Donahue v. United States ( 2011 )

ORDER OF COURT

LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges,

statement on denial of rehearing en banc.

Under the Constitution, federal courts may not make decisions based on sympathy to parties and may not displace the judgments made by Congress in non-constitutional matters. The legal issue presented by these cases is not whether the conduct of the FBI was shameful; it was. It is not whether plaintiffs are victims of that conduct; they are.

However wronged the plaintiffs, the issue is whether these plaintiffs have complied with the stringent limitation period set by Congress for claims under the Federal Tort Claims Act. 28 U.S.C. § 2401(b). Because the money to pay victims comes from the United States, those time limits as a matter of law are required to be strictly construed. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Whether the federal courts even have jurisdiction over the claim depends upon the timely filing of an administrative notice of claim. 28 U.S.C. §§ 2401(b), 2675(a); Kubrick, 444 U.S. at 117, 100 S.Ct. 352. Our case law requires that the point of view of an objectively reasonable person be used, not the point of view of the particular plaintiffs. Cascone v. United States, 370 F.3d 95, 104 (1st Cir.2004); McIntyre v. United States, 367 F.3d 38, 52 (1st Cir.2004).

There were many well-publicized admissions — particularly those of FBI Agent Morris whose dramatic courtroom disclosures specifically about the FBI’s role in the May 11, 1982, double murder of Hallo-ran and Donahue were corroborated by several other witnesses — which put objectively reasonable persons on notice of these claims. Despite this, plaintiffs did not act within the required time limits to file the required claims. It is an easy step to file a claim. A majority of a panel of this court, which took these claims very seriously, concluded that the plaintiffs did not file a timely claim, in light of the arguments made and evidence presented by plaintiffs. The courts cannot assume the role of advocates and create arguments never made. Nor was there any error in the legal standards used in making that decision.

That the courts have no jurisdiction to hear a law suit for damages under the FTCA because of plaintiffs’ delay does not mean that the two other branches of government are precluded from providing a remedy. That is a decision for the Congress and for the Executive, not for the federal courts, which have no jurisdiction to award relief.