Donahue v. United States

; Callahan,

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.

- 19 - 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,

(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

- 20 - 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,

;

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,

. 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,

; 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").

- 21 - 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,

. 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,

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,

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,

. 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.

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."

Morris further

acknowledged that, as a result of this leak, "he believed that

Bulger and Flemmi may have killed Halloran."

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,

. 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.

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.

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,

204 F. Supp. 2d 169, 177-78

. 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,

(D. Mass. 2002), I would leave undisturbed the

district court's judgment in favor of the plaintiffs.

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.

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.

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."

(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."

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 . . . ."

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

-46- 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."

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

-47- 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.

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,

. 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 at 81

-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,