Tort Law - First Circuit declares widespread publicity triggers claim accrual under Federal Tort Claims Act - Donahue v. United States.

• Jurisdiction: United States
• Date: 22 December 2011
• Author: Connor, Bryan M.

Tort Law--First Circuit Declares Widespread Publicity Triggers Claim Accrual Under Federal Tort Claims Act--Donahue v. United States, 634 F.3d 615 (1st Cir. 2011)

The Federal Tort Claims Act (FTCA) affords private parties the opportunity to bring suit against the United States for certain types of tortious harm caused by government employees. (1) An FTCA claim generally accrues at the time of injury, but in circumstances where either the injury or its cause is not immediately apparent, federal courts employ a discovery rule that delays accrual until the plaintiff knows or reasonably should know the factual basis of his claim. (2) In Donahue v. United States, (3) the United States Court of Appeals for the First Circuit considered whether publicity regarding the government's role in causing the plaintiffs' injuries was sufficient to start the running of the FTCA claim-accrual period. (4) The court held that the two-year statute of limitations time barred the plaintiffs' FTCA claims because widespread media coverage should have made them aware of the causal link between the government's actions and the deaths of their loved ones. (5)

In January 1982, Edward "Brian" Halloran, a member of the Winter Hill Gang, offered the FBI information implicating the gang's commander, James "Whitey" Bulger, and one of his top lieutenants, Stephen "the Rifleman" Flemmi, in the murder of businessman Roger Wheeler. (6) Unbeknownst to Halloran, FBI agent John Connolly and his supervisor John Morris had recruited Bulger and Flemmi as informants to infiltrate Boston's Italian Mafia, and the agents soon learned of Halloran's allegations. (7) On May 11, 1982, Halloran caught a ride from his neighbor, Michael Donahue, when a car pulled alongside them and bombarded their vehicle with gunfire, killing Donahue instantly and mortally wounding Halloran, who died in the ambulance. (8) The FBI was interested in Bulger and Flemmi as potential suspects; consequently, Connolly and Morris prevented the emergence of information implicating the pair in the murders. (9) In 1985, the Suffolk County District Attorney tried Winter Hill Gang associate James "Jimmy" Flynn for the murders, but the jury acquitted Flynn, and the murders remained unsolved until the mid-1990s. (10)

In 1995, the United States Attorney for the District of Massachusetts obtained a lengthy indictment of Bulger, Flemmi, and other Winter Hill Gang associates. (11) Morris testified under a grant of immunity on April 22, 1998, and admitted that he notified Connolly about Halloran's offer to implicate Bulger in Wheeler's murder, and further testified that after the Donahue and Halloran murders, he told Connolly that he "did not want another Halloran" the next time they passed information to Bulger and Flemmi. (12) Morris's testimony spurred months of local and national media coverage detailing the FBI's connection to Bulger that led to the Donahue and Halloran murders. (13) The hearings concluded in October of 1998, resulting in District Court Judge Mark Wolfs exhaustive September 15, 1999 opinion, which detailed the depth of the FBI's improper relationship with Bulger and Flemmi. (14)

The Halloran and Donahue families filed administrative claims with the FBI on September 25, 2000 and March 29, 2001, respectively, and after the government failed to satisfy each claim, the plaintiffs sued separately. (15) The United States brought motions to dismiss both cases based on the expiration of the FTCA statute of limitations, but the court found that the Donahues and Hallorans were unaware of the media reports and held that it was reasonable for them to be unaware of the factual basis of their claims due to their belief that Flynn was the murderer, the sixteen year gap between his trial, and the reports of the FBI's involvement. (16) In a consolidated bench trial of the Halloran and Donahue suits, the court awarded the Halloran family $2,061,000 and the Donahue family $6,335,100, which the Government appealed by challenging the denial of its motions to dismiss. (17) The United States Court of Appeals for the First Circuit reversed the denial of the Government's motions to dismiss in a two to one decision, holding that the claims were time barred because they accrued no later than September 2, 1998 based on the months of testimony and media scrutiny outlining the link between the FBI and the murders. (18)

