations forever barring any "tort claim
against the United States . . . unless it is presented in writing
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to the appropriate Federal agency within two years after such claim
accrues." Id. § 2401(b). These appeals hinge on the temporal
parameters of this claim-filing requirement.
As said, the Halloran estate filed its administrative
claim on September 25, 2000. The Donahues followed suit on March
29, 2001. Thus, if the Hallorans' claim accrued prior to September
25, 1998 (that is, more than two years prior to the claim-filing
date), the action founded upon it is time-barred. For the
Donahues, the critical accrual date is March 29, 1999. We frame
the dispositive question as whether the plaintiffs' claims accrued
earlier than September 25, 1998. After all, the relevant facts for
calculating the accrual date are nearly identical for both sets of
claimants, so if the first-filed (Halloran) claim is time-barred,
the later-filed (Donahue) claim is time-barred as well.
B. Standard of Review.
Before we attempt to determine the precise moment at
which the plaintiffs' claims accrued, we acknowledge the applicable
standard of review. The government moved for dismissal under
Federal Rule of Civil Procedure 12(b)(1). The district court
examined a variety of raw facts (mostly uncontroverted) and
concluded that, as a matter of law, "it was not unreasonable for
the plaintiffs to have failed to discover the factual basis for
their claims until after March 30, 1999." Donahue, 204 F. Supp. 2d
at 177. Although appellate review of Rule 12(b)(1) dismissals
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sometimes requires deference to the trial court, see, e.g.,
Valentín v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001),
these appeals involve only the objective reasonableness of the
plaintiffs' failure to discern at an earlier time both their injury
and its likely cause. That is a question of law. See Skwira, 344
F.3d at 72 (explaining that the ultimate conclusion regarding
timeliness of FTCA claims presents a question of law).
Consequently, we review the orders of dismissal de novo. See
Rakes, 442 F.3d at 20; Callahan, 426 F.3d at 451.
C. The Discovery Rule.
An FTCA claim generally accrues at the time of the
injury. McIntyre, 367 F.3d at 51; González v. United States, 284
F.3d 281, 288 (1st Cir. 2002). In certain settings, however,
either the injury itself or its cause is not readily apparent. In
Kubrick, the Supreme Court fashioned a narrow exception to address
such circumstances. The Court held, in the medical malpractice
context, that under this "discovery rule" a claim accrues when a
plaintiff knows (or is chargeable with knowledge) of both the
existence and the cause of her injury. 444 U.S. at 122. The rule
protects "plaintiffs who are blamelessly unaware of their claim
because the injury has not yet manifested itself or because the
facts establishing a causal link between the injury and [the
tortious act] are in the control of the tortfeasor or otherwise not
evident." Díaz v. United States, 165 F.3d 1337, 1339 (11th Cir.
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1999); see González, 284 F.3d at 289 ("Once a plaintiff knows of
the injury and its probable cause, [she] bears the responsibility
of inquiring . . . about whether [she] was wronged and should take
legal action.").
We have applied the discovery rule in other circumstances
in which the injury, its cause, or both are latent. See, e.g.,
Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992).
Other courts of appeals have done the same. See, e.g., Plaza
Speedway Inc. v. United States, 311 F.3d 1262, 1270-71 (10th Cir.
2002); Garza v. U.S. Bureau of Prisons, 284 F.3d 930, 934-35 (8th
Cir. 2002); Díaz, 165 F.3d at 1339; Kronisch v. United States, 150
F.3d 112, 121 (2d Cir. 1998).
Although the discovery rule delays accrual when it
applies, that delay is not indefinite. Accrual starts when a
plaintiff knows or reasonably should have known the factual basis
for his claim; that is, the existence of his injury and its cause.
Patterson, 451 F.3d at 270. This is a two-step progression. Mere
knowledge of the injury is not enough. A plaintiff also must
understand the "causal connection between the government and her
injury." Callahan, 426 F.3d at 451 (citation and internal
quotation marks omitted); accord Attallah, 955 F.2d at 780. Once
a plaintiff possesses these critical facts, he "is no longer at the
mercy of the [putative defendant]." Kubrick, 444 U.S. at 122. At
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that juncture, he must act expeditiously or risk abdicating any
legal remedy. See id. at 123.
Actual knowledge of the injury and its cause is not
necessary for a claim to accrue. Callahan, 426 F.3d at 451;
Skwira, 344 F.3d at 78. A plaintiff who is unaware of the factual
basis for his claim may be charged with such knowledge based on
information that he reasonably should have known or discovered in
the exercise of due diligence. McIntyre, 367 F.3d at 52. The
frame of reference for evaluating what a reasonable plaintiff
should have known or discovered is an objective one. Cascone, 370
F.3d at 104; McIntyre, 367 F.3d at 42.
This approach holds the balance steady and true between
an FTCA plaintiff's right to redress and the government's
legitimate interest in defeating stale claims. John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 133 (2008); Kubrick, 444
U.S. at 117. It also preserves the timetable created by section
2401, which Congress designed to "ensur[e] that the government is
promptly presented with a claim while the evidence is still fresh."
Patterson, 451 F.3d at 270. This allows the sovereign to "rest
easy after a period of time, knowing that suits for long-past
wrongs are barred." Rakes, 442 F.3d at 20; see Skwira, 344 F.3d at
84 (Boudin, C.J., concurring) (noting that statutes of limitation
"are framed to work mechanically[, banishing any] arguments about
whether there was prejudice from delay").
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It follows that the government is entitled to expect that
certain facts and data will become known to a reasonable person
through "the channels of communication that run among people
connected through ties of neighborhood, community, friendship, and
family." Rakes, 442 F.3d at 23. When such information achieves a
level of local notoriety through, say, its headline-grabbing nature
or its wide circulation, knowledge of it can fairly be ascribed to
prospective plaintiffs. Id. at 20.
FTCA plaintiffs can be charged with knowing two discrete
sets of data: (i) generally available information about the
relevant facts and (ii) the likely results of any further inquiry
that a reasonable plaintiff, knowing these facts, would undertake.
Id.; Callahan, 426 F.3d at 451. These two components are
interrelated: if generally available information touching upon a
plaintiff's claim is sufficient to cause a reasonable person in the
plaintiff's position to inquire further, the results that probably
would have come to light through such an investigation must be
factored into the accrual calculus. See McIntyre, 367 F.3d at 52.
Put another way, the knowledge of facts comprising the first
component is imputed to the plaintiffs along with whatever other
residuum of knowledge would be dredged up through an exercise of
the duty to undertake further inquiry. See Skwira, 344 F.3d at 84(Boudin, C.J., concurring). Thus, when either the generally
available information or the likely outcome of a reasonably
- 22 -
diligent investigation that follows inquiry notice is sufficient to
ground a reasonable belief that the plaintiff has been injured and
that there is a causal nexus between the injury and some
governmental conduct, accrual begins. McIntyre, 367 F.3d at 52.
D. The Cause of Action.
We next examine what effect, if any, the plaintiffs'
theory of liability may have on the accrual date.
We begin with bedrock: cases cannot be analyzed in the
abstract. A distinct theory of liability helps to explain the
relationship between the government and the injury and to screen
out facts that are impertinent to the accrual analysis. See, e.g.,
McIntyre, 367 F.3d at 57 (treating differently two Bulger-related
civil cases because they were based on "fundamentally different
legal theor[ies]").
Two theories have sprouted in FTCA cases growing out of
Bulger's and Flemmi's corrupt relationship with the FBI. The
"emboldening" theory posits that the FBI placed a protective shield
around the two mobsters, in effect giving them carte blanche to
commit crimes at will. See, e.g., Rakes, 442 F.3d at 20. In
contrast, the "leak" theory focuses on the wrongful disclosure of
confidences, such as informants' identities, to the mobsters. See,
e.g., McIntyre, 367 F.3d at 54.
Although a plaintiff may advance multiple theories of
causation in a single case, the only relevant theory for accrual
- 23 -
purposes (at least where the two theories grow out of a common
nucleus of operative fact) is the one that generates the earlier
accrual date. See Callahan, 426 F.3d at 452. The government
exhorts us to view the date of accrual through the prism of the
emboldening theory, which generates an earlier accrual date. See,
e.g., id. In contrast, the plaintiffs argue for viewing accrual
through the prism of the leak theory.
In Rakes, we clarified the appropriate mode of analysis
for choosing among multiple theories of causation in this kind of
case. We cautioned that none of our earlier decisions "should be
viewed as setting forth a flat rule." 442 F.3d at 21. Rather, the
accrual analysis is case-specific and turns on the circumstances of
the particular case. Id.We need not decide which of the two theories is the
proper touchstone for measuring the accrual date. For purposes of
this case, we assume, favorably to the plaintiffs, that the later-
accruing leak theory controls. Even on that questionable
assumption, the plaintiffs' claims are time-barred because those
claims accrued no later than September 2, 1998 — more than two
years prior to the filing of the earliest claim with the FBI.
We add that, for purposes of accrual, we treat the
Halloran and Donahue claims as one and the same. This is
consistent with the manner in which the plaintiffs have presented
their arguments on appeal. It is also consistent with the facts:
- 24 -
Halloran and Donahue were together during Bulger's murderous
attack; and ever since that fateful day their deaths have become
inextricably intertwined.
E. The Accrual Date.
We hold that the plaintiffs' claims accrued no later than
September 2, 1998. We premise this holding on information that was
generally available at the time of the Salemme hearings. Because
in this case the generally available information was sufficient to
trigger the accrual of the claim on that date, we need not examine
the alternate component of the accrual calculus — the information
that further inquiry would have revealed.
As said, a claim accrues when the plaintiff knew or
reasonably should have known of both his injury and its cause.
Here, the murders were open and obvious, so the plaintiffs knew of
their injury at that time. Consequently, we must train the lens of
our inquiry on when the plaintiffs acquired information about the
government's role in causing the injury. Although Boston-area
newspapers speculated as early as 1996 that Bulger and Flemmi had
killed Halloran and that the FBI was complicit, the missing piece
of the puzzle was not brought squarely to the forefront of public
consciousness until April 22, 1998. Morris's testimony that day
was widely circulated in the avalanche of publicity that followed.
As we suggested in an earlier case, that testimony and the
- 25 -
attendant publicity spelled out in exquisite detail the facts
needed for accrual. See Callahan, 426 F.3d at 453.
Morris unequivocally stated that he told Connolly of
Halloran's cooperation with the FBI. He also confirmed that
Connolly "had informed Bulger and Flemmi that Halloran was
implicating them in Wheeler's murder." Id. Morris further
acknowledged that, as a result of this leak, "he believed that
Bulger and Flemmi may have killed Halloran." Id.That conclusion was sufficiently apparent that Morris
expressed concern that "he had sent Halloran to his death."
McIntyre, 367 F.3d at 58 (noting Morris's testimony).
This explosive testimony was extensively reported by both
local and national media. It was prominently featured in both of
the major Boston newspapers. These articles repeatedly mentioned
Halloran by name, usually within their lead paragraphs. One story
even included his name in its headlines. They tied Halloran's and
Donahue's deaths directly to the FBI's misconduct. By way of
illustration, we quote the first two paragraphs of one such exposé:
In his most explosive testimony, the former
head of the organized crime squad of the
Boston FBI office said yesterday that he told
the agent who handled gangster/informants
[Bulger and Flemmi] that another informant had
implicated them in the [Wheeler] murder . . .
— fully expecting the agent would pass the
information along to his two prized snitches.
The informant, fringe gangster Edward "Brian"
Halloran, soon turned up dead. . . . Morris
- 26 -
said he suspected that Bulger and Flemmi were
involved in Halloran's murder.
Nealon, Ex-Agent Says He Told of Informer[:] Fringe Gangster Turned
Up Dead, supra, at B1.
News coverage about the Halloran-Bulger-FBI murder
triangle persisted after Morris testified. Newspapers continued to
report additional tidbits that surfaced during the balance of the
Salemme hearings. These revelations included Weld's testimony,
Murray's allegations, and Flemmi's confession (which was made
public by Judge Wolf on September 1, 1998, and widely publicized
the next day).
The import of these disclosures is unmistakable. Under
the discovery rule as it operates in FTCA cases, irrefutable proof
of a combination of wrongful conduct and government responsibility
for that conduct is not essential. Skwira, 344 F.3d at 85 (Boudin,
C.J., concurring). It suffices if a prospective plaintiff has
enough information to lead a reasonable person in his position to
seek advice about a possible claim against the government.
Kubrick, 444 U.S. at 123; Callahan, 426 F.3d at 451. Morris's
testimony was given under oath and was based upon personal
knowledge. Key aspects of it were corroborated by independent
accounts, most notably by one of the alleged murderers. The
picture painted during the Salemme hearings was widely-reported.
With this information available to them, the plaintiffs had
considerably more than a mere hunch, hint, suspicion, or rumor
- 27 -
about what had transpired. The information called into question
the government's responsibility for the Halloran and Donahue
murders.