Enacted in 1946, the FTCA acts as a limited waiver of sovereign immunity aimed at granting redress to plaintiffs who suffer negligent or wrongful tortious injury at the hands of a government actor. (19) At its genesis in United States v. Kubrick, the FTCA discovery rule was influenced by the discovery rule that the Court had previously applied to claims brought against the government under the Federal Employers Liability Act (FELA). (20) While an FTCA claim generally accrues at the time of injury, the discovery rule provides that certain claims do not accrue until a plaintiff knows or, in the exercise of reasonable diligence, should know of both the existence and the cause of his injury. (21) The FTCA discovery rule was originally applied in the medical malpractice context, but federal courts have since expanded its application to other kinds of claims arising under the FTCA. (22) The two-year FTCA statute of limitations begins to run at the moment the plaintiff's claim accrues. (23)

Under the discovery rule, a plaintiff has a duty to undertake reasonable diligence to investigate potential claims; the determination of the reasonableness of a plaintiff's diligence is fact-specific. (24) The framework for considering what a reasonable plaintiff should have known or discovered in the course of a diligent investigation is an objective one. (25) In light of these general guidelines, courts have had difficulty ascertaining what degree of knowledge provides a sufficient factual basis to trigger accrual under the discovery rule. (26) Courts have established that something less than definitive knowledge is required, but the threshold amount of knowledge has not been consistently stated. (27)

In assessing the amount of knowledge necessary for claim accrual under the FTCA, courts have differed as to whether reports in the media can supply a sufficient level of knowledge. (28) Over the last decade, the First Circuit has consistently held that plaintiffs should be charged with constructive knowledge of widely reported events. (29) In particular, the First Circuit has held that when certain facts and data achieve a level of notoriety, that notoriety can be reasonably imputed to prospective plaintiffs, satisfying constructive knowledge and triggering claim accrual. (30) In cases arising out of the same circumstances, however, the First Circuit has drawn a line distinguishing plaintiffs who have reason to suspect the government caused their injury from those who do not. (31)

In Donahue v. United States, the First Circuit once again considered whether widespread publicity of the government's role in causing the plaintiffs' injuries provided plaintiffs with sufficient factual information to start the FTCA claim-accrual period. (32) Stating that the plaintiffs' actual knowledge was not at issue, the court focused its assessment on the information available to the plaintiffs following Morris's testimony. (33) Noting that Morris's testimony and the subsequent media coverage painted a clear picture of the government's involvement in the murders, the court proclaimed that such widely available information provided more than a hunch of the government's involvement and triggered a duty on behalf of the plaintiffs to pursue a diligent investigation. (34) The court rejected the plaintiffs' argument that the sixteen-year gap between the murders and the coverage of Morris's testimony justified delaying accrual because it had ignored similar gaps in previous cases. (35) The court also rejected the plaintiffs' argument that they were reasonable in not investigating the connection between the government and their injury because they believed Flynn was the true killer despite his acquittal. (36) Citing the importance of Morris's testimony, the court asserted that the belief about Flynn was no longer reasonable once the FBI's impropriety became public knowledge. (37)

The court was unconvinced that the plaintiffs lacked sufficient knowledge to establish their claims until Judge Wolf published his opinion in late 1999, reasoning that the opinion was merely a more cogent presentation of the already well-publicized information available after Morris's testimony. (38) Despite expressing sympathy for the plaintiffs' troubles, the court recognized that the mechanical nature of the statute of limitations sometimes has harsh consequences. (39) The court charged the plaintiffs with knowledge of widespread media coverage, and held that this knowledge triggered accrual more than two years before the plaintiffs filed their claims, thereby rendering their claims time barred by the FTCA statute of limitations. (40)

In holding that the plaintiffs should have been aware of the publicity surrounding Morris's testimony, the First Circuit construed the discovery rule too narrowly and punished the plaintiffs for their blameless ignorance. (41) Relying heavily on cases that arose out of the relationship between the FBI and the Winter Hill Gang, the court skewed the reasonable person standard by comparing the Donahues and Hallorans to other plaintiffs who previously sued the government because of the FBI's relationship with Bulger. (42) However, unlike their predecessors, for sixteen years the Donahue and Halloran families reasonably believed that Jimmy Flynn--not the government--caused their injuries. (43) The Donahue plaintiffs were reasonable in not investigating the publicity surrounding Morris's testimony because the perceived cause of their family members' deaths was in hand; furthermore, there was no proof presented that they...