To be sure, there is no direct proof that the plaintiffs
had assimilated this information. But whether the plaintiffs
actually knew the information is not the issue. What counts is
that the body of work was generally available to them no later than
September 2, 1998. Accordingly, they are charged with knowing this
information on or before that date. On that basis, we find that
the combination of Morris's detailed testimony, the other
revelations that popped up during the Salemme hearings, and the
widespread publicity that accompanied these developments form a
solid foundation for charging the plaintiffs with knowledge of the
cause of their injury no later than September 2, 1998. At that
time, the plaintiffs reasonably should have known of the FBI's
possible connection to the murders. They thus had sufficient
factual information to start the running of the accrual period.
The plaintiffs resist this conclusion in various ways.
First, they suggest that the length of time between the murders and
the avalanche of generally available information about the cause of
the murders — approximately 16 years — justifies a more lenient
application of the discovery rule. We do not agree.
In McIntyre, we dealt with a similar confluence of
events, playing out over a comparably protracted interval. That
- 28 -
case involved, inter alia, claims stemming from Wheeler's murder.
We concluded that news articles about Morris's testimony "should
have caught the Wheelers' attention, because they specifically
referenced Roger Wheeler's murder." 367 F.3d at 58. We deemed
this extensive reportage sufficient to trigger accrual for the
Wheeler family's claims. Id. at 61. Our holding today mirrors
that holding.4
That ends this aspect of the matter. The widespread
publicity given to the Halloran and Donahue murders was enough to
trigger accrual, notwithstanding the 16-year gap. See Patterson,
451 F.3d at 271 (finding "widespread publicity" sufficient to
overcome 35-year gap).
Second, the plaintiffs insist that the government's
repeated attempts to cover up (or at least minimize) its role in
Bulger's escapades should militate against accrual in this case.
But the government's uncooperative attitude hardly could have shut
the spigot on the flow of information; the facts were emerging
despite the FBI's recalcitrance. In all events, one need not have
irrefutable proof of the government's accountability in order to
4
The same discussion also dealt with claims arising out of
the murder of John McIntyre, an FBI informant. The McIntyre
plaintiffs' claim was different from that of the Wheeler
plaintiffs. Morris's statements never mentioned any leak of
McIntyre's identity nor did they offer any clue that McIntyre's
death stemmed from Bulger's and Flemmi's corrupt relationship with
the FBI. See McIntyre, 367 F.3d at 56. The instant case fits the
Wheeler model, not the McIntyre model.
- 29 -
file an administrative claim; it is enough to have "possession of
sufficient information for the agency to investigate the claim[]."
Skwira, 344 F.3d at 81 (citation and internal quotation marks
omitted). Filing such a claim puts at most a modest burden on
plaintiffs, who can continue seeking additional corroborative
evidence afterward. Id. at 81-82 & n.17 (observing that plaintiffs
could "ask[] the agency to hold the claim in abeyance pending the
outcome" of ongoing investigations).
The Donahue plaintiffs next advance an argument unique to
them. They asseverate that their relocation from Dorchester (a
neighborhood in Boston) to Randolph (a Boston suburb) interfered
with their exposure to the relevant facts. But the two communities
are situated in close proximity to one another, and both are served
by the main-line print and electronic Boston media. Under those
circumstances, a distance of roughly ten miles is not enough to
obstruct the channels of communication that are likely to inform
people connected through ties of locale, friendship, and family.
See Rakes, 442 F.3d at 23; cf. Patterson, 451 F.3d at 271(concluding that plaintiff's residence in Georgia was "insufficient
to vitiate a finding that she should have learned of the news" of
the FBI's involvement in decedent's Boston-based murder). The
murder of a husband or father is a traumatic event of immense
proportions, likely to raise a person's antennae when news touching
upon that murder surfaces.
- 30 -
At any rate, even infrequent communication with family,
friends, and former neighbors may give a plaintiff enough knowledge
to trigger accrual. See McIntyre, 367 F.3d at 60-61. The Donahue
plaintiffs far outstripped that minimum level of communication.
Despite their move, they remained comfortably within the
circumference of widespread news coverage. Thus, their relocation
to a nearby town cannot mitigate the accrual of their claim.
The Halloran plaintiffs also make a separate argument.
They suggest that Bulger and Flemmi tried to kill Halloran before
he began cooperating with the FBI and that this timing should
militate against accrual. But this argument boomerangs: if
Halloran was killed for a reason other than his informant status,
the plaintiffs' claim morphs into the emboldening theory — and,
thus, would have an earlier accrual date. See McIntyre, 367 F.3d
at 58.
All the plaintiffs also place weight on Halloran's dying
declaration that Flynn was the murderer. They buttress that
declaration by reference to Flynn's subsequent prosecution. They
maintain that their reasonable belief that Flynn was the culprit
justified their failure to conduct a diligent investigation after
learning of Morris's testimony.5
5
The dissent trains the lens of its inquiry on when the
plaintiffs had reason to know the identity of the person
responsible for the murders. Dissent Op. at 42-45. But this focus
misses the mark — the relevant inquiry is when the plaintiffs had
reason to know of the FBI's leak of Halloran's identity to Bulger
- 31 -
This argument does not withstand scrutiny. The
plaintiffs' professed belief may have been reasonable initially,
but that rationale was severely undercut, if not wholly extirpated,
by Flynn's acquittal, Morris's testimony, Flemmi's admission, and
the other new information that emerged in 1998. See Patterson, 451
F.3d at 269, 271. At this juncture, Flynn's acquittal took on
added significance.
Patterson bears an eerie resemblance to this case.
There, FBI agents knew beforehand of an informants' plans to
slaughter another person. Id. at 269. Yet, they took no steps
either to forestall the murder or to head off an accusation against
two innocent men. Id. Despite a wrongful conviction, we found
that an FTCA claim proffered on behalf of the murder victim began
to accrue based on the "breaking news" about FBI corruption. Id.
at 271. The instant plaintiffs lack even the evanescent firmness
of a wrongful conviction and, thus, cannot rely on the specter of
Flynn to justify their delay. Cf. Skwira, 344 F.3d at 80(concluding that claim accrued when, among other factors,
government asked family's permission to exhume body and family was
told that the listed cause of death was incorrect).
Finally, all the plaintiffs assert that they were not
chargeable with knowledge of the cause of the injury until the
and Flemmi. After all, this is a suit which alleges wrongful
disclosure, not wrongful death.
- 32 -
publication of Judge Wolf's opinion in Salemme. Although this
opinion wrapped all the pieces of the puzzle in a neat package, the
pieces themselves were readily available at an earlier date. The
plaintiffs fail to explain why there should be any distinction
between the well-publicized information that surfaced during the
Salemme hearings and its recapitulation in the district court's
opinion. While the latter was a more orderly and comprehensive
presentation, the facts relevant to the government's responsibility
for the Halloran and Donahue murders were identical in both.
F. Equitable Tolling.
In a last-ditch effort to salvage a favorable judgment,
Halloran's estate argues that the accrual period should be
equitably tolled because of the government's fraudulent concealment
of information about the corrupt relationship and the leak. There
is some authority for such an approach: in Rakes, we noted, albeit
in dictum, that equitable tolling based on fraudulent concealment
is feasible in an FTCA case. 442 F.3d at 26. Nevertheless, that
channel is not navigable here.
Due diligence is a prerequisite for equitable tolling.
See Beltre-Veloz v. Mukasey, 533 F.3d 7, 11 (1st Cir. 2008) ("It
cannot be gainsaid that due diligence is a sine qua non for
equitable tolling."); see also Irwin v. Dep't of Veterans Affairs,
498 U.S. 89, 96 (1990). Here, the plaintiffs' argument for a later
accrual date under the discovery rule has been rejected because,
- 33 -
among other things, having become aware of the FBI's role in the
deaths of their loved ones, they nevertheless failed to exercise
due diligence in investigating the possibility of a claim. See
supra, Part II(E). In such circumstances, the plaintiffs cannot
successfully argue that the statute of limitations should be
equitably tolled on the ground of fraudulent concealment. Rakes,
442 F.3d at 26-27. Put another way, "a plaintiff [who] could have
turned up needed information through investigation, but has failed
to exercise the requisite diligence, . . . will not be able to
avail herself of [the] doctrine, and will lose her claim." Id. at
27.
This principle is controlling here. While we do not
condone the government's history of stonewalling — for a long time
it staunchly denied any relationship between Bulger, Flemmi, and
the FBI, and concealed evidence concerning Halloran's and Donahue's
murders — the plaintiffs' failure to conduct a reasonably diligent
investigation after learning, actually or constructively, of the
information disclosed in the Salemme hearings defenestrates the
claim of equitable tolling. As we said in connection with a
similar claim in McIntyre, 367 F.3d at 61, "the government's
denials were superseded when Morris testified in April 1998 in the
Salemme hearings that he and Connolly . . . may have been
responsible for Halloran's death."
- 34 -
III. CONCLUSION
We are not without sympathy for the plaintiffs' plight.
The murders robbed both the Donahue and Halloran families of loved
ones, and their losses were exacerbated by years of government
evasion. But statutes of limitation are designed to operate
mechanically. They aspire to bring a sense of finality to events
that occurred in the distant past and to afford defendants the
comfort of knowing that stale claims cannot be pursued. See Rakes,
442 F.3d at 20. Their mechanical operation may at times have
seemingly harsh consequences, but the amelioration of such
consequences is a matter for Congress rather than for the courts.
See Skwira, 344 F.3d at 86 (Boudin, C.J., concurring); cf. Tasker
v. DHL Ret. Sav. Plan, 621 F.3d 34, 43 (1st Cir. 2010) (observing
that courts are not free to decide cases on generalized notions of
fairness but, where statutes are in play, must follow the path
demarcated by the legislature).
We add, moreover, that courts must apply legal rules
even-handedly. The fiasco brought about by Bulger's and Flemmi's
seduction of the FBI has produced an endless stream of civil
litigation, and this court, in a series of opinions, has carefully
crafted a paradigm for dealing with the legal problems caused by
the prolonged delay in the disclosure of that corrupt relationship.
See, e.g., Patterson, 451 F.3d at 270-73; Rakes, 442 F.3d at 22-27;
Callahan, 426 F.3d at 451-55; McIntyre, 367 F.3d at 51-61. We must
- 35 -
apply the same paradigm here — and doing so requires us to draw a
temporal line that bars the maintenance of these actions.
We need go no further. For the reasons elucidated above,
we conclude that the plaintiffs' claims against the United States
accrued no later than September 2, 1998. The claims are,
therefore, time-barred. Accordingly, we reverse the district
court's denial of the government's motions to dismiss, and remand
with instructions to vacate the judgments previously entered and to
enter judgment in favor of the United States in each case. Given
this disposition, we dismiss the cross-appeal (No. 09-1952) as
moot. All parties shall bear their own costs.
So Ordered.
- 36 -
Appendix
The following is a non-exhaustive chronological listing
of newspaper articles which detailed the FBI/Bulger relationship in
connection with Halloran's and Donahue's murders. These articles
appeared in the Boston media market beginning in July, 1997, and
continued through September 2, 1998:
Ralph Ranalli, FBI Used Whitey, Despite His Ties to 3 Murders, Bos.
Herald, July 7, 1997, at 1.
Shelley Murphy, In '80s, FBI Saw Bulger as Both Informant and
Murder Suspect, Bos. Globe, Oct. 3, 1997, at A1.
Ralph Ranalli, Police Reopen Mob Murder Probe; Miami Cops Eye
Whitey Link in Slaying of Bay State Man; Hub Hearing May Help Crack
Fla. Murder Case, Bos. Herald, Dec. 15, 1997, at 1.
Ralph Ranalli, FBI Suspected Leaks to Mob, Bos. Herald, Dec. 15,
1997, at 4.
Shelley Murphy, Witness Says FBI Kept Bulger as Informant Despite
Suspicions, Bos. Globe, Apr. 17, 1998, at B4.
Shelley Murphy, Worst Fears Came True as Informant Lost Race for
His Life, Bos. Globe, Apr. 23, 1998, at B10.
Patricia Nealon, Ex-Agent Says He Told of Informer[:] Fringe
Gangster Turned Up Dead, Bos. Globe, Apr. 23, 1998, at B1.
Peter Gelzinis, 'Good' Guys Weren't Good to Halloran, Bos. Herald,
Apr. 23, 1998, at 6.
Ralph Ranalli, Ex-FBI Honcho: Agent Tipped Mobsters on Stoolie,
Bos. Herald, Apr. 23, 1998, at 1.
Patricia Nealon, Prosecutor Hints Ex-FBI Handler of Bulger, Flemmi
May Face Charges, Bos. Globe, Apr. 25, 1998, at B3.
Ralph Ranalli, Ex-FBI Agent Likely to Take Fifth, Bos. Herald, Apr.
25, 1998, at 1.
Ralph Ranalli, Ex-Agent Wants to Clear His Name, Bos. Herald, May
1, 1998, at 5.
Ralph Ranalli, '60 Minutes' Focuses [on] Hub FBI-Gangster Ties,
Bos. Herald, May 10, 1998, at 16.
- 37 -
Patricia Nealon, DEA Agent Describes a Cocky Bulger, Bos. Globe,
May 16, 1998, at B4.
Ralph Ranalli, Whitey Taunted Fed About Slain Stoolie, Bos. Herald,
May 16, 1998, at 15 (article includes photograph of Halloran).
Patricia Nealon, Ex-FBI Official Tells of Keeping Bulger On, Bos.
Globe, May 22, 1998, at B5.
Ralph Ranalli, Witness Weld; Ex-U.S. Attorney Believed FBI Had
'Problem,' Bos. Herald, May 27, 1998, at 1 (describing Weld's
testimony).
Peter Gelzinis, Stippo Did Just What He Needed to Stay Alive, Bos.
Herald, May 28, 1998, at 6.
Ralph Ranalli, FBI's Mafia Bugs in Peril — Key Wiretap Requests May
Have Contained False Info, Weld Testifies, Bos. Herald, May 28,
1998, at 1 (recounting Weld's testimony).
Ralph Ranalli, Cop: Whitey Linked to IRA Gun-Running, Bos. Herald,
June 3, 1998, at 6.
Patricia Nealon, Witness: FBI Let Languish a Tip Tying Bulger to
Murder, Bos. Globe, June 4, 1998, at F8 (noting Murray's tip).
Ralph Ranalli, FBI Was Allegedly Told of Bulger Role in Murder, Bos.
Herald, June 4, 1998, at 4 (detailing Murray's allegations).
Matthew Brelis, FBI Out of Balance[:] The Legendary Federal Agency,
Its Reputation Shaken, Looks to Regain Its Sound Footing, Bos.
Globe, June 14, 1998, at F1.
David Webber, Ex-Detective Says He Warned Kin: Don't Tape Whitey,
Bos. Herald, June 16, 1998, at 14.
Patricia Nealon, Ground Rules for Flemmi Grilling Eyed, Bos. Globe,
June 25, 1998, at B4.
Ralph Ranalli, Feds Hoping for a Hit from Mobster's Info on Murders,
Bos. Herald, July 20, 1998, at 1.
Shelley Murphy, Cases Disappear as FBI Looks Away, Bos. Globe, July
22, 1998, at A1 (five-part series includes photograph of Halloran).
Ralph Ranalli, Fla., Ok. Will Grill Turncoat Mobster — Hope to Solve
Murders, Bos. Herald, July 23, 1998, at 5.
- 38 -
Ralph Ranalli, Mystery Swirls Around '64 Mob Slaying, FBI Link, Bos.
Herald, July 28, 1998, at 10.
Ralph Ranalli, Questions Arise over FBI Agent's Knowledge of
Slaying, Bos. Herald, Aug. 5, 1998, at 1.
Ralph Ranalli, Ex-FBI Agent Says Slain Dealer Was Informer, Bos.
Herald, Aug. 6, 1998, at 6.
Patricia Nealon, FBI Informant Runs Risk of Further Charges[;] Judge
Refuses to Grant Request to Restrain Prosecutors' Questioning of
Flemmi, Bos. Globe, Aug. 19, 1998, at A19.
Patricia Nealon, Flemmi Denies Protecting Agent in Court, Bos.
Globe, Aug. 27, 1998, at B4.
Ralph Ranalli, Flemmi's 'Immunity' Challenged — Quizzed on Stand
About Alleged Hit List, Bos. Herald, Aug. 27, 1998, at 20.
Patricia Nealon, Mob Trial Judge Orders Flemmi to Answer Some
Questions, Bos. Globe, Sept. 2, 1998, at B2.
Ralph Ranalli, Flemmi Admits Tip-Off to Informant's Identity, Bos.
Herald, Sept. 2, 1998, at 6.
- 39 -
— Dissenting Opinion Follows —
- 40 -
TORRUELLA, Circuit Judge (Dissenting). The key difference
between myself and the majority concerns the legal salience of the
1985 indictment, trial, and acquittal of Jimmy Flynn to the
plaintiffs' FTCA claims. In my view, the majority turns a blind eye
to the fact that, because a criminal conviction can only be secured
by an exceedingly high standard of proof, many of the acquitted are
in fact guilty of the crimes with which they are charged, and that
it was therefore entirely reasonable for the Donahue and Halloran
families to continue to view Flynn as the responsible party despite
his acquittal at trial. I believe that this fact carries
significant weight in our FTCA accrual analysis. Our cases have
made clear that what it takes to trigger accrual in the FTCA context
depends, in part, on whether the injured party already has a
plausible explanation for his injury in hand. See Cascone v. United
States, 370 F.3d 95, 105 (1st Cir. 2004). Because Judge Lindsay
correctly appreciated the significance of both the prosecution of
Flynn and the large span of years between the murders and the
discovery of the government's complicity, Donahue v. FBI, 204 F.
Supp. 2d 169, 177-78 (D. Mass. 2002), I would leave undisturbed the
district court's judgment in favor of the plaintiffs.
I.
The Halloran estate filed an administrative claim with the
United States on September 25, 2000, and the Donahue estate followed
suit on March 29, 2001. Therefore, their claims are barred by the
-41-
FTCA's two-year limitations period only if they accrued prior to
September 25, 1998 for the Halloran estate, and prior to March 29,
1999 for the Donahues. 28 U.S.C. § 2401(b). The majority holds
that the plaintiffs' FTCA claims accrued "no later than" September
2, 1998. Maj. Op. at 25. This was the day after a ruling by Judge
Wolf publicizing statements by Stephen Flemmi acknowledging that he
had been informed by the FBI of Edward Halloran's attempt to provide
evidence linking Flemmi and James "Whitey" Bulger to the 1981 murder
of Roger Wheeler. Id. at 11.
For reasons laid out below, I believe that the plaintiffs'
claims did not accrue before March 30, 1999, which was several
months before the district court issued its findings in United
States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999), substantiated
in relevant respect by Kevin Weeks in his plea agreement of July
2000.
A.
In the months leading up to his murder, a number of
interested parties wanted Halloran dead, and for reasons unrelated
to the information he provided against Bulger. This list included
Jimmy Flynn and Jimmy Mantville, who in fact later went on to claim
credit for the hit.6 As we noted in McIntyre, "members of Winter
6
According to information later obtained from Weeks, Mantville
claimed responsibility for Halloran's murder "even though he had
nothing to do with it." Weeks reported that Mantville told him
after the murder, "We finally got him," meaning Halloran.
-42-
Hill had made several attempts on [Halloran's] life" before January
1982, when Halloran first approached the FBI with information about
Bulger. McIntyre v. United States, 447 F. Supp. 2d 54, 82 (D. Mass.
2006) (emphasis added). The sources of the anti-Halloran sentiment
were not all related to his cooperation in the Wheeler probe. Flynn
apparently had his own reasons for pique: during Flynn's trial, the
prosecution theorized that Flynn killed Halloran because Halloran
had facilitated Flynn's arrest on gun charges. Moreover, in a
dramatic twist, Halloran himself unequivocally identified Flynn as
his killer in a dying declaration. This provided strong evidence
of Flynn's role as the gunman. Cf. Giles v. California, 554 U.S.
353, 397 (2008) (Breyer, J., dissenting) (explaining that a dying
declaration is one made "when every motive to falsehood is silenced,
and the mind is induced by the most powerful considerations to speak
the truth" (citations and internal quotation marks omitted)). The
state bolstered the credibility of this identification when it
prosecuted Flynn for the murders. So did the FBI, when it took
steps to ensure that other information potentially linking Bulger
to the murders was ignored or suppressed.
B.
This background is crucial to this case because it shows
that the Donahue and Halloran estates were not similarly situated
to the families of other Bulger victims who have raised claims
before this court. See McIntyre v. United States, 367 F.3d 38 (1st
-43-
Cir. 2004) (discussing claims by estates of John McIntyre and Roger
Wheeler); Callahan v. United States, 426 F.3d 444 (1st Cir. 2005)
(discussing claims by the estate of John Callahan). In particular,
in those cases, no one had been charged and prosecuted for any of
the murders, and Bulger was the prime suspect. Here, the Halloran
and Donahue families held the sincere and reasonable belief that the
murderer had been identified in May of 1982, when Halloran declared
that Flynn was responsible, and the state subsequently prosecuted
him, and they held this belief for sixteen years before learning the
still more sordid truth. As Donahue's widow later explained,"[e]ven
after we watched the jury find Mr. Flynn not guilty, I assumed that
he must have been the murderer but that somehow his lawyer had
gotten him off." Although Halloran's widow "did not follow" Flynn's
trial, as it "was not going to bring Brian back," she stated that
she "always assumed that they charged the person responsible."7
Prior to the initiation of these lawsuits, the victims' families
were told by those investigating the murders, to the extent they
were told anything at all, that Flynn was responsible. Because the
plaintiffs had a significantly more plausible explanation for their
injury in hand, it would have been reasonable for a person in these
plaintiffs' position to dismiss the apparently outlandish
7
Indeed, until the publication of Salemme in the fall of 1999,
Donahue's widow testified that she had never " . . . considered or
had reason to consider that my own government, the same people who
arrested and prosecuted Mr. Flynn, could have somehow been involved
in my husband's murder."
-44-
possibility of a causal link between the FBI and the
Donahue/Halloran murders as ungrounded speculation, at least until
more substantiated evidence of the connection emerged in the fall
of 1999.8
While it is true that our FTCA cases require that we
impute to the plaintiffs knowledge of events widely reported in the
media, see Rakes v. United States, 442 F.3d 7, 20 (1st Cir. 2006),
it does not require us to insist that every plaintiff, however
differently situated, draw the same conclusions from that knowledge.
Indeed, our cases counsel precisely the opposite. See Cascone, 370
F.3d at 104. The majority appears to acknowledge as much, when it
states that an FTCA claim accrues when "a prospective plaintiff has
enough information to lead a reasonable person in his position to
seek advice about a possible claim against the government." Id.(emphasis added). Indeed, our cases require us to distinguish
between plaintiffs who have good, even if not overwhelming, reason
to suspect government malfeasance lying behind their injury, and
plaintiffs who have no such reasons. Compare Skwira, 344 F.3d 64(1st Cir. 2003), with Cascone, 370 F.3d 95 (arising out of same
8
The majority avers that in focusing here on who committed the
murders, we have lost sight of the fact that "this is a suit which
alleges wrongful disclosure, not wrongful death." Maj. Op. at 32
n.5. Let me therefore be clear: the claim is that the reasonable
belief in Flynn's guilt means that the plaintiffs were not, in the
exercise of due diligence, required to give credence to prima facie
outlandish speculations in the papers that an internal leak at the
FBI caused the murders.
-45-
pattern of criminal activity as Skwira). In Skwira, the defendants
were aware that the government had exhumed the body of the deceased,
had informed them that the cause of death listed on his death
certificate was incorrect, and had initiated an investigation into
the deaths occurring in the ward of the VA hospital where Skwira
died -- meaning, given the context, that it was overwhelmingly
likely that the malefactor was a government employee. Skwira, 344
F.3d at 80. They had, moreover, expressed their "surprise" and
"shock[]" that Skwira had died of a heart attack given that he was
admitted to the hospital "only for treatment of his alcoholism." Id.By comparison, in Cascone, we insisted that "the particular
circumstances of individual plaintiffs can be relevant to" the
accrual of their FTCA claim, and that "[t]he issue is whether a
reasonable person similarly situated to the plaintiff would have
known the necessary facts." Cascone, 370 F.3d at 104 (emphasis in
original). The deceased in Cascone was a seventy-four-year-old man
with a history of serious heart disease, including a condition that
was listed as a cause of death, making it "perfectly reasonable" for
the plaintiffs to believe "that the pneumonia [for which he was
admitted to the hospital] exacerbated his preexisting heart
conditions or that his heart problems simply happened to flare up
at that point . . . ." Id. at 104 n.12. Thus, despite press
coverage of the crimes, we found that
[n]one of the Cascones had a reasonable basis
to suspect that Cascone had died of anything
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but his preexisting heart condition, even if
they should have known there was an
investigation. "Where the plausible
explanation [for death] is one of purely
natural causes . . . , there is initially no
reasonable basis for supposing [misconduct].
It is not the purpose of the discovery rule to
encourage or reward simple paranoia."
Id. at 105 (citing Thompson v. United States, 642 F. Supp. 762, 768
(N.D. Ill. 1986)).
Just as the Cascones had no reason to suspect that the
explanation for Michele Cascone's death was false, and that in fact
he had been murdered by a government nurse, the Donahue and Halloran
families had no reason to suspect that the government's insistence
that Flynn was the gunman was a sham, and that in fact the
government itself bore a great deal of the responsibility for the
murders. It must be borne in mind in this context that the high
standard of proof required to secure a criminal conviction means
that factually guilty individuals will regularly be acquitted of
their crimes. This suggests, in turn, that it would not have been
reasonable to infer from Flynn's acquittal that Flynn was actually
innocent, and that someone else had committed the murders,
particularly in light of the significant evidence implicating Flynn
in the murders. The view that Flynn had simply beaten the charges
was a rather more likely scenario than the far more outlandish and
disturbing truth that emerged years later.
For these reasons, I do not believe the plaintiffs' FTCA
claims accrued until well past the March 29, 1999 cut-off date, as
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it was not until many months later -- on September 15, 1999 -- that
Judge Wolf's Salemme decision came down, and that Winter Hill
associates John Martorano and Kevin Weeks subsequently began
testifying as to Bulger and Flemmi's role in the murders.
C.
The majority raises a host of arguments to rebut this
conclusion. First, the majority points to Patterson v. United
States, 451 F.3d 268 (1st Cir. 2006), and claims that the Donahue
and Halloran families "lack even the evanescent firmness of a
wrongful conviction." Maj. Op. at 31. Respectfully, this is a
misreading of Patterson. In Patterson, we rejected a plaintiff's
argument that her FTCA claim only accrued when she was informed by
her sister, in the summer of 2002, that the FBI was aware of plans
to murder her father, failed to take any actions to prevent it, and
even allowed two innocent men to be convicted for the crime.
Patterson, 451 F.3d at 269-70. But, pace the majority, Patterson
does not stand for the proposition that a settled and justified
belief in someone else's guilt can have no relevance to the accrual
of an FTCA claim. Patterson did not address that issue at all.
Given the newly discovered evidence that emerged in that case, the
plaintiffs were on notice that the original defendants were
factually innocent, and that someone else had committed the murder
(as it turns out, Flemmi's brother Vincent). See generally
Commonwealth v. Peter J. Limone, 2001 Mass. Super. LEXIS 7 (Mass.
-48-
Super. Ct. Jan. 8, 2001). In contrast, the Donahues and Hallorans
knew only that a jury had not been confident in Flynn's guilt beyond
a reasonable doubt. This is a far cry from being told that Flynn
was innocent, and that someone else, perhaps with the tacit approval
of the FBI, had committed the murders.
Moreover, the effect of the wrongful convictions on the
accrual of the plaintiffs' FTCA claim played no role in the
Patterson court's reasoning, for good reason. The Massachusetts
Superior Court vacated the wrongful convictions on January 8 and 18,
2001. However, the plaintiffs did not file their claims until
January 27, 2003, more than two years later, and so no claim of
reasonable reliance on the Limone and Salvati convictions was in the
offing. See Patterson, 451 F.3d at 269. Instead, the plaintiffs
raised arguments of lack of notice and medical disability. And,
although the court rejected those arguments, pointing inter alia to
the December 2000 publicity surrounding the news of the FBI's
corrupt role in the murder and wrongful convictions, it made clear
that what was "most important[]" to its analysis was the fact that
one of the plaintiffs had himself been interviewed about these
developments in December 2000, and therefore clearly knew of and,
apparently, was "troubled by," the allegations. Id. at 273. This,
of course, was enough to start the FTCA clock ticking. Cf. Merck
& Co., Inc. v. Reynolds, 130 S. Ct. 1784, 1789-90 (2010) (holding
that a cause of action accrues "when the plaintiff did in fact
-49-
discover," or "when a reasonably diligent plaintiff would have
discovered, 'the facts constituting the violation' -- whichever
comes first." (emphasis added)).
Second, the majority also seeks to discredit the district
court's emphasis on the lengthy period of time between the murders
and the revelations of FBI corruption. The majority does so by
relying on McIntyre, Maj. Op. at 29, for the proposition that the
extensive interval between the murders and the Salemme revelations
has no bearing on the reasonableness of attributing knowledge of the
latter to the plaintiffs. McIntyre involved, in pertinent part,
claims arising out of the murder of Roger Wheeler in 1981. The
court rejected the Wheeler estate's claims as untimely, reasoning
that the widespread publicity from the Salemme hearings put the
Wheelers on notice of their claims against the government.
McIntyre, 367 F.3d at 58-59. But, again, the majority ignores the
fact that the Donahue and Halloran families are differently situated
from the Wheelers in one absolutely central respect. Unlike the
Wheelers, the Donahue and Halloran families had been told that the
murderer had been identified, and by bringing Flynn to trial, the
government represented that they were confident -- indeed, confident
beyond a reasonable doubt -- in his guilt. At no point after
Flynn's acquittal did the government give the plaintiffs cause to
think otherwise. According to Donahue's widow, "every time [she]
asked the FBI for information regarding [her] husband's murder,
-50-
[she] was told that the FBI had none." (Emphasis added). (Not
content with mere stonewalling, at one point FBI agents accused her
of having an affair, which the agents suggested was the cause of the
murder). The Wheelers had no officially sanctioned culprit on whom
to pin responsibility for their injury. The Halloran and Donahues
did. This fact changes the significance of the many intervening
years -- from years spent seeking unforthcoming answers to an
unsolved riddle, to years in which an officially sanctioned belief
hardens into taken-for-granted fact.
Third, under the rubric of "generally available
information," the majority points to John Morris' testimony during
the Salemme hearings, as well as the ensuing media publicity. See
Maj. Op. at 25-28. However, Morris's revelation on April 22, 1998
that Connolly had leaked news of Halloran's cooperation to Bulger
did not call into question the reasonableness of the families'
belief that Flynn was the killer. Morris's testimony provided a
previously undisclosed motive for Bulger to kill Halloran, but
others, including Flynn, shared a similar motive. Cf. McIntyre, 367
F.3d at 56 ("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."). Where
Bulger was but one of a number of individuals with a motive to kill
-51-
Halloran, where Halloran identified one of those non-Bulger
individuals in a dying declaration, and where the government
insisted on the same at trial, the bruiting about in the papers of
a possible Bulger-FBI-Halloran connection, some sixteen years after
the fact, cannot be deemed sufficient to set the limitations clock
ticking.
The majority notes that "one need not have irrefutable
proof" that an injury was caused by the government in order to file
an administrative claim under the FTCA. Maj. Op. at 29 (citing
Skwira). That much is true. But that is not yet to say quite
enough. The Donahues and Hallorans had every reason to believe, and
had in fact believed for sixteen years, that someone other than
Bulger had committed the murder. The government insisted as much
by bringing Flynn to trial and subsequently took no steps to
disabuse the plaintiffs of this belief, even though the facts
showing its falsity were locked away in the brains of recalcitrant
government agents. So although the level of proof necessary for an
injured party to file a claim under the FTCA is surely not
"irrefutable," given the situation in which the Donahues and
Hallorans found themselves, it was nevertheless substantial, and it
was certainly more substantial than in cases where "overwhelmingly,
the most likely malefactor was one of a very limited group of
government employees," and involved "the same small cast of
characters," McIntyre, 367 F.3d at 53. It makes a crucial
-52-
difference to our FTCA analysis, in other words, that the plaintiffs
had a "plausible explanation for death" that does not provide a
basis "for supposing [government] misconduct." Cascone, 370 F.3d at
105 (internal quotation marks and alterations omitted).
II.
The majority rejects the plaintiffs' claim of fraudulent
concealment as well, on grounds that the plaintiffs "failed to
exercise due diligence in investigating the possibility of a claim."
Maj. Op. at 34. The gist of the majority's argument here is that,
even though the Halloran and Donahue estates did not actually know
about the media reports about the FBI-Bulger link, they should have,
and they should therefore also have conducted further inquiry into
the matter, a duty imposed purely by the fictional knowledge of
newspaper articles that the court attributes to them -- and even
though had they actually conducted such an inquiry, the only
direction it would have led them is down the garden path.
I first note that the majority's reasoning under this
heading depends crucially upon its central holding, that the
Halloran and Donahue estates may be attributed with knowledge of the
media reports of an FBI-Bulger link to the murders. This is because
it is only if the presumption of such knowledge is reasonable that
it makes sense to describe a failure to institute further
investigations as some kind of shirking of an epistemic duty. If,
as I have argued, the Halloran and Donahue estates have a perfectly
-53-
reasonable explanation for their ignorance -- clothed in the figure
of one Jimmy Flynn -- then there is no duty of further investigation
there to be shirked.9
Secondly, it is clear that any efforts by the Halloran and
Donahue estates to further corroborate the media reports of a FBI-
Bulger link to the murders would have been pointless. The
government was at this point pursuing a strategy of dissimulation,
denial and stonewalling. Judge Wolf noted in his Salemme opinion
that government intransigence during the hearings meant that it
remained unclear whether Flemmi and Bulger played any role in
Halloran's murder. Salemme, 91 F. Supp. 2d at 212-13. The
government withheld key documents from the defense relating to
Halloran's murder, in violation of discovery obligations, until
after Morris had testified, thus preventing cross-examination of
Morris as to their content. See United States v. Flemmi, 195 F.
Supp. 2d 243, 249-50 & n.39 (D. Mass. 2001) (detailing FBI
9
I note that even if our cases require attributing knowledge
of widely disseminated media reports, this is because this is "the
only practicable course," given the function of a statute of
limitations as a "rule of repose." Rakes, 442 F.3d at 20. It is
not because it is somehow objectively unreasonable for people in
the plaintiffs' position -- whose husbands and fathers had been
brutally murdered, and who were left to raise small children on
their own -- to refuse to re-open an inquiry long thought closed.
Re-opening such an inquiry would carry significant psychic costs,
and we need not go so far as to imply that refusing to bear those
costs is somehow per se unreasonable, even if we must, for other
reasons, nevertheless attribute the corresponding knowledge. The
suggestion that this case may be decided under the rubric of the
plaintiffs' unreasonable shirking of epistemic duties is simply to
add insult to injury.
-54-
misconduct during the Salemme hearings). Indeed, not only did the
government fail to produce the FBI reports containing Halloran's
allegations against Bulger and Flemmi during the Salemme hearings,
they insisted during the discovery phase of this case that it was
"not known how Bulger and Flemmi obtained information that Halloran
was providing information to the FBI," and noted that there were
other reasons why members of Winter Hill, and its hangers-on, might
have wanted Halloran dead. This disingenuous profession of
ignorance was made in 2005 -- years after the publication of Salemme
and Martorano and Weeks' confirmations of the FBI's complicity in
the murders. See United States v. Connolly, 341 F.3d 16, 23-24 (1st
Cir. 2003) (describing Weeks and Martorano's testimony at FBI agent
John Connolly's trial). Taking the government at its word here
means that the plaintiffs -- who, of course, had far less access to
the relevant information -- cannot be charged with uncovering
corroborating evidence in the exercise of "due diligence." See
Attallah v. United States, 955 F.2d 776, 780 (1st Cir. 1992).
III.
Unsurprisingly, the lurid story of the FBI's decades-long
entanglement with Bulger and Flemmi has given this court plenty of
opportunity to consider these issues. Our cases on this topic
exhibit an arguably gratuitous hostility to FTCA claimants. See
Skwira, 344 F.3d at 69 (holding that a plaintiff's wrongful death
claim was untimely, even though at the date we held their claim to
-55-
have accrued, the plaintiffs could not possibly have discovered that
the decedent had been poisoned as there were no known scientific
methods for testing for the drug used, and, moreover, the plaintiffs
were regularly told by a government employee that autopsy results
were consistent with death by natural causes). This hostility is
particularly indefensible given that the heightened pleading burden
plaintiffs bear under Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50
(2009), means that plaintiffs who are unable to corroborate their
claims are likely to find themselves on the receiving end of a
motion to dismiss. The majority suggests that FTCA plaintiffs may
file a claim with insufficient corroborative evidence and then
request the agency to hold the claim in abeyance as further
investigation proceeds. Maj. Op. at 30, citing Skwira, 344 F.3d at81-82 n.17. The statutory text neither imposes such a duty on FTCA
plaintiffs, nor requires agencies to agree to such requests. See
28 U.S.C. §§ 2671-80. It is unclear that this paragon of lawyerly
procedure -- sue now, ask questions later -- would occur to any but
the most litigiously-minded or chronically risk-averse layman.
Moreover, by requiring premature filing of FTCA claims, the
majority's position may well require lawyers to act in contravention
of both the pleading standards established by the Federal Rules of
Civil Procedure and their ethical obligations.10
10
Fed. R. Civ. P. Rule 11(b) provides that "[b]y presenting to
the court a pleading, written motion, or other paper . . . an
attorney or unrepresented party certifies that to the best of the
-56-
Despite our warning in Cascone that our FTCA jurisprudence
should not "reward or encourage simple paranoia" among plaintiffs,
our cases may give the impression of counseling precisely this --
namely, that injured parties should bring their claims as soon as
they learn of uncorroborated speculation in the papers or even the
mere "rumor of a claim," for fear of later discovering their claims
to be forever barred. Because it in effect lowers the bar for
accrual to a "mere hunch, hint, suspicion, or rumor of a claim,"
McIntyre, 367 F.3d at 52, today's decision is another step down this
paranoia-inducing road. Our cases, stingy as they already are, do
not require this result, nor should rex non potest peccare,11 when
applied in the twenty-first century, allow for such an unjust
outcome which rewards official uncontrolled wickedness. I dissent.
person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances: . . . (3) the factual
contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation and discovery." ABA Model
Rules of Professional Conduct Rule 3.1 provides that "[a] lawyer
shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so
that is not frivolous, which includes a good faith argument for an
extension, modification or reversal of existing law."
11
"The King can do no wrong." See William Blackstone, I
Commentaries *237.
-57-